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Yet more concerns raised about the Federal Government’s plans for aged care legislation

Plans for new federal aged care legislation do not address longstanding concerns about a lack of transparency on the performance of aged care providers, according to policy analyst Charles Maskell-Knight.

His article below is the fourth in a series of articles examining the exposure draft of the bill for a new Aged Care Act, released by the Department of Health and Aged Care on 14 December.


Charles Maskell-Knight writes:

I understand that the late Doug Moran (nursing home operator, philanthropist and political conservative) claimed to have written the Aged Care Act put in place by the Howard Government in 1997.

Now I am not sure if it is true that he made those claims, nor if it is true that he played an important part in the development of the Act.

However, the 1997 Act contains provisions imposing a cone of silence on information relating to aged care providers, which I am sure Moran would have appreciated, even if he did not initiate them.

Section 86-1 of the Act defines “protected information” as information that was acquired under the Act and is either personal information or information that “relates to the affairs of an approved provider”. Section 86-2 then creates an offence (maximum penalty two years imprisonment) for recording, disclosing or using protected information unless authorised by law.

Apart from the offence involving the misuse of refundable accommodation deposits, the offences involving protected information are the only offences in the current Act where imprisonment is a potential penalty. Providing unsafe care is not even an offence under the Act.

The anti-disclosure provisions under the Aged Care Act are complemented by the Freedom of Information Act, which creates an automatic exemption from disclosure for protected information under the Aged Care Act.

This stringent regime is entirely appropriate for personal information about people applying for or receiving aged care.

An odd approach

But it is hard to see the justification for secrecy about the affairs of providers, who are receiving a government subsidy of about 75 percent of costs, and who are allowed to demand interest-free loans of hundreds of thousands of dollars from people seeking care.

At the Brisbane hearings of the Aged Care Royal Commission Professor Ron Paterson (previously engaged by the Government to review aged care quality regulation) said:

These are publicly-funded 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.”

As well as recommending regular proactive publication of a much wider range of information about aged care providers, the Royal Commission into Aged Care Quality and Safety recommended (recommendation 88(2)) that the blanket exemption from disclosure under the FOI Act should be removed. It would then be up to an FOI decision-maker to balance the public interest in disclosing information about an aged care provider with any potential adverse effect on the provider from the release.

The Morrison Government responded in May 2021 that “the amendments recommended to the Freedom of Information Act will require consultation with the Attorney‑General’s Department”.

As I wrote in 2022, it is hard to take this response seriously. The object of the FOI Act is to “give the Australian community access to information held by the Government” (section 3), and a proposal to remove an automatic exemption from the Act should have been welcomed and accepted.

In 2022 the Albanese Government introduced the Aged Care Amendment (Implementing Care Reform) Bill 2022, which included provisions enabling publication of a wider range of information – but did not amend the FOI Act.

Where now?

Fast forward to the exposure draft of the new Act.

Clause 322 provides that protected information includes personal information and information that:

(i) is information whose disclosure could reasonably be expected to prejudice the financial interests of an entity; and

(ii) is not public; and

(iii) is not readily discoverable.

The draft then goes on to replicate the features of the current Act, creating an offence for recording, using, or disclosing protected information unless authorised by the Act.

Problematic

While the proposed definition of protected information as it relates to providers is narrower than the current Act, it raises several problematic issues.

Firstly, it is subjective. Every person operating under the Act may have a different view about what information “could reasonably be expected to prejudice the financial interests of an entity”. While guidelines could help standardise expectations, it is still a subjective test.

Second, there is a strong likelihood that risk-averse officials will take very wide view of the scope of material that “could reasonably be expected to prejudice the financial interests of an entity”, meaning the definition as applied could be broadened to encompass a wide range of information.

Third, the other side of a ban on disclosing adverse information is that there is no limitation on disclosing positive information.

Departmental staff will be able to release freely information about the performance of good providers, while not being able to release information about poor providers. This will reinforce the Panglossian fantasy world of the aged care star ratings, where virtually every provider is delivering good quality care.

The exposure draft does not indicate what consequential amendments to other pieces of legislation may be proposed. But if the amendment to the FOI Act simply replaces the reference to the current Act with a reference to the new Act, there will be an automatic exemption from disclosure of any information that “could reasonably be expected to prejudice the financial interests of an entity”.

(Paradoxically this formulation may still result in prejudice even if a document is not released, or is released with redactions. If an FOI request for a document containing information about a specific provider is denied because the material “could reasonably be expected to prejudice the financial interests of an entity”, then it will be evident that prejudicial material exists, and that the provider’s conduct leaves something to be desired.)

An ongoing blanket exemption from FOI is not what the Royal Commission recommended, and it will not support informed debate on aged care policy.

Even if the Government is determined to implement a system where provision of high quality care is an aspiration not a duty, it should at least allow the public access to information that shows how far providers are falling short of the aspiration.

Comments on the exposure draft are due by 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, and author of The Zap column.


Previous articles in this series