Have Aged Care Minister Anika Wells and her advisers fallen victim to regulatory capture?
Croakey columnist Charles Maskell-Knight raises this question in the wake of a recent Government decision on clinical care in aged care, together with other policy disappointments.
Charles Maskell-Knight writes:
Every now and then while compiling The Zap column I come across a Government decision so bad that I spend the next day shaking my head.
So it was late last week, when I came across this notice from the Department of Health and Aged Care on the care time requirements for residential aged care providers:
“From 1 October 2024, the care minutes responsibility will increase to a sector-wide average of 215 care minutes per resident per day, including 44 minutes of direct RN [Registered Nurse] care.
Also from this time, you will have the flexibility to meet up to 10% of your service-level RN targets with care time provided by ENs [Enrolled Nurses]. For example, for a service with an RN target of 44 minutes, 4.4 EN minutes may be counted.
This follows substantial stakeholder feedback, including from:
- providers
- workers (particularly ENs)
- worker representatives
- older people
- state governments
- the TAFE sector.
This adjustment recognises the important role of ENs in aged care, and will improve recruitment and retention of these skilled workers. It will also help you deliver your care requirements when facing workforce shortages.
This change does not impact the responsibilities of nurses in your service.
The care outcomes, which an EN contributes to, will continue under the delegation and supervision of an RN and is supported by the 24/7 RN responsibility.
The Nursing and Midwifery Board of Australia regulates the nursing profession in Australia. Read more about the scope of practice for nurses.
You will still be funded to meet your care minutes from 1 October 2024 as though the full 44 minute target is met by RNs, ensuring you have the option to meet your full nursing target with RNs.”
Why this matters
To be clear, the requirement for specified RN care time was recommended by the Aged Care Royal Commission on the basis that the clinical care requirements of an increasingly frail and unwell residential care population required the level of clinical input that could only be provided by a RN.
Of course ENs who have completed an 18 month or two year diploma course have a higher demonstrated level of knowledge and competence than a personal care worker, who may have completed a Certificate 3 or 4 course.
However, the Royal Commission took the view that the clinical needs of aged care residents needed a certain level of clinical input that was only available from RNs who had completed a three year degree level course.
The Government’s reasons for its decision are tenuous. It does not argue that ENs will provide the same level of care as RNs, because it cannot – there is no evidence to support such a claim.
Instead, it suggests that there has been “substantial stakeholder feedback”.
Certainly providers have been lobbying for the change: indeed, one has posted on LinkedIn thanking the Government for “taking up his suggestion”, but submitting that ENs should be permitted to substitute for 25 percent of RN care time.
I’m sure ENs will welcome the change, as a way of protecting their jobs as providers seek to replace them with cheaper personal care workers.
But are older people really lobbying to have more of their care provided by lower-skilled workers? I doubt it.
If the Government wants to “recognise… the important role of ENs in aged care, and… improve recruitment and retention of these skilled workers”, it could expand the standards to require minimum care time from ENs, rather erode the level of RN time.
It gets worse
Now it would be bad enough for the Government to regulate to allow providers to reduce the amount of clinical care time aged care residents receive, in the face of a clear recommendation from a Royal Commission as to the amount of clinical care time that should be provided.
But it gets worse – providers are allowed to profit from the change. They will still be paid as if they were providing 44 minutes of RN time, even though 10 percent of the time will be provided by lower-paid ENs.
A constant theme of submissions to the Royal Commission was the lack of accountability for aged care funding – providers could take Government payments and individual contributions, spend as little on care and services as they could get away with, and trouser the rest.
Under this policy change the Government is openly complicit in such activity. It will pay for 44 minutes of RN time, and allow providers to deliver only 39 minutes and 36 seconds.
When Labor took office in May 2022, many aged care advocates expected a Government focused on older people’s rights to quality care, rather than providers’ rights to make profits.
The Government deserves credit for addressing the appallingly low level of wages across the sector, for introducing a new funding model, and for mandating minimum staffing levels.
But, as Professor Kathy Eagar wrote a few months ago, further “progress… has either been watered down, delayed, largely cosmetic or abandoned”.
The Government’s proposed new Aged Care Act doesn’t even pay lip service to a high-quality aged care system; the aged care star ratings system is a cruel joke; and more regular financial reporting has not overcome the GIGO problem (Garbage in, Garbage out).
All of these failings work to the benefit of providers – as does the most recent change.
It is hard to avoid the conclusion that Aged Care Minister Anika Wells and her advisers have succumbed to regulatory capture.
• 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. He is a member of Croakey Health Media. Follow on X/Twitter at @CharlesAndrewMK.
See Croakey’s extensive archive of articles on aged care
