Chapter 5

Committee views and recommendations

Introduction

5.1
Residential aged care is a hybrid model of service delivery, awkwardly straddling the divide between being a health facility and support accommodation. The problem with this approach is that it is people who fall in the gap: people who are vulnerable, frail and aged, and who often lack an advocate who is both aware of their needs and is in a position to ensure their rights.
5.2
There is a lack of clarity about where the dividing line is between personal and clinical care, who should be responsible for delivering those different types of care, and who should be responsible for the standards of care. Until we solve the fundamental problem of defining what we want from residential aged care facilities (RACFs), no regulatory framework will be able to resolve these issues.
5.3
This lack of definition is not only felt at the service level, it is evident within policies, operational guidelines and funding frameworks within the Department of Health (Department) itself, which lack clarity and are often contradictory in how aged care is defined.
5.4
There has been a move to make RACFs more comfortable for residents, reflecting that RACFs are, for all intents and purposes, their home. However, it appears that this has been conflated with a move to reduce the clinical rigor of services in that 'home'. The committee strongly affirms that a lack of formality in appearance should not result in any lack of formality in clinical services.
5.5
This inquiry has demonstrated to the committee that gaps exist in the current framework for the delivery of clinical services in RACFs and that poor clinical care for older Australians who live in RACFs has too often been the result. The committee considers that the Single Aged Care Quality Framework (Single quality framework) which promotes person-centred care is a positive step forward. However, this inquiry has highlighted that much more needs to be done to promote a higher quality of care for people living in RACFs.
5.6
The committee considers that aged care stands at a crossroad. In light of the abuse uncovered at Oakden and the abuse that is being detailed by the Royal Commission into Aged Care Quality and Safety, the committee considers that it is imperative that we have person-centred care to ensure older Australians who require care in a RACF can both live and die with dignity.
5.7
The committee further considers that to get person-centred care, the sector needs person-centred regulation.

A wealth of advice

5.8
In the last decade there have been many reports and reviews into aged care, each with a series of well thought-out recommendations to improve aged care service delivery and the regulatory framework, with ideas on how to improve the interaction between aged care and the primary health and acute care sectors. These reports and reviews go back as far as the excellent report by the National Health and Hospitals Reform Commission in 2009 on how to improve and integrate the primary health and acute care sectors and the aged care sector. Many of these reviews and the key recommendations have been discussed in this report.
5.9
Most of these reviews have focused on one particular aspect of aged care service delivery or regulation. However, all have noted that aged care reform must be undertaken holistically, as each aspect is interrelated. Reviews into regulation have noted the need to update funding arrangements. Reviews into workforce supply have noted the need for increased governance and research.
5.10
There is a lack of clarity on whether the Department and the now regulator, the Aged Care Quality and Safety Commission (Aged Care Commission), have taken the advice of expert external reviews commissioned specially to solve the myriad aged care service delivery and regulation problems.
5.11
In order to ensure that the totality of reform recommendations have been appropriately captured and the interrelated nature of these recommendations has been taken into account, the committee considers that the Department should undertake a project to document the reforms currently undertaken and planned, and track these against the past decade of recommendations to improve aged care service delivery and regulation problems.
5.12
The Australian Government should then release clear advice on what progress has been made on each recommendation. This will be important both to ensure that previous good advice is appropriately acted upon and to assist in future reviews.

Recommendation 1

5.13
The committee recommends the Australian Government release its consolidated response to all recommendations in key reports made in the past decade to improve aged care service delivery and regulation, and its interaction with the primary health and acute care sectors.

Duty of care

5.14
The Department should be commended for developing the new Single quality framework standards, which have been greeted almost universally by aged care stakeholders as an important step forward in improving the standards expected in the aged care sector.
5.15
However, a remaining barrier to this person-centred care approach being fully realised is the lack of clear lines of responsibility.
5.16
As outlined by Leading Age Services Australia, there is an implication in the Aged Care Act 1997 that RACF providers hold an ultimate duty of care towards RACF residents. This would confer an oversight responsibility for all aspects of the care provided to RACF residents, whether directly by the RACF provider or by external mechanisms. However, this implied responsibility for duty of care lacks clarity and real-world testing.
5.17
This is an important principle to enact, to take into account the vulnerability of RACF residents, particularly those with any cognitive decline. Enacting this principle would go some way to address the reality of the reduced capacity of most RACF residents to adequately self-advocate, exacerbated by social isolation and lack of active day-to-day advocates for many elderly residents.
5.18
Clearly defining that RACF providers ultimately hold duty of care for all residents would outline that RACF providers are the last line of defence for frail, elderly people who may not be able to advocate for themselves. It should also be made clear that RACF providers have an overall duty of care to report any substandard care or issues of risk, even where they do not have a direct line of responsibility to deliver that care.

Recommendation 2

5.19
The committee recommends that the Australian Government clarify that residential aged care providers ultimately hold a duty of care to all residents.

Person-centred regulation

5.20
The new Single quality framework standards place great emphasis on the responsibility for RACFs to deliver person-centred care. However there does not seem to be a corresponding emphasis on person-centred regulation.
5.21
The committee is deeply concerned by the responses from the former regulator, the Australian Aged Care Quality Agency, deflecting any responsibility for the abject failure to regulate the quality of care standards at the facility in Oakden, which has ultimately led to this inquiry and arguably been a catalyst for the Royal Commission into Aged Care Quality and Safety. The committee remains concerned by some responses from the incoming regulator, the Aged Care Commission, and from the Department. There are some instances where both entities have deflected regulatory and oversight responsibility for care that occurs within the aged care environment.
5.22
Just as there should be a clearly defined principle that RACF providers have ultimate duty of care to RACF residents, there should be a clearly defined principle that the Aged Care Commission has ultimate duty of care for the regulation of aged care.
5.23
This would take the form of the Aged Care Commission having a no-wrong- door approach to issues relating to poor care, of any kind, that occurs within a RACF. The Aged Care Commission must confirm that, where the care in question sits outside its legislated area of responsibility, another responsible entity is taking appropriate steps to ensure the standard of that care is appropriately regulated, regardless of jurisdiction. In short, if all care that occurs in an RACF is the ultimate responsibility of the RACF provider, then it is the responsibility of the Aged Care Commission to oversee that duty of care. Where there are regulatory gaps, the Aged Care Commission must fill those gaps.

Recommendation 3

5.24
The committee recommends that the Australian Government implement a clearly articulated principle that the duty of care for the regulation of all care within the aged care residential setting ultimately rests with the Aged Care Quality and Safety Commission.

Research and data

5.25
This inquiry has received a broad range of evidence to show there is a dearth of data and research to support evidence-based innovation and policy making in the aged care environment. The Department has recently increased the range of clinical data being captured and reported by RACF providers. However, advice from stakeholders indicates this does not go far enough to provide for the full range of indicator data necessary to ensure quality care outcomes.
5.26
In addition to provider-level quality care indicators, there is a lack of sector- wide data capture which can be used to highlight broad areas for clinical improvement. This includes accurate mortality data. There is a disturbing amount of evidence to show that poor quality care is contributing to the early death of some RACF residents through avoidable incidents such as falls. This has gone unheeded to date, primarily because of a culture where the deaths of RACF residents is expected. This would not be tolerated in any other care environment and can no longer go unchecked in the aged care sector.
5.27
The Aged Care Workforce Strategy Taskforce developed a comprehensive plan to establish a centre for research translation to support the strategic investment, translation and uptake of research and innovations. This was envisioned to develop a minimum data set for objective care outcomes, as well as evidence-based care innovations.
5.28
The Department should be tasked with working closely with the Aged Care Commission and the aged care sector to prepare advice to government on how to realise the recommendations to establish a research body with responsibility for aged care research. Once established, this body should develop a plan of action for improved data capture and research.

Recommendation 4

5.29
The committee recommends the Australian Government establish a body with responsibility for aged care research.

Beyond regulation: a commission for quality and safety

5.30
During the Senate Community Affairs Legislation Committee inquiry into the bill to establish the Aged Care Commission, many stakeholders made recommendations to enhance its functions. Many of these recommendations focused on improving the capacity of the Aged Care Commission to move beyond regulating minimum care standards, to taking a role to actively drive improvement of aged care quality. The Department provided advice that additional consultations were planned for a second tranche of changes to the objectives of the Aged Care Commission. The committee strongly recommends these consultations should be prioritised.
5.31
Evidence presented to the committee indicates the Aged Care Commission has already taken steps to be actively involved in improving aged care standards. This stance is commended by the committee and should be continued and extended by the Aged Care Commission. It should continue to develop beyond the role of an accrediting agency seeking compliance to minimum standards, to truly become a commission for safety and quality in aged care. This would mean taking a role similar to that of the Australian Commission on Safety and Quality in Health Care (Health Care Commission) in actively supporting the improvement of care standards across the aged care sector, developing sector-wide clinical advice, guidelines and innovation.
5.32
The approach to drive continuous quality improvement could consider how to move the regulatory environment to one which promotes and incentivises open disclosure—potentially through an amnesty arrangement as suggested by some RACF providers—which can support early intervention to manage service problems before they become compliance issues.

Recommendation 5

5.33
The committee recommends the Australian Government continue work to expand the role of the Aged Care Quality and Safety Commission, in consultation with aged care stakeholders, to drive continuous improvement in levels of quality and safety in aged care.

A clear service framework

5.34
In chapter two, the committee outlined its deep concerns regarding the lack of clear and consistent answers to the questions about what kind of a service RACFs are considered to be. Are they supported accommodation? Do they provide sub-acute health services? This lack of clarity leads to a fundamental question around regulation: how can you regulate a service when it is not clear what that service is?
5.35
The lack of this most basic operational definition then filters down to all service delivery planning.
5.36
Evidence from all clinical professionals and organisations has stressed the need for significant improvements to operational planning in aged care. This would entail a clearly articulated model of care and supporting clinical governance. The lack of these two operational frameworks is the key failure in aged care planning which then drives the failures in care delivery.
5.37
The committee notes the clinical governance project being undertaken by the Health Care Commission and Aged Care Commission, which will likely result in a model clinical governance framework that RACF providers can use to adapt to their individual service situations. However, there remains the issue of how the regulation framework will then assess whether that clinical governance framework is appropriately implemented and adhered to in service delivery. The responsibility of RACF providers to develop and implement a localised clinical governance framework is not appropriately defined in the aged care standards.

Recommendation 6

5.38
The committee recommends that the Aged Care Quality and Safety Commission work collaboratively with the Department of Health, the Australian Commission on Safety and Quality in Health Care and aged care stakeholders to develop an industry model of care. This model of care should incorporate a model clinical governance framework which clearly defines the scope of personal and clinical care.

Recommendation 7

5.39
The committee recommends that the requirements for a model of care and clinical governance framework be more clearly articulated within the Single Aged Care Quality Framework, including clearly defined service outcomes expected from those frameworks.

Staffing levels

5.40
The committee concurs with the views of the Australian Medical Association that inadequate staffing prevents quality care. The committee is concerned with the evidence showing the contribution that low staffing levels make to the low quality of care experienced by residents, including the unacceptably high levels of missed care episodes. The committee is further concerned with the practice whereby there is often no Registered Nurse on duty. Evidence suggests this may result in Enrolled Nurses and aged care workers operating outside of their scope of practice. Furthermore, this can result in delays in accessing pain medication for some aged care residents and contributes to the inappropriate use of restrictive practice.
5.41
The committee notes there is a consensus view that staffing levels should be based on residents' care needs and the service context, and should be sufficient to provide an appropriate number of care hours per day from a range of appropriately qualified staff. While there are requirements in the Single quality framework standards for RACF providers to ensure appropriate levels of staff to provide quality care, there are no benchmarks for either providers to use as a guide or for assessors to use in accreditation. The committee considers that a definition is necessary to ensure proper regulation, and to ensure a Registered Nurse is always on duty to provide appropriate care and supervision, noting there may need to be some flexibility in the rural and remote service context.

Recommendation 8

5.42
The committee recommends that the Aged Care Quality and Safety Commission work collaboratively with the Department of Health, the Australian Commission on Safety and Quality in Health Care and aged care stakeholders to develop benchmarks for staffing levels and skills mix, which includes the requirement to roster an Registered Nurse on duty at all times, to assist residential aged care providers in staff planning and aged care assessors in regulating safe and appropriate staffing.

Restrictive practice

5.43
Possibly the most distressing evidence received by the committee relates to the high levels of restrictive practice being used in the aged care sector.
5.44
Evidence from legal bodies indicates that where restrictive practice is done without appropriate consent, it could be a criminal offence. At minimum, the inappropriate use of restrictive practice to address behaviours of concern, without first testing alternative interventions, is an abuse of the fundamental human rights of frail, elderly Australians. The fact that this is done routinely in so many circumstances, and it is alleged that it is done to reduce costs, is a national disgrace.
5.45
The committee is concerned by evidence that shows the rate of prescription of psychotropic medications is far higher than public health data indicates would be appropriate for purely therapeutic reasons. This indicates a disturbingly high rate of chemical restraint in the aged care sector. The committee is further concerned by the responses of the Aged Care Commission which indicate it believes this to be a matter of the individual performance of medical practitioners and not within its scope of regulation.
5.46
The committee notes the recommendation that the Chief Clinical Advisor of the Aged Care Commission must approve the use of antipsychotic medications for aged care residents, made by the review undertaken by Ms Kate Carnell and Professor Ron Paterson of the aged care regulatory regime. The committee concurs with the recommendation of this expert review.
5.47
The committee wishes to make its position quite clear: the high rates of restrictive practice within the aged care sector cannot be tolerated any longer. The current practice of light-touch regulation of restrictive practice has been proven a failure.
5.48
The committee acknowledges changes to the regulation of restrictive practice recently announced by the Minister for Older Australians and Aged Care, but does not believe these are robust enough to place appropriate limitations on the excessive use of restrictive practices in the aged care sector. The Australian Government must intervene as a matter of urgency to ensure that all restrictive practice in the aged care sector is, at minimum, compliant with the same regulation and oversight as restrictive practice in any other service context. Frail, elderly Australians deserve the same protections as anyone else.

Recommendation 9

5.49
The committee recommends the Australian Government take action, as a matter of urgency, to ensure the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector is extended to cover the aged care sector.

Recommendation 10

5.50
The committee recommends the Australian Government investigate, as a matter of urgency, changes to ensure that the use of antipsychotic medications in residential aged care facilities must be approved by the Chief Clinical Advisor of the Aged Care Quality and Safety Commission.

Safe medications

5.51
The committee is also highly concerned that the area of clinical practice that generates the most complaints, medications, is an area of practice where there appears to be little to no external oversight. The regulation of medications management has two elements: firstly to ensure that residents are prescribed the right medications, that there are no contraindications between various medications and de-prescribing reviews occurs at regular intervals; secondly, to ensure that medications are then dispensed and taken safely, that is to ensure that the person with the appropriate level of skill is overseeing the resident in taking the correct medications and is given the assistance needed to do so safely.

Recommendation 11

5.52
The committee recommends that the Aged Care Quality and Safety Commission develop a regulatory model to oversee medications management in residential aged care facilities.

Palliative care

5.53
As noted in chapter two, palliative care is a significant issue of clinical care in RACFs. The committee was deeply concerned by reports of inadequate pain management, inappropriate hospitalisation and a lack of consideration for the wishes and needs of aged Australians who live in RACFs and are nearing the end of their lives.
5.54
The committee considers that it is important that palliative care is carefully considered in the RACF setting. The committee considers that all people are entitled to have their comfort maximised and to die with dignity. However, the committee notes that there appears to be a significant variation about when palliative care should commence and what that means for aged Australians living in RACFs with progressive and incurable illnesses.
5.55
The committee considers that additional guidance may be required to ensure that all people have access to appropriate palliative care. The committee considers that RACF providers need greater support to deliver palliative care and providers should work with geriatricians, the Aged Care Commission and other stakeholders to ensure that a high standard of palliative care can be provided in RACFs.

Recommendation 12

5.56
The committee recommends that the Aged Care Quality and Safety Commission work with the Department of Health and aged care stakeholders to improve the palliative care environment in residential aged care facilities.

Wellness and reablement

5.57
The committee considers that there should be a focus on wellness and reablement for residents of RACFs to ensure that aged Australians are able to live healthy lives with the greatest degree of functionality possible. The committee understands that this may require a degree of flexibility on the part of providers and staff and requires a change in how people think about the role of RACFs.
5.58
The committee considers that maintaining healthy and functional lives should be a key consideration of RACF providers, but notes that providers may require some assistance to develop strategies to promote these goals.

Recommendation 13

5.59
The committee recommends that the Aged Care Quality and Safety Commission work with the Department of Health to develop mechanisms to increase the focus on wellness and reablement in residential aged care facilities.

Integration with primary health and acute care sector

5.60
The committee considers that the interface between RACFs and primary health and acute care needs to be better managed. The committee considers that this needs to include better access to GPs and allied health, as well as the acute care environment. The committee notes that the Primary Health Networks (PHNs) have already been working in this space to promote better coordination and integration between primary care providers and RACFs. The committee considers that this work should continue and that there may be a broader role for PHNs to play in integrating primary health, allied health care and the acute care sectors with RACFs. This integration and coordination requires action from multiple actors across the industry and related fields, the committee considers that the Department of Health should help to enable this transition to ensure that aged Australians living in RACFs receive the best care possible.

Recommendation 14

5.61
The committee recommends the Department of Health work collaboratively with the Aged Care Quality and Safety Commission, the Australian Commission on Safety and Quality in Health Care, Primary Health Networks, residential aged care providers and medical stakeholders to achieve better integration of the aged care environment with the primary health and acute care sectors.

Funding

5.62
The committee understands that many of these reforms will require funding. Funding has not been explicitly included within the committee's Terms of Reference and so it has decided not to make recommendations on this issue. However, the committee notes that it is important to consider issues surrounding clinical governance in RACFs when determining an appropriate model for funding aged care. Funding helps to set priorities and incentives. It is important that these incentives are correctly aligned and promote the behaviours and types of care that people would want for the older people in their lives.
Senator Rachel Siewert
Chair

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