In its final report, the Aged Care Royal Commission made a damning assessment of the regulatory system responsible for overseeing the home and residential aged care sectors.
The report set out a number of clear recommendations for improving regulation of these sectors, most of which were accepted by the government.
Recently, the Department of Health took the first step towards the implementation of the recommendations by releasing a document outlining the concepts and principles which will underpin the proposed new regulatory framework.
However, former senior public servant Charles Maskell-Knight has some serious concerns about this document, including its lack of recognition of the Royal Commission’s recommendations and its use of “poorly-written buzz-word mumbo-jumbo”.
Charles Maskell-Knight writes:
Consideration of the regulatory system for aged care was a constant theme throughout the deliberations of the Aged Care Royal Commission.
While the five-day Brisbane hearing in August 2019 had a primary focus on the aged care regulatory system, the role, nature and extent of regulation in assuring quality and safety was discussed in many other hearings.
Overseas experts, including Dr Lisa Trigg from the UK and Professor Ron Paterson from NZ, gave evidence. So did Professors John and Valerie Braithwaite from the ANU, who have an international reputation in relation to regulation.
In its final report the Commission concluded that:
The Aged Care Quality and Safety Commission and its predecessors have not demonstrated strong and effective regulation. The regulatory framework is overly concerned with processes and is not focused enough on outcomes. The system is insufficiently responsive to the experiences of older people. The oversight of home care is underdeveloped. There is a poor track record—in both home care and residential care— on enforcement, and a reactive approach to monitoring and compliance. In the words of Professor Paterson ‘the regulation of aged care in Australia has paid lip-service to the welfare of care recipients. The system fails to ensure the provision of safe, high quality care and pays insufficient attention to the quality of life of aged care users.
The regulatory arrangements lack the transparency, accountability and responsiveness that would be expected of a contemporary regulatory regime. Overall, the system has not provided the assurance of high quality and safe care that older people and the community would reasonably expect.”
In its final report the Royal Commission made a series of recommendations (nos. 92 to 105) on quality regulation during a 60-page discussion of the issues. These recommendations included improvements to the approval and accreditation of providers, greater use of consumer experience reports, graded assessments and performance reports, enhanced monitoring and inspection powers, improved complaints management, a serious incident reporting scheme, and a wider range of enforcement powers.
The Government in its response to the Royal Commission indicated that it accepted all but two of these recommendations. (Having said that, it is important to note that many acceptances were heavily qualified. For example, the Royal Commission recommended that the quality regulator should undergo a capability review during 2021, with any changes implemented from 1 January 2022. The Government accepted the recommendation, but will only carry out the review in 2023.)
Against this background the Department of Health has now foreshadowed:
…a comprehensive consultation process [to] commence in 2022 [which] will inform the detailed design of a more contemporary and fit for purpose regulatory framework and will consider the operational arrangements, transition options and an implementation plan.”
A first step
As the first step in this process it has released a paper setting out concepts and a set of principles which will “underpin” the development of a new aged care regulatory framework.
It is a strange document.
To begin with, it does not acknowledge the Royal Commission’s recommendations or the Government’s policy decision to accept most of the recommendations.
It states that: “The genesis of this regulatory design work was the commencement of Home Care reform, however our approach to regulatory design is to apply it more broadly to all parts of regulating aged care services, including residential aged care.”
Given the Government has already made a series of decisions about the future content of the aged care regulatory system, it is very odd that the document gives the impression that the design of the regulatory system is starting with a blank piece of paper.
No response sought
The next odd thing it that the Department is not seeking any response. It only “seeks to provide early communication with stakeholders on concepts and ideas for a potential new model for regulating aged care”. In other words, it is simply didactic – which explains why parts read like an excerpt from a chapter of a year 7 text on government and political systems.
Having said that, it is strange that the document is entirely unsourced. The voice is the Department, speaking ex cathedra. The core elements of regulation are laid down, with no acknowledgement of the vast body of literature from which they are drawn – a literature which includes diverse views on how to describe the elements and their relative importance.
The fact that the Department is not seeking any comments on the eight principles of regulatory design it enunciates is also strange. These principles are not universal, but are very specific to the Australian aged care system and have been invented by the Department. There is no real argument supporting them, and the discussion in the paper only covers several of the principles.
Some of the principles are trite, but unarguable. For example, “the foundations of the future regulatory framework is underpinned by a human right based and person-centred approach”. So far, so good – even if the idea of a “person-centred approach” is illustrated with an inane graphic.
Some are poorly-written buzz-word mumbo-jumbo. Principle 8 states that the regulatory framework “should facilitate stewardship of quality and safety outcomes for consumers through the entire system, through… policy, culture, behaviour, and regulation”. So, the regulatory framework should achieve an objective through regulation? Who would have thought of that?
Others are pernicious. Principle 4 states that the regulatory framework “should enable an efficient and effective market for the provision of quality services to senior Australians (while maintaining protections) and be financially sustainable into the future”. In other words, the regulatory framework should provide that the quality of the services is limited by some notion of affordability.
There is an important trade-off between quality and cost. The Royal Commission demonstrated that over the last 25 years governments have consistently preferred cost-containment to maintaining quality, and that this has been a major factor contributing to the appalling neglect suffered by so many people receiving aged care. It recommended that both quality standards and the costs of delivering services should be set by independent bodies.
The Government has accepted the first recommendation, and in relation to the second it has accepted that there should be independent public advice to the Government on the costs of delivering services. It will still be open to the Government to depart from that advice in determining payment levels – but it will be an explicit and open decision subject to political scrutiny.
More consultation needed
This is appropriate. It is not appropriate for the regulatory framework to somehow internalise the trade-off, by for example sliding away from rigorous enforcement of standards if that would impose additional costs on the sector. And it is not appropriate for the Department to declare a principle that would allow that without public comment.
If the Department is committed to consultation – and its first instinct is to consult the aged care sector on virtually every proposal – it should begin by consulting on the principles it has enunciated.
It should not be able to release them in a “concepts paper”, not invite comment, and then base the rest of the design process on untested principles.
Charles Maskell-Knight PSM was a senior public servant in the Commonwealth Department of Health for over 25 years before retiring last year. He worked as a senior adviser to the Aged Care Royal Commission in 2019-20.
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