Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I too rise to speak on the Aged Care Quality and Safety Commission Bill 2018—to be referred to as the commission bill from here in—as well as the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018. The Australian Greens broadly support these two bills. However, we consider that some amendments are required in order to strengthen the legislation, provide further protections for aged-care consumers and strengthen the Aged Care Quality and Safety Commission and its powers. The commission bill establishes the new independent Aged Care Quality and Safety Commission—to be referred to as the commission for the rest of my contribution—and was announced in the 2018-19 budget following the recommendations of the Carnell-Paterson review. The commission will initially bring together the functions of the Australian Aged Care Quality Agency and the Aged Care Complaints Commissioner. A commissioner is to be appointed by the minister to lead the commission, and the commission bill sets out the various functions of the commissioner, including the consumer engagement function, complaints functions, regulatory functions and education functions.

The establishment of the commission will allow a more holistic approach and better oversight of the aged-care sector as a whole, where information will flow more readily and easily throughout the commission, allowing better identification of where the risks and issues are, and for these to inform decision-making rather than being siloed into various agencies and the Department of Health. This will allow better analysis of the data being collected, assist in working out why there are certain trends, help drive quality improvement and enable innovation to ensure a better quality of life for older Australians and uphold their human rights. Given recent incidents that have played out in the media, it is incredibly important that we get the commission bill right so that older Australians, providers and the public have confidence in the aged-care sector and are clear on the purpose and the role of the commission and so that there are fewer grey areas than currently exist. From 1 January 2020 the aged-care regulatory functions of the Department of Health, including the approval of aged-care providers' compliance and compulsory reporting of assaults, will transition to the commission. A separate bill will be needed to transfer the regulatory functions from the department, and the Australian Greens understand that this bill is anticipated to be introduced and debated some time during 2018.

An overarching concern for us is that the bill does not refer to the human rights of older Australians and instead refers to their consumer rights. At the hearing for the inquiry into these bills, Mr Mitchell of the National Older Persons Legal Services Network—a network of national associations of community legal centres—said:

The national association notes that the bills engage older Australians from the perspective of consumers and build a guarantee of a quality base within the frame of consumer rights. The various incidents, inquiries, reports and reviews that have led us to this point in time have been very clearly about the human rights of older persons. The national association respectfully submits that the framing of rights expectations for older persons within the regulatory framework of aged care should be on the basis of inherent human rights, acknowledging the interdependence and interconnectedness of those rights.

The Australian Greens believe that the human rights of older Australians will be a strong focus of the upcoming royal commission and that there is a need for these rights to be acknowledged in the commission bill. I will be moving an amendment to include reference to human rights in the object of the commission bill.

In our additional comments to the inquiry into these two bills, we outlined that we consider that the commission bill should include reference to the Chief Clinical Adviser and specify that the Chief Clinical Adviser's role should have responsibility for overseeing and monitoring restrictive practices on medication management. We cannot envisage a time when the Chief Clinical Adviser's position will not be needed and are of the view that the requirement for certainty for the position into the future outweighs the need for flexibility that was articulated in the minister's second reading speech on the commission bill. We are pleased to see that the government will be amending the commission bill to reference the role of the Chief Clinical Adviser, establishing that the commissioner will be required to appoint a person for this position to assist them in the performance of their function.

In relation to restrictive practices, the Carnell-Paterson review recommended that the commission have oversight of the use of restrictive practices in residential aged care. While the Carnell-Paterson review also recommended that the Chief Clinical Adviser have responsibility for reviewing the use of antipsychotic medications, the Australian Greens would be satisfied with the Chief Clinical Adviser having oversight and monitoring responsibilities for restrictive practices and medication management in the first instance. This is extremely important. We need to ensure that there is someone responsible for ensuring that restrictive practices are used only as a last resort and in the least restrictive way, as well as someone advocating and pursuing the elimination of their use.

Medication management is also desperately in need of oversight. At the hearing for the inquiry into the bills, Dr Kidd, the chair of the Australian Medical Association Council of General Practice, said:

Many of the cases of abuse and neglect in aged-care settings involve inadequate clinical care. The clinical care accreditation standard was the single highest outcome not met by residential aged-care facilities in 2016-17, followed by the medication management standard.

We have to improve on this. We are pleased to see that the supplementary explanatory memorandum to the commission bill outlines a number of possibilities for the scope of work for the Chief Clinical Adviser, including best practice clinical care, minimising infection-related risks, clinical governance and the use of restraints. While we will not be seeking to amend the commission bill today to specify the scope of the Chief Clinical Adviser's role, we will be keeping a close eye on the development of this position following the commission's establishment and may seek to deal with this during the debate on the next bill in the new year.

In our additional comments to the report on the inquiry into these two bills we outlined our concerns regarding the commission being referred to as 'a single point of contact for older Australians and their families' given the commission will be unable to receive complaints about My Aged Care or the assessment processes. We argued that the government should not be separating the processes of assessment and determination of eligibility from service delivery. We think this is illogical, as they are entwined with one another. The commission's complaints function should be broadened to allow older Australians and their families to lodge complaints with the commission about their experiences with My Aged Care and the assessment teams. I will be asking the government about this during the committee stage. We understand that this issue is somewhat complex; however, the Australian Greens, at a minimum, want to see this issue resolved in the next bill next year.

In relation to the commissioner's consumer engagement and education functions, the Australian Greens raised concerns in our additional comments regarding the lack of reference to representatives of consumers in clause 17 of the commission bill and the lack of reference to the workforce of providers in clause 20. In relation to the first of these concerns, COTA Australia said in its submission:

… many consumers of aged care services (in particular those care recipients in residential aged care) require support to be involved in these functions of the Commissioner, and indeed family and friend carers are a key and absolutely valid consumer constituency.

The government's amendments to clause 17 address our concerns. The amendments will ensure that representatives of aged-care consumers are also consulted in relation to and are the beneficiaries of the commissioner's development of best practice models for the engagement of aged-care providers. In relation to the second of these concerns, we do not want to see the education of the workforce of providers, in the broader sense of the term, disappear once the commission is established. The specification in the supplementary explanatory memorandum that reference to aged-care providers in relation to the commissioner's education function includes their staff addresses this concern.

It became apparent during the hearing for the inquiry into the bill that clause 59, which provides the commissioner with the power to make information about an aged-care service publicly available, did not include the Commonwealth Home Support Program or, for that matter, any Commonwealth funded aged-care services. It is important that, once all Commonwealth funded aged-care services come under the remit of the commission, the commissioner is empowered to release information about them publicly, as they will be able to be an aged-care service. The government's amendment to include clause 59(A) to the commission bill will fix this omission. However, we have an amendment to both clauses 59 and 59(A) specifically to allow the commissioner to make information about the number of staff and the skill mix of staff of an aged-care service providing direct care to aged-care consumers publically available. This is important as we believe the current ratio of aged-care workers to aged-care consumers is too low, and this needs to be addressed. Allowing the commissioner to release such information will encourage public scrutiny of the situation and informed assessments to be made and will hopefully lead to the situation being improved.

We raise concerns in our additional comments regarding the consent provisions in relation to the powers of the authorised complaints officers and regulatory office officials in relation to premises. The Australian Greens believe that only aged-care consumers should be able to withhold consent if the premises are their own home and that only aged-care consumers should be able to withhold consent in residential aged-care facilities if a commission officer is there to see them. We will be asking questions during the committee stage about this issue.

We have also called for a review of the legislation. In our additional comments, we suggested a review after three years. The government's amendment will cause an independent review of the operation of the act and the rules to occur within six months of the fifth anniversary of their operation. The Australian Greens support the addition of a review provision and that the report of the review will be required to be tabled in each house of parliament.

The Australian Greens have concerns regarding residential aged-care facilities refusing access to advocates and other formal representatives of older Australians. At a hearing for the inquiry into the bills, at least two witnesses outlined their experiences of the relevant services being refused entry on a number of occasions. We have a great deal of concern about that. The Australian Greens want to ensure that advocates and other representatives are able to enter residential aged-care facilities as appropriate. I will be asking questions during the committee stage about the issue, as it is critical that aged-care facilities do not block access to advocates and other representatives. After all, these facilities are people's homes.

We are pleased to see that the government will be amending clause 23 of the commission bill to ensure complainants won't be charged fees by the commissioner for making a complaint, nor will the commissioner have the ability to charge fees to consumers and their representatives in relation to their consumer engagement function. Likewise, we are pleased to see the government will be amending clause 41 of the commission bill to ensure that those with the experience and knowledge of issues affecting aged-care consumers be appointed as members of the advisory council.

There is also a need for clarity regarding what will be included in the next bill, due next year, specifically regarding sanctions and the enactment of a serious-incident response scheme and a quality improvement framework. I note that our friends over the ditch in New Zealand have a process for serious-incident reporting which has led, I understand, to a decrease in falls and fewer older people being admitted to hospital with hip fractures and injuries of that nature. The community affairs committee, on its recent trip to New Zealand, heard from the Health Quality and Safety Commission on this issue and on its powers to establish mortality inquiries, which have also helped. That may be something we should consider in the future here in Australia if we don't see improvements in the current situation.

I'd like to thank the government for taking on board the concerns that have been raised following the inquiry into this bill, once again showing the usefulness of the Senate committee process. I'd like to thank them for the amendments they have made. We will be moving amendments to address issues they have not resolved, and, as I articulated in my contribution, we'll be asking a series of questions to clarify the operation of some elements of the commission. We will be supporting this bill. We think it will significantly improve care. We do think there is some way still to go, but we hope that, if done properly, this will make a significant contribution to improving care in this country.