Introduction by Croakey: For the last quarter of a century governments have characterised the aged care sector as a market where consumers purchase services from providers. However, the market has been distorted by a massive information asymmetry.
It has been really difficult for people seeking care and their families and friends to obtain reliable and useful information on the characteristics and performance of care providers.
At the Aged Care Royal Commission’s Sydney hearings, Glenn Rees, Chair of Alzheimer’s Disease International and a former Deputy Secretary in the Department of Health, stated:
Competition has in my view only a small part to play in respect of aged care services where many are disadvantaged, may have cognitive problems and information is inadequate. For the market to have a larger role, there is a critical need for better access to information for consumers.
At the moment choice of residential aged care facility is often down to location or availability rather than an understanding of the difference in the quality of services available at different facilities. Providing information to consumers also serves another important role, it provides an opportunity to highlight good practice, and also to shine the light on facilities that are meeting the minimum criteria to stay open but are not providing high quality care.”
Professor Ron Paterson told the Brisbane hearing of the Royal Commission that:
These are publicly-funded providers and they are providers who are caring for the most vulnerable members of our community. Why would the default position be secrecy of information about the providers? That strikes me as odd.”
The Royal Commission recommended improved provision to the public of information about providers, and the Aged Care Amendment (Implementing Care Reform) Bill 2022 introduced by new aged care Minister Annika Wells included measures to implement some reforms.
However, in a submission to the Senate Community Affairs Legislation Committee inquiry into the Bill, regular Croakey contributor Charles Maskell-Knight argues that more needs to be done about the provision of information in aged care.
Charles Maskell-Knight writes:
My submission relates to Schedule 3 of the Bill, which is characterised in the Explanatory Memorandum (page 11) as “respond[ing] to Recommendation 88 of the final report of the Royal Commission”.
This is an expansive claim: in fact the amendments in Schedule 3 relate only to recommendation 88(1)(e) which deals with information provision.
Other parts of recommendation 88(1) related to the governance arrangements of approved aged care providers, and were dealt with in Schedule 5 of the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021. This Bill lapsed when the 46th Parliament was dissolved. I assume that the Government will re-introduce these amendments in some future Bill.
In this submission I wish to raise the second part of the Royal Commission’s recommendation 88, which is also concerned with transparency of information.
Current freedom of information provisions
Under the current legislative regime any information held by the government that relates to the affairs of an approved aged care provider (or an applicant for approval) is defined as “protected information” under Division 86 of the Aged Care Act 1997 and Part 7 of the Aged Care Quality and Safety Commission Act 2018.
Section 38 of the Freedom of Information Act 1982 (the FOI Act) provides that documents covered by the secrecy provisions of other Acts set out in Schedule 3 of the FOI Act are exempt from disclosure in response to a request for access under the FOI Act. Schedule 3 includes the relevant provisions of the Aged Care Act 1997 and the Aged Care Quality and Safety Commission Act 2018.
As a result any document held by the government that contains information about the affairs of an approved provider is automatically exempt from release in response to a FOI request.
The Department of Health has taken a very broad view of the meaning of the affairs of an approved provider.
For example, the Royal Commission was told that providers’ responses to the Department responding to complaints from care recipient were not passed on to complainants because they might contain “protected information”.
The Royal Commission’s recommendation
The Royal Commission devoted several pages in its final report to consideration of this issue (volume 3 pp 467-69). It noted that the FOI Act contains exemptions for trade secrets and the like (section 47), as well as conditional exemptions for documents containing information on business, commercial or financial affairs which if disclosed might unreasonably affect that entity in respect of its lawful business (section 47G).
Section 11A of the FOI Act requires the decision maker to grant access to a conditionally exempt document “unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest”.
Section 11B sets out the factors favouring access to the document in the public interest, including whether access would “inform debate on a matter of public importance” or “promote effective oversight of public expenditure”.
Approved aged care providers are delivering services to vulnerable Australians in a highly regulated environment. About three-quarters of their revenue is derived from government payments, and much of the rest is derived by charging residents fees set by the government.
Scrutiny of information held by government on their affairs is likely to inform debate about the effectiveness of the regulatory and policy framework, as well as the extent to which public expenditure is adequate or is being applied appropriately.
It is clearly in the public interest for this information to be available.
The Royal Commission concluded that:
The combined effect of sections 27, 47 and 47G of the FOI Act strikes the right balance between approved providers’ interests in non-disclosure of commercially sensitive information and the public interest in disclosure of information about the affairs of providers which receive significant funding from the Australian Government… We consider that the additional exemption under section 38 tips the balance too far in favour of unjustifiable non-disclosure.
It thus recommended (recommendation 88(2)) that:
By 1 January 2022, the Freedom of Information Act 1982 (Commonwealth) should be amended to remove from Schedule 3 to that Act references to provisions in the Aged Care Act 1997 (Commonwealth) and the Aged Care Quality and Safety Commission Act 2018 (Commonwealth), thereby ensuring that the exemption in section 38 of the Freedom of Information Act 1982 (Commonwealth) does not apply to ‘protected information’ under aged care legislation merely on the grounds that it is information that relates to the affairs of:
- an approved provider
- an applicant for a grant under Chapter 5 of the Aged Care Act 1997 (Commonwealth)
- a service provider of a Australian Government-funded aged care service, or
- an applicant for approval under section 63B of the Aged Care Quality and Safety Commission Act 2018 (Commonwealth)
The Government’s response
The Government responded in May 2021 that “the amendments recommended to the Freedom of Information Act will require consultation with the Attorney‑General’s Department”.
It is hard to take this response seriously.
Firstly, in the ten weeks between receiving the Royal Commission’s final report and releasing its response the Government was able to reach settled positions on a large number of far more significant recommendations involving increased expenditure of billions of dollars.
It beggars belief that it couldn’t reach a position on a minor amendment to the FOI Act.
Secondly, policy ownership of this issue rests with the Department of Health. The Attorney‑General’s Department has a role in maintaining the integrity and scope of the FOI regime, and would necessarily be involved in any proposal to extend exemptions.
But if a Department approached it seeking to narrow the scope of exemptions in Schedule 3 and widen the scope of the Act, the Attorney‑General’s Department should simply sign on the dotted line.
Whatever the reason for inaction in 2021, this issue is too important to be ignored any longer. The measures in Schedule 3 of the Bill will require the Secretary to release important information about the operations of approved aged care providers.
However, the extent of what is to be provided will depend on subordinate legislation, which could be eroded by a future Government and a compliant Senate.
The Parliament should take the opportunity now to amend the FOI Act to remove the blanket exemption on release of protected information.
This would require applications by journalists, academics, and other interested parties to access documents containing information about approved aged care providers held by the government to be considered on the basis of the balance between commercial sensitivity and the public interest, and not rejected out of hand.
I submit that the Committee should recommend to the Senate the amendment to the FOI Act recommended by the Royal Commission.
This could be achieved by an amendment to Schedule 3 of the Bill along the following lines:
After Item 2, insert
Freedom of Information Act 1982
3 Omit ‘Aged Care Act 1997, subsection 86-2(1) and sections 86-5, 86-6, and 86-7.’
4 Omit ‘Aged Care Quality and Safety Commission Act 2018, subsection 60(1) and section 62.’
Charles Maskell-Knight PSM was a senior public servant in the Commonwealth Department of Health for over 25 years before retiring in 2021. He worked as a senior adviser to the Aged Care Royal Commission in 2019-20.
See Croakey’s extensive archive of articles on aged care reform.
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