The Australian Greens are generally supportive of the measures in the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021.
While we welcome the opportunity to have an inquiry into this Bill, we are disappointed with the short timeframe and the fact that stakeholders were asked to comment on the Bill without a copy of the draft regulations.
Restrictive practices
Restrictive practices have been a serious issue in aged care for more than 20 years. As highlighted by the Royal Commission into Aged Care Quality and Safety:
The inappropriate use of unsafe and inhumane restrictive practices in residential aged care has continued, despite multiple reviews and reports highlighting the problem. It must stop now.
This bill, and the associated draft regulations, improve the regulation of restrictive practices in aged care. The Greens welcome the introduction of behavioural support plans, monitoring and reporting, use of restrictive practices for the shortest time possible, and the requirement to gain informed consent for the use of any restrictive practice.
However, we believe the new regulations do not go far enough and do not fully implement the Royal Commission’s recommendations on restrictive practices.
The Royal Commission recommended that restrictive practices should be prohibited unless recommended by an independent expert. While the regulations require approved health practitioners to approve the use of restrictive practices, it is unclear whether these health practitioners will need to be independent of the aged care facility and provider. As a result, aged care providers will be able to use their in-house health practitioners to approve the use of restrictive practices.
There is a risk that in residential care facilities they could have their own RNs approving restraint to make life easier for everyone at the facility.
The Royal Commission also recommended that restrictive practices should only be used after alternative evidence-based strategies have been explored, applied and documented. The Greens are concerned that the regulations qualify the need to use alternative strategies through the phase “to the extent possible”. This could leave the door open for aged care providers to somewhat explore alternative strategies.
The regulations also permit the use of restrictive practices in emergencies, noting the requirements do not apply if the use of restrictive practices is necessary in an emergency.
As noted by the Law Council of Australia:
The phrase ‘necessary in an emergency’ is broad and subjective – opinions may differ as to whether an action or intervention is necessary or the situation in question is ‘an emergency’.
COTA also expressed concerns about the emergency provisions:
There is no maximum time that an “emergency” may continue before these principles apply again, leaving open the possibility of an emergency continuing for some time… COTA Australia urges the Committee to be satisfied that the ‘excuse’ of an emergency will not be allowed to become a loophole through which ongoing restrictions could occur over a prolonged period. We would submit that no more than 7 days would be the absolute maximum period that ‘emergency’ rules should apply, and we would prefer a shorter period.
The Greens understand that aged care providers will be responsible for determining when an emergency has passed. We also understand that using the emergency provisions on the same person more than once will constitute a red flag for the Aged Care Quality and Safety Commission. We will be seeking clarification from the Minister about the emergency provisions during the debate on this bill.
Stakeholders also raised concerns that current funding arrangements do not enable a preventive approach.
These principles have not yet, however, been translated into adequate funding or staffing of aged care services. There is currently very limited capacity to undertake the workforce expansion and development that is essential to underpin understanding of an individual’s full range of needs, and effective de-escalation of behaviour.
The Health Services Union also noted the Bill will not achieve its intentions without addressing structural issues, such as staff training:
The Bill provides no requirement for staff to be adequately trained in the use of restrictive practices, nor does it detail how approved providers will ensure staff receive adequate training. Additionally, the Bill makes no mention or connection to the number of staff or skills mix of staff. Adequate training and staffing are directly linked to the delivery of high-quality care and therefore can minimise use of restrictive practices.
The Greens share these concerns and recognise the difficulties in implementing the new regulations without addressing structural workforce issues. We understand that a senior practitioner sitting under the Aged Care Quality and Safety Commission will be providing training, advice and education to the sector on the use of restrictive practices. We will be seeking clarification from the Minister about this process during the debate on the Bill.
The Greens will be closely monitoring the implementation of the new regulations to ensure that we are moving towards the phasing out of restrictive practices in aged care. Following the conclusion of the Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability, we expect the Government will re-visit and update the regulations in light of any findings about restrictive practices. We also expect the Government will review the operation of the new regulations when drafting the new Aged Care Act.
Home care assurance reviews
This Bill allows the Secretary to conduct home care assurance reviews to inform continuous improvement of home care. The Greens understand that the Government plans to undertake 500 home care assurance reviews in the first 12 months with a focus on unjustified administration charges and overheads. Given there are around 928 home care providers operating in Australia, not all providers will undergo assurance reviews. We welcome the fact that the results of the reviews will be published on the Department’s website.
The Health Services Union noted concerns that the bill does not go far enough to increase home care provider transparency and accountability. The Bill does not specify how often the Secretary is required to carry out assurance reviews and the publication of reports is at the Secretary’s discretion.
COTA also noted concerns that Section 86 of the Aged Care Act may result in restrictions on the disclosure of information in the assurance reviews:
We suggest the Committee seeks assurances that the content of ‘assurance review’ reports will not be hindered by Section 86 and that the Parliament should not feel it necessary to provide the Secretary with specific powers to ensure that the maximum appropriate amount of information from assurance reports is made public.
The Greens share these concerns and will be seeking assurances that current provisions in the Aged Care Act will not be used to block the publication and release of information relating to home care assurance reviews.
While we welcome these attempts to improve transparency of home care fees, we call on the Government to introduce more serious changes to improve transparency and accountability across the entire aged care sector.
Aged Care Financing Authority
This Bill abolishes the Aged Care Financing Authority (ACFA). The Greens understand a new group reporting to the new National Aged Care Advisory Council will replace ACFA. We note the important role that ACFA played in producing independent reports on the financial performance of the sector.
We call on the Government to ensure there will be no gap between the dismantling of ACFA and the introduction of the new group that will provide advice on financing issues in aged care. We also expect that the Government will continue to fund and publish independent annual reports on the financial performance of the aged care sector.