Monday, 26 November 2018
Aged Care Quality and Safety Commission Bill 2018, Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018; In Committee
I table an addendum to the explanatory memorandum relating to the Aged Care Quality and Safety Commission Bill 2018. The addendum responds to concerns raised by the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights. I also table two supplementary explanatory memoranda relating to the government amendments to be moved to the Aged Care Quality and Safety Commission Bill 2018.
I seek leave to move government amendments (1) to (9), as circulated, together.
(1) Clause 17, page 12 (line 3), after "consumers", insert "and their representatives".
(2) Clause 17, page 12 (line 7), after "consumers", insert "and the representatives of those consumers".
(3) Clause 23, page 16 (after line 32), after subclause (1), insert:
(1A) However, the Commissioner must not charge:
(a) an aged care consumer, or their representative, fees for services provided by the Commissioner in performing the consumer engagement functions; or
(b) a complainant fees for services provided by the Commissioner in performing the complaints functions.
(4) Page 22 (after line 18), at the end of Part 4, add:
35A Chief Clinical Advisor
The Commissioner must, in writing, appoint a person who is a member of the staff of the Commission, or a consultant engaged under section 35, as the Chief Clinical Advisor to assist the Commissioner in the performance of the Commissioner's functions.
(5) Clause 41, page 25 (line 21), omit paragraph (3) (c), substitute:
(c) issues affecting aged care consumers or their representatives;
(6) Clause 59, page 36 (line 7), after "places", insert "(if any)".
(7) Clause 59, page 36 (after line 7), after paragraph (1) (b), insert:
(ba) if the service is a home care service—the number of care recipients provided with care through the service;
(8) Page 36 (after line 26), at the end of Division 3, add:
59A Information about Commonwealth - funded aged care service may be made publicly available
(1) The Commissioner may make publicly available the following information about a Commonwealth-funded aged care service:
(a) the name and address of the service;
(b) the number of persons who are recipients of the service;
(c) the services provided by the service;
(d) the facilities and activities available to persons who are recipients of the service;
(e) the name of the service provider of the service;
(f) information about the variety and type of service provided by the service provider;
(g) information about the service provider's performance in relation to the provider's responsibilities under the funding agreement that relates to the service;
(h) any action taken, or intended to be taken, under this Act or the rules to protect the welfare of persons who are recipients of the service, and the reasons for that action;
(i) any other information of a kind specified in the rules for the purposes of this paragraph.
(2) Information disclosed under subsection (1) must not include personal information.
(9) Page 52 (after line 14), after clause 76, insert:
76A Review of operation of this Act and the rules
(1) The Minister must cause an independent review of the operation of this Act and the rules to be conducted within 6 months after the fifth anniversary of the commencement of this Act.
(2) The persons who conduct the review must give the Minister a written report of the review.
(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.
The government proposes a number of amendments to the Aged Care Quality and Safety Commission Bill. The proposed amendments address various issues raised in the Senate Community Affairs Legislation Committee's inquiry into these bills. The government welcomes the committee's recommendation that the bills be passed and that establishing the commission should not be delayed. As the committee noted, there will be a further opportunity to pursue improvements in a second stage of reform, as signalled in the objects of the bill. However, after considering the issues raised in the inquiry with both the committee and stakeholders that appeared before the committee, the government considers that there are some amendments which would be appropriate to be made now, to apply from the commencement of the commission on 1 January 2019.
These amendments will support the new commission in its role as the single point of contact for aged-care consumers and providers of aged care in relation to quality of care and regulation. These changes refine or clarify the government's policy intent to deliver more integrated and responsive regulatory oversight of the sector and contribute to the bill's objects and focus for consumers. In summary, these changes will broaden the scope of the commissioner's consumer engagement functions to include the representatives of aged-care consumers; remove the ability of the commissioner to charge fees for services to complainants and consumers for certain functions; provide for the commissioner to be supported in the performance of their functions by a chief clinical adviser appointed by the commissioner; extend eligibility for appointing members of the advisory council to include persons with experience or knowledge of issues affecting aged-care consumers or their representatives, such as informal carers; extend the commissioner's power to publish information about aged-care services to include other Commonwealth-grant-funded services; and provide for a statutory review of the operation of the act to occur in early 2024, which will be five years after the commencement of this bill and four years after the second stage of reforms foreshadowed in this bill. I commend these amendments.
Yes, I do. I move Greens amendment (1) on sheet 8577:
(1) Amendment (8), after paragraph 59A(1) (d), insert:
(da) the number of staff, and the skill mix of staff, providing direct care to persons who are recipients of the service;
Temporary Chair, could I seek your guidance. I have a series of questions to clarify the operation of the commission. I am wondering whether I should start asking those questions. Now that I have moved that amendment, should I do it now?
The TEMPORARY CHAIR: Senator Siewert, it would probably be advantageous for us to deal with your amendment and seek a response from the government. The government amendments have been moved. After the failure or passage of those amendments—whichever it may be—we will come back to your general question.
I thank the opposition for their support of our amendments. We thank Senator Siewert for her proposed amendment to the government amendments. The government doesn't support the proposed amendment to clause 59A of the bill for the same reasons it does not support the proposed amendments to clause 59. The government does not support the proposed amendment to include a reference to the number of staff, and the skill mix of staff, providing direct care to care recipients. There is a risk that publishing the wrong information, or information in the wrong context, will mislead consumers about what it means and adversely affect the business of providers. Additionally, appropriate arrangements must also be implemented to facilitate the commissioner receiving, analysing and reporting this information from providers and regulating its integrity. Making such an amendment before there has been an opportunity to consider and implement arrangements to support this proposal is likely to raise expectations which will not be fulfilled.
I want to ask some questions specifically around this particular amendment and in response to what the minister has just said. Is the government proposing, as we noted in our contributions and as you yourself earlier noted, that there will be further amendments to this commission process? Is the government thinking that you will be dealing with the skill mix a bit later on? This is a really serious issue and it is going to keep coming up again and again. It is better to have a proper process in place rather than what we have now. For example, we don't even have a guarantee that we will have a nurse on 24/7, which some of us think is the absolute minimum that would be required. Recent studies have shown that the amount of contact and care hours that are required is four hours and 18 minutes, and we are nowhere near that in Australia. Those are the sorts of things the public wants to know, consumers want to know and, importantly, the families of residents in aged care particularly want to know as well.
Thank you, Senator Siewert. To the first part of the question, the answer is yes—that there are further reforms that have been flagged. But, in terms of the skills mix that you're specifically pointing to, the government's view is that this isn't the right act for that to be considered in and that, in fact, the Aged Care Act is where skills issues should be considered. So, in terms of the government's thinking, obviously the government will make announcements in due course, but we believe that the right place to look at those issues is in the Aged Care Act.
Labor understands the intent of the Greens amendment. The government is currently sitting on the Aged Care Workforce Strategy. For some months, Labor has been calling on the government to address the A matter of care workforce strategy, as this should have been done immediately. Aged-care workforce development is not an optional policy area. The aged-care workforce is diverse, and we acknowledge the work that is being carried out by nurses, carers and allied health professionals. We hope that the government act on the workforce strategy that is before them. It's all there laid out for them; they just need to take some action. Labor will not be supporting the Greens amendment. We think it can be done in the future in a different piece of legislation.
I will note that this is about releasing the information. While I accept that there are other pieces of legislation that regulate the aged-care sector, this would enable people to at least get access to information about what's going on. As I said, we do appreciate the fact that there's a lot of work to do and that other acts would be required to specifically start regulating the process if the government were so minded. We think this would improve the operation of the commission and certainly enable the community to get better access to and understanding of what's happening in the provision of aged care.
I was wondering whether I could ask my questions before we go to the vote on this series of amendments.
The TEMPORARY CHAIR: If they're related to these amendments, then of course.
Hopefully they are. The government's amendments are quite wide ranging. As I articulated in my second reading contribution, we will be supporting those amendments. We're really pleased that the government responded to the Community Affairs Committee's points, raised in the inquiry, particularly a number of the points I raised in my additional comments on this report. Again, I'll just make the point that it does show the benefit of the committee inquiry process. But there are a few outstanding issues that I want to clarify. During the committee's inquiry into the bills, COTA Australia and other consumer organisations called for the proposed commission to incorporate My Aged Care and the assessment processes within the complaints purview of the commission. The government is not going to do this. Can the minister confirm that he will direct the commissioner to adopt a no-wrong-door policy and ensure that staff connect consumers with the appropriate complaint mechanism?
It's my understanding that that is the intention, but, in terms of an ability to direct, I'd need to clarify. I don't believe there is that ability, but that is certainly the intention of the government.
Thank you. That will go some way to addressing the concerns we have with the process. Will the government also ask the commissioner to include in their annual report the number of calls received in relation to My Aged Care and in relation to assessments by RAS and ACAT staff?
Unfortunately I'll have to take that one on notice. Certainly the government would be willing to discuss it with the new commissioner, but, for that level of detail, I'll have to take that on notice. I'm sure we can get you some more information on that out of session.
Thank you. That would be appreciated. It's one of the issues that we're keen to have better articulated, and I know consumers and their advocates want that too—a better understanding of the number of complaints and the issues in relation to My Aged Care, RAS and ACAT. What additional steps is the government taking to investigate including My Aged Care and the assessment processes within the complaints purview through the next bill? Is this being considered? If you can't answer that one, is the government prepared to consider including that in the next bill?
I know it's not in the purview of this bill. That's why I'm asking: is the government looking at potentially including it in the next bill so that the whole process, as I articulated in my speech on the second reading, is covered?
All right, I'll keep working on that one! During the committee's hearings on the bills, we heard that OPAN—the Older Persons Advocacy Network—has been refused entry into residential aged-care facilities by approved providers. COTA Australia raised concerns that the new legislation did not incorporate the existing section 10(3) of the accountability principles, which states:
The approved provider must not unreasonably withhold consent if access to the premises of the service is required in circumstances where the CEO of the Quality Agency … reasonably believes that there is a serious risk to the safety, health or wellbeing of a person who is being provided with care through the service.
How will the minister ensure that the new staff of the commission will not be refused entry in these circumstances?
Entry and search can only occur when the occupant of the premises has given consent for the authorised complaints officer or regulatory official to do so. Where entry is sought to a consumer's own home, the consumer's consent must be received before entry. Approved providers have an obligation under the Aged Care Act to cooperate and facilitate access to their premises for authorised complaints officers and regulatory officers of the commission, and failure to comply with responsibility can result in a sanction being imposed on an approved provider. Certain procedures must be followed if sanctions are to be imposed.
You're just looking for a general response in relation to that? I'm advised there are existing provisions under the Aged Care Act which secure access to aged-care homes for advocates and OPAN workers. Approved providers are required to allow access as part of their responsibilities to recognise the user rights of consumers, and this includes access to advocates. These responsibilities are set out in the User Rights Principles 2014, and the department can take regulatory action if providers fail to comply.
Thank you. Is the government satisfied that the legislation makes it clear that only consumers will be able to withhold consent under proposed sections 66 and 69 of the Aged Care Quality and Safety Commission Bill if the premises are their own home, or if the premises are a residential aged-care facility when the commission officer is there to see them specifically?
Can I just check. The scenario that's been raised with us is where, for example, a service provider is there at the time, answers the door, denies consent and doesn't necessarily tell the resident, or the resident doesn't get the opportunity to answer. So it is to be assured that it's the resident that is saying yes or no.
Can the government confirm that the sanctions, specifically those under part 4.4 of the Aged Care Act 1997, will be transferred to the commission in the next bill? Is that what the government plans, or have you not yet made up your mind?
One of the recommendations of the Carnell-Paterson review was for the enactment of a serious incident response scheme, which I touched on in my second reading contribution. Could you indicate where the government is up to with regard to this scheme. Has there been a decision as to whether this will be included in the next bill or whether it would sit within the Aged Care Act 1997?
You'll be pleased to learn that this is potentially my last question, depending on the answer. Is the government considering undertaking work on a quality-improvement framework to ensure that near misses are being reported and that work is being done to continuously improve care for older Australians?
Could I just clarify then: there's a group of things around quality improvement and the Serious Incident Response Framework, and they're being worked on together? I saw nodding heads, for the Hansard. Can I ask then about the time frame. We didn't really get to the full final point in terms of when that is being considered—if it's the next bill or the Aged Care Act. Is there a time frame for making the decision on where that will go, if that makes sense?
The question before the chair therefore is that government amendments (1), (2), (3), (5), (6), (7), (8) and (9) on sheet GN154 be agreed to.
Question agreed to.
The TEMPORARY CHAIR: The question before the chair now is that government amendment (4) on sheet GN154 be agreed to.
Question agreed to.
by leave—I move amendments (1) and (2) on sheet 8522 together:
(1) Clause 5, page 2 (line 21), after "enhance the", insert "human rights,".
(2) Clause 59, page 36 (after line 10), after paragraph (1) (d), insert:
(da) the number of staff, and the skill mix of staff, providing direct care to care recipients receiving care through the service;
These amendments relate to the comments that I made during my second reading contribution and relate to the human rights element for older Australians. I found very convincing evidence from Mr Mitchell, which I articulated in my second reading contribution, around the human rights of older Australians. He articulated that very well and, in fact, it was just after the Four Corners reports. What we saw there were the human rights of older Australians being violated, in many people's opinion, including my own. We think it would benefit the commission if the objects of the commission included reference to older Australians' human rights. There are also very strong opinions among many people that, in fact, there needs to be an international convention on the rights of older peoples around the world. It's something that I also find very attractive and will continue to pursue. In the meantime, we think a valuable improvement to the bill and to the role of the commission would be to amend the objects to include reference to older Australians' human rights.
In relation to these amendments, we commend the Greens in their effort to restore trust and confidence in a regulatory system that is failing to protect older Australians, particularly in relation to the airing of the Four Corners program. But, while we understand the Greens' intent of these amendments, the ad hoc drafting is not sufficient and there needs to be more consultation. The government has indicated it will need to rewrite the Aged Care Act. It is best, we believe, that any amendments be done at that time, after proper consideration and after the act has been reviewed. In relation to the royal commission and the interest that the public have in the sector, we feel that it is best done, as I said, after the act has been reviewed, and therefore we won't be able to support the Greens amendments.
The government thanks Senator Siewert for her proposed amendments to the Aged Care Quality and Safety Commission Bill, but the government doesn't support the proposed amendments to clause 5 and clause 59. The proposed amendment to clause 5, to include a reference to human rights, is not supported as the rights of aged-care consumers are matters dealt with under the Aged Care Act. As Senator Polley has just indicated, this bill sets up the regulatory and administrative arrangements to give effect to the rights and responsibilities under the Aged Care Act but not to create or give rights. The proposed amendment to clause 59, to include a reference to the number of staff and skill mix of staff providing direct care to care recipients, is not supported for the reasons outlined earlier.
I move amendment (1) on sheet 8590 revised:
(1) Page 22 (after line 18) , at the end of Part 4 , add:
35A Chief Clinical Advisor
(1) The Commissioner must, in writing, appoint a person who is a member of the staff of the Commission, or a consultant engaged under section 35, as the Chief Clinical Advisor to assist the Commissioner in the performance of the Commissioner's functions.
(2) The Commissioner must not appoint a person under subsection (1) unless the person:
(a) is a geriatrician; or
(b) is a general practitioner experienced in aged care; or
(c) has the appropriate clinical skills and experience to fulfil the person’s duties as the Chief Clinical Advisor.
It will ensure that the Chief Clinical Adviser has appropriate qualifications.
I'd like to thank Senator Griff for his amendment. As I said earlier, I commend his interest in this policy area. Even in the amended form, Labor will not be supporting this amendment.
Again, the government supports Senator Griff for his proposed amendment to the Aged Care Quality and Safety Commission Bill but does not support the proposed amendment to clause 35A of the bill to specify what professional qualifications the Chief Clinical Adviser must hold. We want to ensure that the commissioner has sufficient flexibility to appoint a Chief Clinical Adviser who will best support them in performing their functions. Having substantial clinical knowledge, skills and experience is inherent within the role of Chief Clinical Adviser, as, without these skills, the person could not provide the support that the commissioner would want to have from their Chief Clinical Adviser on complex clinical issues. Specifying that the role must be performed by a medical practitioner also risks excluding other relevant clinical professionals. In addition, the government has announced that the commissioner and Chief Clinical Adviser will be supported by an expert clinical panel which would be accessed when specific complex issues emerged that required specialist expertise, advice and assessment. It is expected that the expert clinical panel would include members from a range of clinical specialties.
Just a point of clarification: this amendment does not specify a general practitioner. In fact, it states:
(c) has the appropriate clinical skills and experience to fulfil the person's duties as the Chief Clinical Advisor.
That very much sounds like the description that was just presented to us.
The question before the chair is that amendment (1) on sheet 8590 be agreed to.
The TEMPORARY CHAIR: So the question is that the Aged Care Quality and Safety Commission Bill 2018, as amended, be agreed to, and the Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018 stand as printed. Senator Siewert?
I just want to clarify one question. I may have misheard or misunderstood the answer when I asked the question about the capacity around consent for access to residential aged-care premises. Do I understand that an approved provider can deny access? I want to be really clear, because that is significantly different to how I understood that the process would operate.
Technically, they can. But an aged-care provider is required to meet its obligatory requirements, and, if it doesn't, sanctions can be applied. So, technically, as to what you are saying: yes. Practically, I think it's probably a different situation. There are sanctions that can be applied if they don't meet their obligatory requirements.
I'm going to try to make this as quick as possible. We've heard previously that, if people are denied access, it may take a while for the sanctions process to go through in the meantime. If somebody's raised a complaint, the timeliness of access could well be an issue. If there is a complaint and the providers deny access, it gives them time to deal with things. In fact, there needs to be more timely access.
Thanks, Senator Siewert. Part of those obligatory requirements is that providers are required to cooperate, and the department does have the power to issue a warrant, which can happen quite quickly.
Thank you for that clarification.
Aged Care Quality and Safety Commission Bill 2018, as amended, agreed to; Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018 agreed to.
Aged Care Quality and Safety Commission Bill 2018 reported with amendments; Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018 reported without amendments; report adopted.