Aged Care Minister Anika Wells is due to present at the National Press Club tomorrow on her ‘ambition for aged care’. Below are some questions that journalists and others might consider asking the Minister, helpfully compiled by policy analyst Charles Maskell-Knight.
Charles Maskell-Knight writes:
The Royal Commission into the Quality and Safety of Aged Care found that many people in the aged care system received neglect rather than care. It concluded that systematic underfunding had led to a workforce that was underpaid, underskilled, and not numerous enough to provide quality care.
To address this fundamental problem, it recommended that the Government should:
- mandate minimum minutes of care time, initially at 200 minutes a day, increasing to 215 minutes, with sub-targets for registered nurse (RN) time
- require every nursing home to have a RN on duty 16 hours a day, increasing to 24 hours a day
- support an increase in the wages for workers in the sector.
The Morrison Government’s response was characteristically equivocal. It supported mandated care time of 200 minutes (but introduced later than the Royal Commission had recommended), but was silent on the increase to 215 minutes.
It supported the 16 hours a day for RNs, but was silent on the 24 hours a day. And it “noted” the recommendation that the Government should collaborate with unions and employers on a work value case to increase wages.
In the lead-up to the May 2022 election, the ALP committed to implementing these Royal Commission recommendations if elected; in the twelve months since the election, the Albanese Government has delivered. It deserves credit for implementing a very expensive policy at a time when it is under fiscal pressure.
Important though these staffing and wage recommendations were, they were only part of the wide-ranging reforms recommended by the Royal Commission. Both the previous Government and the current one have been slow to move on some important issues, and even when they have implemented changes, the implementation has sometimes been problematic.
Minister Anika Wells is due to appear at the National Press Club on Wednesday 7 June, where she will undoubtedly spruik the Government’s success so far.
According to her tweet on the anniversary of the election, one of these achievements was “visiting 35 homes to talk with residents and workers”. If only successful reform was really as easy as having a few morning teas.
There are many questions that could be put to Minister Wells to elicit a more rounded view of the Government’s performance so far.
Below I set out what appear to me to be half a dozen of the most important.
Will the Minister commit to publishing and updating a list of which Royal Commission recommendations have been implemented, which are still in train, and which have been dropped?
According to the Minister’s tweet, the Government has so far “addressed 69 recommendations of the Royal Commission”.
However, as far as I can see, there is no document available which sets out which these 69 are. Nor is there any clarity about what progress has been made on the remaining 79 recommendations from the Royal Commission, nor indeed which of these 79 this Government had adopted.
The Royal Commission recommended that the Inspector-General of Aged Care should report every six months on implementation of the recommendations.
However, the legislation establishing the Inspector-General does not include this as a function, and to date the interim Inspector-General has not released such a report.
Supplementary question: if the Government is committed to transparency, why won’t it report in detail on progress in implementing the Royal Commission recommendations?
Given almost 40 percent of homes inspected by the Aged Care Quality and Safety Commission in 2021-22 were found to be breaching the personal and clinical care standard, and 30 percent were found to be breaching the human resources quality standard, how can we believe a star rating system that suggests 90 percent of homes are delivering an acceptable level of care?
The relevant aged care quality standards for personal and clinical care are that “the organisation delivers safe and effective personal care, clinical care, or both personal care and clinical care, in accordance with the consumer’s needs, goals and preferences to optimise health and well-being”. Of the homes audited in 2021-22, 38.5 percent did not meet this standard.
The human resources standard requires that “the organisation has a workforce that is sufficient, and is skilled and qualified to provide safe, respectful and quality care and services”. Of the homes audited in 2021-22, 29.9 percent did not meet this standard.
Yet the star ratings for aged care released in late 2022 reported that 90 percent of homes achieved three stars or better, delivering an acceptable level of care.
How is this possible?
The answer is the star ratings system is flawed, as I have written earlier.
A home can receive three stars under the staffing component while delivering under 90 per cent of the targeted care time. It will receive four stars for compliance as long as it hasn’t been caught failing in the last twelve months. It will even receive three stars for compliance if the Aged Care Quality and Safety Commission (ACQSC) has issued it with a direction to “to revise a plan for continuous improvement” – a direction which is only issued when there are “compliance issues”.
Add to that the fact that “raw” ratings of 2.5 stars are rounded up to three stars, and it is hardly surprising that only 10 percent of homes are reported as failing to deliver an acceptable level of care.
Supplementary questions: why does a home delivering less than 90 percent of targeted care time receive three stars for staffing? Why does a home found by the regulator to have compliance issues receive three stars for compliance?
Why has it taken two years (and counting) to rewrite the Aged Care Act?
The first recommendation of the Royal Commission was that a new Aged Care Act should be enacted by 1 July 2023. The Commission set out the objects of the new Act, together with an explicit statement of the rights of people seeking or receiving care, and a statement of principles to govern decisions under the Act.
As soon as it received the Royal Commission report on 1 March 2021, the Morrison Government announced that it accepted these recommendations, and that the new Act would commence from 1 July 2023 “subject to parliamentary processes”.
On 8 February 2022 – almost a year later – the Department of Health released for comment a “Concept paper” on a new regulatory model for aged care.
Following the May 2022 election, Minister Wells met OPAN’s National Older Persons Reference Group, and assured them that work on the new Act was under way and that the Government was intending to implement the new Act from 1 July 2023. Since then there have been two further consultation papers on the regulatory model (in September 2022 and April this year).
Drafting a new Act will be a difficult and complicated process. But it shouldn’t take this long.
In a little over twelve months in 2006-07 the Government developed and secured passage of the Private Health Insurance Act 2007, replacing a mishmash of previous legislation scattered across a number of different Acts. As part of the process, the Government released a discussion paper on the approach to the new Act, followed by an exposure draft.
Even allowing for the delay caused by a change of government, the process around the new Aged Care Act is unduly protracted.
Supplementary questions: will an exposure draft of the bill for the new Act be released? And if so, when? And what is the Government’s current thinking on the timing for the introduction of the new Act?
Why hasn’t the Government released the capability review of the ACQSC?
The Royal Commission recommended that the Government should commission an independent review of the capabilities of the ACQSC by 1 May 2021, and implement the recommendations of the review by 1 January 2022 to ensure that the Commission had the necessary resources “to engage and develop a skilled and dedicated compliance and enforcement workforce, with the regulatory and investigatory skills, clinical knowledge, assessment skills, and enforcement skills required for it to meet its regulatory mandate”.
The Morrison Government decided to carry out the review in 2023 (perhaps because any additional resources would have to be found in a post-election budget?).
To its credit, the Albanese Government moved more quickly, with Minister Wells announcing on 28 July 2022 that the review would proceed, and report in the first half of 2023. But after that promising start it took a further two-and-a-half months before David Tune AO was announced as the reviewer on 14 October 2022.
Minister Wells announced on 20 April that Mr Tune had delivered his report, including “32 recommendations that present opportunities to reform and strengthen the aged care regulator into the future and continue to build on its capabilities”.
She said the Government was carefully considering the report and working its way through the recommendations, and that “the full report will be released with the Government’s response in due course”.
Supplementary questions: why is the Government being so coy about the recommendations? Wouldn’t there be advantages in releasing the report, so that reactions to it could inform the Government’s response?
No Press Club appearance at the moment can go by without a question about consultants – but this one is not about PwC. Is the Minister concerned that KPMG is being paid by the ACQSC to undertake audits of aged care homes, while simultaneously offering to assist aged care providers with consultants who can offer “integrate innovative approaches with a deep sector expertise of both government aged care policy and the issues faced by service providers”?
The Guardian reported this story on 4 May. One would hope that any consultants who had been involved in advising a provider on “innovative approaches” would recuse themselves from auditing the same provider.
However, it would be far better for firms such as KPMG to decide whether to be poachers or gamekeepers, and accept money from either the government or the sector, but not both.
Supplementary questions: if the Minister is concerned about this situation, what will she do about it? And if she isn’t concerned, why not?
If the Government really is committed to improved transparency, why hasn’t it removed the blanket exemption from the Freedom of Information Act of information relating to the affairs of approved providers of aged care, as recommended by the Royal Commission?
Under the current FOI regime, any document containing information about the affairs of an approved aged care provider is unconditionally exempt from disclosure under the FOI Act.
The Royal Commission recommended that the unconditional exemption be removed.
Documents containing information about the affairs of an approved provider would then be conditionally exempt from release under section 47G of the FOI Act if they contained information on the provider’s business, commercial or financial affairs which if disclosed might unreasonably affect it in respect of its lawful business.
The Act requires the FOI decision maker to grant access to a conditionally exempt document unless access would, on balance, be contrary to the public interest. Factors favouring access to a document include whether access would “inform debate on a matter of public importance” or “promote effective oversight of public expenditure”.
Given approved aged care providers are delivering services to vulnerable Australians in a highly regulated environment, with about three-quarters of their costs subsidised by government payments, it is highly likely that access to information about their affairs will be in the public interest.
Supplementary question: why should documents containing information about aged care providers be unconditionally exempt from FOI, when documents containing information about pharmaceutical companies registering products with the TGA are only conditionally exempt?
Many other questions about aged care policy could be put to the Minister.
Why has the Government reneged on the previous Government’ decision to fund embedded pharmacists in nursing homes?
How will the Government achieve savings of $2.2 billion over three years from 2024-25 by temporarily reducing the residential aged care provision ratio?
Why has it persisted in announcing step increments in home care places, rather than just funding however many people are assessed as needing care?
In an ideal world, all these issues would be raised during question time or Senate estimates.
Unfortunately, the Opposition seems too intent on undermining genuine improvements in policy such as 24/7 nursing cover, while the independents and Greens do not get the time to ask as many questions as they would like.
National Press Club addresses have by default become an important accountability mechanism. Over to the media to push the Minister on these important questions.
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 archive of articles on aged care