Introduction by Croakey: Readers have until 16 February to comment on the exposure draft of a bill for a new Aged Care Act.
In his second article in an ongoing series examining the exposure draft, policy analyst Charles Maskell-Knight explains below that it does not require providers to deliver high quality care. Their only care-related duty under the proposed Act is a duty not to cause adverse effects to the health and safety of individuals.
See his first article in the series: With a new Aged Care Act in the wings, some important concerns are at stake.
Charles Maskell-Knight writes:
As I set out in the first article in this series, the first recommendation of the Royal Commission on the Quality and Safety of Aged Care was that there should be a new Aged Care Act, with one of its objects being to “ensure that older people receive high quality care in a safe and caring environment for dignified living in old age”.
The Royal Commission then defined high quality care, and recommended that the Act should include a duty to provide high quality care, a civil penalty regime for breaches of the duty (recommendation 101), and a compensation regime for people suffering loss or damage from the breach (recommendation 102).
While the exposure draft does not include the provision of high quality care as one of the objects of the new Act, it does define high quality care and impose what is best described as a duty to avoid low quality care, with an associated penalty regime and compensation pathway.
In this article I will examine how the exposure draft provisions line up with the Royal Commission recommendations.
High quality care
The Royal Commission recommended (recommendation 13) that high quality care should:
(a) be delivered with compassion and respect for the individuality and dignity of the person…
(b) be personal and designed to respond to the person’s expressed personal wishes, aspirations and preferences…
(c) be provided on the basis of a [regularly reviewed] clinical assessment of the person’s health and wellbeing [covering such things as falls risk, pressure injuries, nutrition, mental health, cognitive impairment and end-of-life care]
(d) enhance… the physical and cognitive capacities and the mental health of the person
(e) support the person to participate in recreational activity and social activities and engagement.
The exposure draft at clause 19 picks up on all of these except (c) regular clinical assessments. Apparently it is possible to provide high quality care without knowing what care needs to be provided.
The exposure draft adds several characteristics, including implementing culturally safe and appropriate care for Aboriginal and Torres Strait Islander persons, adapting care to ensure culturally appropriate care for other people from diverse backgrounds, provision of bilingual workers and interpreters on request, and worker retention and training.
Worker retention and training are important preconditions for high quality care, but they are not characteristics of care as such. While the other additions are important to particular groups, it is not clear why they are more important than clinical assessment, which would be relevant to all people receiving care.
Duty to provide care and consequences of failure
The Royal Commission recommended that there should be “a general, positive and non-delegable statutory duty on any approved provider to ensure that the personal care or nursing care they provide is of high quality and safe so far as is reasonable” having regard to the wishes of the person receiving care and reasonably foreseeable risks (recommendation 14).
It then recommended that that the quality regulator should be able to apply to a court for imposition of a civil penalty if there was a breach of the duty to provide high quality safe care and if “the act, omission or conduct giving rise to the breach also gives rise to a failure to comply with… the Aged Care Quality Standards; and the breach gives rise to harm, or a reasonably foreseeable risk of harm, to a person [receiving care]” (recommendation 101).
The Royal Commission then recommended that if a provider was found to have contravened a civil penalty provision, then either the quality regulator could apply to a court for an order that the provider or a person involve in the contravention should “pay damages for any loss and damage suffered by a person receiving aged care as a direct result of the contravention”; or a person could bring a private action for damages (recommendation 102).
The regime set out in the exposure draft is considerably less onerous for providers.
For a start, while the draft sets out a definition of high quality care, there is no duty to provide it. The only related obligation on a provider is set out in clause 99, which imposes as a condition of registration a requirement for a provider to “demonstrate the capability for, and commitment to, continuous improvement towards the delivery of high quality care”.
High quality care is an aspiration, not a requirement.
The only care-related duty on a provider is set out in clause 120. Subclause (1) provides that:
“A registered provider must ensure, so far as is reasonably practicable, that the conduct of the provider does not cause adverse effects to the health and safety of individuals to whom the provider is delivering funded aged care services while the provider is delivering those services.”
So rather than a duty to provide high quality care, the duty is to avoid poor quality care as long as it is “reasonably practicable” to do so.
Subclause 120(2) defines “reasonably practicable” as that which was “reasonably able to be done taking into account and weighing up all relevant matters including: the likelihood of the adverse effect concerned occurring; the likely degree of harm from the adverse effect; what the person concerned knows, or ought reasonably to know, about ways of preventing the adverse effect; the availability and suitability of ways to prevent the adverse effect; and the rights of individuals under the Statement of Rights [to take personal risks]”.
The technical term for this provision is a “get out of jail free card”.
Subclause (3) then creates a strict liability offence for a provider that “engages in conduct that does not comply with the duty” as long as the conduct “amounts to a serious failure” to comply. But subclause (4) then provides that conduct is only a “serious failure” if it exposes an individual to a risk of death or serious injury or illness and involves a “significant failure or is part of a systematic pattern of conduct”.
So even if a provider delivers care in such a way as to “cause adverse effects to the health and safety of individuals”, it will only commit an offence if the adverse effect amounts to a risk of death or serious illness or injury.
(Other provisions in clause 120 create offences for conduct which breaches the duty and actually results in death, serious injury or illness.)
Clause 121 mirrors clause 120, but applies to responsible people within a provider (for example, directors, executives, and managers) and requires them to exercise due diligence to ensure that the provider complies with the duty not to cause adverse effects to the health and safety of individuals.
The compensation regime is set out in clause 127, which provides that if an entity has been found guilty of an offence under clause 120, the court may order compensation to an individual who has suffered a serious illness or injury as a result. Given the likely difficulty of successfully prosecuting an offence, the possibility of a compensation payment is remote.
Why not a duty to provide high quality care?
The Government sought to justify the departure from the Royal Commission’s recommendations in a consultation paper released last August.
It said: “The duty will not, however, be a duty of high quality care as recommended by the Royal Commission. This is because criminal penalties, as committed to by the Government, are unable to be attached to a duty to deliver high quality care, which cannot be defined with sufficient legal clarity.”
The Royal Commissioners who recommended the duty to provide high quality care included Tony Pagone KC, a former state Supreme Court and Federal Court judge. The Commissioners were assisted by three (count them, three!) KCs, two highly experienced Solicitors Assisting, and a raft of other barristers and solicitors. They clearly considered that a duty to provide high quality care could be implemented, otherwise it would not have been recommended.
The August consultation paper went on to argue that: “To introduce such a duty would also mean that high quality care would become a minimum standard. We want the concept of high quality care to grow over time and be able to be differentiated from the standard delivery of quality and safe funded aged care services in line with legislative requirements.”
In recommending a duty to provide high quality aged care, the Royal Commission was giving voice to the expectations of all older Australians, and all younger Australians hoping to grow old, that older Australians deserve high quality care. They certainly deserve far better than a standard of care that simply does not actively cause them harm.
The Government apparently disagrees.
The period for comments on the exposure draft ends on 16 February.
• 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.
See Croakey’s extensive archive of articles on aged care