Informed, engaged communities for health

Filter by Categories
Aged care
Budgets
Federal Budget 2024-25
Federal Budget 2023-2024
Federal Budget October 2022
Federal Budget 2022-23
Federal Budget 2021-22
Climate and health
Climate emergency
Healthcare sustainability
Heatwaves
National Health and Climate Strategy
#HealthyCOP28
#HealthyCOP27
#HealthyCOP26
#CoveringClimateNow
COVID collection
COVID-19
Long COVID
COVIDwrap
COVID SNAPS
#JusticeCOVID
Caring for the Frontline
COVIDglobalMHseries
Croakey Conference News Service
Croakey Professional Services
NHLF series
#KidneyCareTogether
ACSQHC series
ACSQHC series 2022
ACSQHC series 2021
ACSQHC series 2020
ACSQHC series 2019
CATSINaM 25 Years
Croakey projects
@WePublicHealth 2024
Summer reading 2023-2024
The Zap
#CroakeyLIVE #DigitalNationBuilding
#CroakeyLIVE #VoiceForHealth
#PHAAThinkTank2023
The Health Wrap
ICYMI
@WePublicHealth
@WePublicHealth2023
#CroakeyVOICES
#SpeakingOurMinds
Croakey longreads
#CroakeyREAD
CroakeyEXPLORE
CroakeyGO
#CroakeyGO #NavigatingHealth
#GamblingHarms
#HeatwaveHealth
Mapping CroakeyGo
Determinants of health
Environmental determinants of health
Social determinants of health
Education
Discrimination
Housing
Internet access
Justice and policing
Justice Reinvestment
Newstart/JobSeeker
Poverty
Racism
Social policy
Commercial determinants of health
Alcohol
Arms industry
Digital platforms
Food and beverages
Fossil fuels
Gambling
Pharmaceutical industry
Plain packaging
Sugar tax
Tobacco
Vaping
Disasters and extreme weather events
Disasters
Extreme weather events
Bushfires
Bushfire-emergency 2019-2020
Floods 2023
Floods 2022
Floods 2021
Floods 2011
Donor-funded journalism
Donor-funded journalism – 2024
Donor-funded journalism – 2023
Donor-funded journalism – 2022
Donor-funded journalism – 2021
Donor-funded journalism – 2020
Elections
lutruwita/Tasmania 2024 election
#NSWvotesHealth2023
Victorian election 2022
Federal Election 2022
The Election Wrap 2022
#QldVotesHealth
SA election 2022
WA election 2021
Tasmanian election 2021
First Nations
Indigenous health
Community controlled sector
Cultural determinants of health
Cultural safety
Indigenous education
Social and emotional wellbeing
Uluru Statement
The Voice
Lowitja Institute
NT Intervention
WA community closures
Acknowledgement
#CTG10
#NTRC
#RCIADIC30Years
General health matters
Abortion
Cancer
Cardiovascular disease
Child health
Chronic conditions
Consumer health matters
Death and dying
Diabetes
Disabilities
Euthanasia
Fetal Alcohol Spectrum Disorders (FASD)
Genetics
HIV/AIDS
HRT
Infectious diseases
Influenza
LGBTQIA+
Medical marijuana
Men's health
Mental health
Mpox
Non communicable diseases
Oral health
Organ transplants
Pain
Pregnancy and childbirth
Sexual health
Suicide
Swine flu
Trauma
Women's health
Youth health
Global health matters
Asylum seeker and refugee health
Conflict and war
Global health
WHO
Ebola
NHS
#WorldInTurmoil
Health policy and systems
Co-design
Health financing and costs
Health reform
Health regulation
Medicare 40 Years
MyMedicare
National Health Performance Authority
Pharmaceutical Benefits Scheme
Private health insurance
Royal Commissions
TGA
Workforce matters
Strengthening Medicare Taskforce 2022
National Commission of Audit 2014
Healthcare
Adverse events
Allied healthcare
Australian Medical Association
Choosing Wisely
cohealth
Complementary medicines
Conflicts of interest
Co-payments
Digital technology
E-health
Emergency departments and care
Equally Well
General practice
Health Care Homes
Health ethics
Hospitals
International medical graduates
Medicare Locals
MyHospitals website
Naturopathy
NDIS
Nursing and midwifery
Out of pocket costs
Palliative care
Paramedics
Pathology
Pharmacy
Primary healthcare
Primary Health Networks
Rural and remote health
Safety and quality of healthcare and aged care
Screening
Social prescribing
Surgery
Telehealth
Tests
Media and health
Media-related issues
Health & medical marketing
Misinformation and disinformation
Public interest journalism
Social media and healthcare
The Conversation
Media Doctor Australia
News about Croakey
Public health and population health
Air pollution
Artificial intelligence
Australian Centre for Disease Control
Government 2.0
Gun control
Health communications
Health impact assessment
Health in All Policies
Health inequalities
Health literacy
Human rights
Illicit drugs
Injuries
Legal issues
Marriage equality
Nanny state
National Preventive Health Agency
Obesity
Occupational health
Physical activity
Prevention
Public health
Road safety
Sport
Transport
Vaccination
VicHealth
Violence
Web 2.0
Weight loss products
#PreventiveHealthStrategy
#UnmetNeedsinPublicHealth
Research matters
Cochrane Collaboration
Evidence-based issues
Health and medical education
Health and medical research
NHMRC
#MRFFtransparency
The Croakey Archives
#cripcroakey
#HealthEquity16
#HealthMatters
#IHMayDay (all years)
#IHMayDay 2014
#IHMayDay15
#IHMayday16
#IHMayDay17
#IHMayDay18
#LoveRural 2014
Croakey Conference News Service 2013 – 2023
2023 Conferences
#GreenHealthForum23
#hpsymposium2023
#NMS23
#HEAL2023
#ASMIRT2023
#NSPC23
Our Democracy Forum
#AskMSF
#Lowitja2023
2022 Conferences
#16nrhc
#GreenHealthForum22
#Heal2022
#ICEM22
#NAISA22
#NNF2022
#RANZCP2022
#RethinkAddiction
#RTP22
GiantSteps22
Equally Well 2022 Symposium
Choosing Wisely National Meeting 2022
2021 conferences
#21OPCC
#BackToTheFire
#FoodGovernance2021
#GiantSteps21
#GreenHealthForum21
#HealthClimateSolutions21
#HearMe21
#IndigenousClimateJustice21
#NNF2021
#RANZCP2021
#ShiftingGearsSummit
#ValueBasedCare
#WCepi2021
#YHFSummit
2020 conferences
#2020ResearchExcellence
#Govern4Health
#HealthReImagined
#SAHeapsUnfair
2019 Conferences
#ACEM19
#CPHCE19
#EquallyWellAust
#GiantSteps19
#HealthAdvocacyWIM
#KTthatWorks
#LowitjaConf2019
#MHAgeing
#NNF2019
#OKtoAsk2019
#RANZCOG19
#RANZCP2019
#ruralhealthconf
#VMIAC2019
#WHOcollabAHPRA
2018 conferences
#6rrhss
#ACEM18
#AHPA2018
#ATSISPC18
#CPHCE
#MHED18
#NDISMentalHealth
#Nurseforce
#OKToAsk2018
#RANZCOG18
#ResearchIntoPolicy
#VHAawards
#VMIACAwards18
#WISPC18
2017 conferences
#17APCC
#ACEM17
#AIDAconf2017
#BTH20
#CATSINaM17
#ClimateHealthStrategy
#IAHAConf17
#IDS17
#LBQWHC17
#LivingOurWay
#OKtoAskAu
#OTCC2017
#ResearchTranslation17
#TheMHS2017
#VMIACConf17
#WCPH2017
Australian Palliative Care Conference
2016 conferences
#AHHAsim16
#AHMRC16
#ANROWS2016
#ATSISPEP
#AusCanIndigenousWellness
#cphce2016
#CPHCEforum16
#CRANAplus2016
#IAMRA2016
#LowitjaConf2016
#PreventObesity16
#TowardsRecovery
#VMIAC16
#WearablesCEH
#WICC2016
2015 conferences
#CPHCEforum
#CRANAplus15
#HSR15
#NRHC15
#OTCC15
Population Health Congress 2015
2014 conferences
#IPCHIV14
AIDA Conference 2014
Congress Lowitja 2014
CRANAplus conference 2014
Cultural Solutions - Healing Foundation forum 2014
Lowitja Institute Continuous Quality Improvement conference 2014
National Suicide Prevention Conference 2014
Racism and children/youth health symposium 2014
Rural & Remote Health Scientific Symposium 2014
2013 conferences
Australian Centre for Health Services Innovation Forum 2013
Australian Health Promotion Association Conference 2013
Closing the Credibility Gap 2013
CRANAplus Conference 2013
FASD Conference 2013
Health Workforce Australia 2013
International Health Literacy Network Conference 2013
NACCHO Summit 2013
National Rural Health Conference 2013
Oceania EcoHealth Symposium 2013
PHAA conference 2013
Croakey Professional Services archive
#CommunityControl
#CommunityControl Twitter Festival
#COVIDthinktank21
Lowitja Indigenous knowledge translation series
Croakey projects archive
#PHAAThinkTank 2022
Summer reading 2022-2023
#CommunityMatters
#CroakeyFundingDrive 2022
#CroakeyLIVE #Budget2021Health
#CroakeyLIVE #USvotesHealth
#CroakeyLIVE Federal election 2022
#CroakeyYOUTH
#HousingJusticeAus
#IndigenousHealthSummit
#IndigenousNCDs
#JustClimate
#JustJustice
#LookingLocal
#OutOfPocket
#OutOfTheBox
#RuralHealthJustice
#TalkingTeeth
@WePublicHealth2022
@WePublicHealth2021
@WePublicHealth2020
AroundTheTraps
Croakey register of influence
Croakey Register of Influencers in Public Health
Croakey Register of Unreleased Documents
Gavin Mooney
Inside Story
Journal Watch
Naked Doctor
Poems of Public Health
Summer reading 2021-2022
Summer reading 2020-2021
Summer Reading 2019-2020
Summer Reading 2017-2018
Summer Reading 2016-2017
The Koori Woman
TOO MUCH of a Good Thing
Wonky Health
CroakeyGO archive 2017 – 2018
CroakeyGo 2018
#CroakeyGO #QuantumWords 2018
#CroakeyGO #VicVotes 2018
#CroakeyGO Albury 2018
#CroakeyGO Callan Park 2018
#CroakeyGO Carnarvon 2018
#CroakeyGO Marrickville 2018
#CroakeyGO Palm Island 2018
CroakeyGo 2017
#CroakeyGO Adelaide 2017
#CroakeyGO Melbourne 2017
#CroakeyGO Newcastle 2017
#CroakeyGO Sydney 2017
Elections and Budgets 2013 – 2021
Budget2020Health
Federal Budget 2020-21
Federal Budget 2019-20
#AusVotesHealth Twitter Festival 2019
#Health4NSW
Federal Election 2019
NSW Election 2019
Federal Budget 2018-19
Federal Budget 2017/18
NZ Election 2017
Federal Budget 2016-17
Federal Election 2016
#HealthElection16
NT Election 2016
Federal Budget 2015-16
Qld Election 2015
NSW Election 2015
Federal Budget 2014-15
Victorian Election 2014
Federal Budget 2013-14
Federal Election 2013
Federal Budget 2012-2013
Federal Budget 2011
Federal Budget 2010
Federal Election 2010
Federal Budget 2009-2010
Support non-profit public interest journalism
Filter by Categories
Aged care
Budgets
Federal Budget 2024-25
Federal Budget 2023-2024
Federal Budget October 2022
Federal Budget 2022-23
Federal Budget 2021-22
Climate and health
Climate emergency
Healthcare sustainability
Heatwaves
National Health and Climate Strategy
#HealthyCOP28
#HealthyCOP27
#HealthyCOP26
#CoveringClimateNow
COVID collection
COVID-19
Long COVID
COVIDwrap
COVID SNAPS
#JusticeCOVID
Caring for the Frontline
COVIDglobalMHseries
Croakey Conference News Service
Croakey Professional Services
NHLF series
#KidneyCareTogether
ACSQHC series
ACSQHC series 2022
ACSQHC series 2021
ACSQHC series 2020
ACSQHC series 2019
CATSINaM 25 Years
Croakey projects
@WePublicHealth 2024
Summer reading 2023-2024
The Zap
#CroakeyLIVE #DigitalNationBuilding
#CroakeyLIVE #VoiceForHealth
#PHAAThinkTank2023
The Health Wrap
ICYMI
@WePublicHealth
@WePublicHealth2023
#CroakeyVOICES
#SpeakingOurMinds
Croakey longreads
#CroakeyREAD
CroakeyEXPLORE
CroakeyGO
#CroakeyGO #NavigatingHealth
#GamblingHarms
#HeatwaveHealth
Mapping CroakeyGo
Determinants of health
Environmental determinants of health
Social determinants of health
Education
Discrimination
Housing
Internet access
Justice and policing
Justice Reinvestment
Newstart/JobSeeker
Poverty
Racism
Social policy
Commercial determinants of health
Alcohol
Arms industry
Digital platforms
Food and beverages
Fossil fuels
Gambling
Pharmaceutical industry
Plain packaging
Sugar tax
Tobacco
Vaping
Disasters and extreme weather events
Disasters
Extreme weather events
Bushfires
Bushfire-emergency 2019-2020
Floods 2023
Floods 2022
Floods 2021
Floods 2011
Donor-funded journalism
Donor-funded journalism – 2024
Donor-funded journalism – 2023
Donor-funded journalism – 2022
Donor-funded journalism – 2021
Donor-funded journalism – 2020
Elections
lutruwita/Tasmania 2024 election
#NSWvotesHealth2023
Victorian election 2022
Federal Election 2022
The Election Wrap 2022
#QldVotesHealth
SA election 2022
WA election 2021
Tasmanian election 2021
First Nations
Indigenous health
Community controlled sector
Cultural determinants of health
Cultural safety
Indigenous education
Social and emotional wellbeing
Uluru Statement
The Voice
Lowitja Institute
NT Intervention
WA community closures
Acknowledgement
#CTG10
#NTRC
#RCIADIC30Years
General health matters
Abortion
Cancer
Cardiovascular disease
Child health
Chronic conditions
Consumer health matters
Death and dying
Diabetes
Disabilities
Euthanasia
Fetal Alcohol Spectrum Disorders (FASD)
Genetics
HIV/AIDS
HRT
Infectious diseases
Influenza
LGBTQIA+
Medical marijuana
Men's health
Mental health
Mpox
Non communicable diseases
Oral health
Organ transplants
Pain
Pregnancy and childbirth
Sexual health
Suicide
Swine flu
Trauma
Women's health
Youth health
Global health matters
Asylum seeker and refugee health
Conflict and war
Global health
WHO
Ebola
NHS
#WorldInTurmoil
Health policy and systems
Co-design
Health financing and costs
Health reform
Health regulation
Medicare 40 Years
MyMedicare
National Health Performance Authority
Pharmaceutical Benefits Scheme
Private health insurance
Royal Commissions
TGA
Workforce matters
Strengthening Medicare Taskforce 2022
National Commission of Audit 2014
Healthcare
Adverse events
Allied healthcare
Australian Medical Association
Choosing Wisely
cohealth
Complementary medicines
Conflicts of interest
Co-payments
Digital technology
E-health
Emergency departments and care
Equally Well
General practice
Health Care Homes
Health ethics
Hospitals
International medical graduates
Medicare Locals
MyHospitals website
Naturopathy
NDIS
Nursing and midwifery
Out of pocket costs
Palliative care
Paramedics
Pathology
Pharmacy
Primary healthcare
Primary Health Networks
Rural and remote health
Safety and quality of healthcare and aged care
Screening
Social prescribing
Surgery
Telehealth
Tests
Media and health
Media-related issues
Health & medical marketing
Misinformation and disinformation
Public interest journalism
Social media and healthcare
The Conversation
Media Doctor Australia
News about Croakey
Public health and population health
Air pollution
Artificial intelligence
Australian Centre for Disease Control
Government 2.0
Gun control
Health communications
Health impact assessment
Health in All Policies
Health inequalities
Health literacy
Human rights
Illicit drugs
Injuries
Legal issues
Marriage equality
Nanny state
National Preventive Health Agency
Obesity
Occupational health
Physical activity
Prevention
Public health
Road safety
Sport
Transport
Vaccination
VicHealth
Violence
Web 2.0
Weight loss products
#PreventiveHealthStrategy
#UnmetNeedsinPublicHealth
Research matters
Cochrane Collaboration
Evidence-based issues
Health and medical education
Health and medical research
NHMRC
#MRFFtransparency
The Croakey Archives
#cripcroakey
#HealthEquity16
#HealthMatters
#IHMayDay (all years)
#IHMayDay 2014
#IHMayDay15
#IHMayday16
#IHMayDay17
#IHMayDay18
#LoveRural 2014
Croakey Conference News Service 2013 – 2023
2023 Conferences
#GreenHealthForum23
#hpsymposium2023
#NMS23
#HEAL2023
#ASMIRT2023
#NSPC23
Our Democracy Forum
#AskMSF
#Lowitja2023
2022 Conferences
#16nrhc
#GreenHealthForum22
#Heal2022
#ICEM22
#NAISA22
#NNF2022
#RANZCP2022
#RethinkAddiction
#RTP22
GiantSteps22
Equally Well 2022 Symposium
Choosing Wisely National Meeting 2022
2021 conferences
#21OPCC
#BackToTheFire
#FoodGovernance2021
#GiantSteps21
#GreenHealthForum21
#HealthClimateSolutions21
#HearMe21
#IndigenousClimateJustice21
#NNF2021
#RANZCP2021
#ShiftingGearsSummit
#ValueBasedCare
#WCepi2021
#YHFSummit
2020 conferences
#2020ResearchExcellence
#Govern4Health
#HealthReImagined
#SAHeapsUnfair
2019 Conferences
#ACEM19
#CPHCE19
#EquallyWellAust
#GiantSteps19
#HealthAdvocacyWIM
#KTthatWorks
#LowitjaConf2019
#MHAgeing
#NNF2019
#OKtoAsk2019
#RANZCOG19
#RANZCP2019
#ruralhealthconf
#VMIAC2019
#WHOcollabAHPRA
2018 conferences
#6rrhss
#ACEM18
#AHPA2018
#ATSISPC18
#CPHCE
#MHED18
#NDISMentalHealth
#Nurseforce
#OKToAsk2018
#RANZCOG18
#ResearchIntoPolicy
#VHAawards
#VMIACAwards18
#WISPC18
2017 conferences
#17APCC
#ACEM17
#AIDAconf2017
#BTH20
#CATSINaM17
#ClimateHealthStrategy
#IAHAConf17
#IDS17
#LBQWHC17
#LivingOurWay
#OKtoAskAu
#OTCC2017
#ResearchTranslation17
#TheMHS2017
#VMIACConf17
#WCPH2017
Australian Palliative Care Conference
2016 conferences
#AHHAsim16
#AHMRC16
#ANROWS2016
#ATSISPEP
#AusCanIndigenousWellness
#cphce2016
#CPHCEforum16
#CRANAplus2016
#IAMRA2016
#LowitjaConf2016
#PreventObesity16
#TowardsRecovery
#VMIAC16
#WearablesCEH
#WICC2016
2015 conferences
#CPHCEforum
#CRANAplus15
#HSR15
#NRHC15
#OTCC15
Population Health Congress 2015
2014 conferences
#IPCHIV14
AIDA Conference 2014
Congress Lowitja 2014
CRANAplus conference 2014
Cultural Solutions - Healing Foundation forum 2014
Lowitja Institute Continuous Quality Improvement conference 2014
National Suicide Prevention Conference 2014
Racism and children/youth health symposium 2014
Rural & Remote Health Scientific Symposium 2014
2013 conferences
Australian Centre for Health Services Innovation Forum 2013
Australian Health Promotion Association Conference 2013
Closing the Credibility Gap 2013
CRANAplus Conference 2013
FASD Conference 2013
Health Workforce Australia 2013
International Health Literacy Network Conference 2013
NACCHO Summit 2013
National Rural Health Conference 2013
Oceania EcoHealth Symposium 2013
PHAA conference 2013
Croakey Professional Services archive
#CommunityControl
#CommunityControl Twitter Festival
#COVIDthinktank21
Lowitja Indigenous knowledge translation series
Croakey projects archive
#PHAAThinkTank 2022
Summer reading 2022-2023
#CommunityMatters
#CroakeyFundingDrive 2022
#CroakeyLIVE #Budget2021Health
#CroakeyLIVE #USvotesHealth
#CroakeyLIVE Federal election 2022
#CroakeyYOUTH
#HousingJusticeAus
#IndigenousHealthSummit
#IndigenousNCDs
#JustClimate
#JustJustice
#LookingLocal
#OutOfPocket
#OutOfTheBox
#RuralHealthJustice
#TalkingTeeth
@WePublicHealth2022
@WePublicHealth2021
@WePublicHealth2020
AroundTheTraps
Croakey register of influence
Croakey Register of Influencers in Public Health
Croakey Register of Unreleased Documents
Gavin Mooney
Inside Story
Journal Watch
Naked Doctor
Poems of Public Health
Summer reading 2021-2022
Summer reading 2020-2021
Summer Reading 2019-2020
Summer Reading 2017-2018
Summer Reading 2016-2017
The Koori Woman
TOO MUCH of a Good Thing
Wonky Health
CroakeyGO archive 2017 – 2018
CroakeyGo 2018
#CroakeyGO #QuantumWords 2018
#CroakeyGO #VicVotes 2018
#CroakeyGO Albury 2018
#CroakeyGO Callan Park 2018
#CroakeyGO Carnarvon 2018
#CroakeyGO Marrickville 2018
#CroakeyGO Palm Island 2018
CroakeyGo 2017
#CroakeyGO Adelaide 2017
#CroakeyGO Melbourne 2017
#CroakeyGO Newcastle 2017
#CroakeyGO Sydney 2017
Elections and Budgets 2013 – 2021
Budget2020Health
Federal Budget 2020-21
Federal Budget 2019-20
#AusVotesHealth Twitter Festival 2019
#Health4NSW
Federal Election 2019
NSW Election 2019
Federal Budget 2018-19
Federal Budget 2017/18
NZ Election 2017
Federal Budget 2016-17
Federal Election 2016
#HealthElection16
NT Election 2016
Federal Budget 2015-16
Qld Election 2015
NSW Election 2015
Federal Budget 2014-15
Victorian Election 2014
Federal Budget 2013-14
Federal Election 2013
Federal Budget 2012-2013
Federal Budget 2011
Federal Budget 2010
Federal Election 2010
Federal Budget 2009-2010

Why isn’t the Federal Government pushing harder for high quality aged care?

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

 

Related Posts

A new Croakey column, providing a summary of health-related reports, announcements and media releases