The Final Report of the Royal Commission into Aged Care Quality and Safety (‘Final Report’)1 sets out a roadmap to comprehensively change the design, objectives and governance of the aged care sector. In making its recommendations,2 which includes a new human rights-based Act, the Royal Commission observed one of the factors hindering genuine reform in the past has been a historically reactive approach to legislative and regulatory change.
Promisingly, an innovative, ‘outside the box’ approach to future reform efforts has been advocated by the Commissioners. So, what is the Royal Commission recommending be done differently this time, and how will this enable the aged care sector to deliver the compassionate, tailored, high-quality care our older Australians deserve?
An iterative approach to aged care legislation over recent decades has contributed to a system described by the Royal Commission as prioritising rigid conformity over innovation.
Legislative and regulatory reform has been identified as a key lever for transformation of the sector – not only recommending a re-imagining of existing legislation into a new, human-rights based Act, but also changing how Government approaches law-making.
Through adopting innovative legislative practices, such as principle-based legislation and leveraging existing regulatory models, Government can lay the foundations for a system which is agile, responsive, and entirely focused on improving care and quality of life outcomes for our older Australians.
Background to the Royal Commission
|Commonwealth legislative activity in the aged care sector is not new.|
Since the passage of the Aged Persons Homes Act in 1954, there has only been increased recognition of the need for more direct Commonwealth involvement in this area, and more stringent oversight of funding and service delivery. A national system was established with the Aged Care Act 1997 – the primary legislation upon which the modern system is based, and the Act which, as a result of the recommendations, now faces a complete overhaul.
Recent decades have seen significant evolution in types of aged care providers involved, policy priorities, market dynamics, and community expectations of the sector. Legislation has tried to keep up, with recent reforms including greater emphasis on “consumer” rights through the Charter of Aged Care Rights, and establishment of the Aged Care Quality and Safety Commission. However, as the Royal Commission noted, despite these often-reactive adjustments to the legislative and regulatory framework, the “broad architecture” of the system remains as it was in 1997. If the fundamental systemic overhaul proposed by the Royal Commission is to be achieved, it is clear that a similarly new, innovative approach to legislation must also be adopted.
A significant move to human rights-based legislation
The Final Report recommends replacement of the Aged Care Act 1997 with a new human rights-based Act, as well as numerous other amendments to the existing regulatory framework.3 Australia has signed up to a number of international instruments which protect the rights of older people,4 and the Royal Commission recommended that the new Act be based on the core human right described in the International Covenant on Economic, Social and Cultural Rights ‘of everyone to enjoyment of the highest attainable standard of physical and mental health.’5
Existing aged care legislation already includes some human-rights based concepts through, for example, the User Rights Amendment (Charter of Aged Care Rights) Principles 2019, an instrument made under the Aged Care Act. The new recommendations go further than these existing measures by protecting and advancing the rights of older Australians through an aged care system which recognises a universal right to high quality, safe and timely support.6
How is this an improvement?
|Emphasising the importance of a consistent, human-rights based approach.|
Implementing legislation based upon human rights and other principles would address one of the key shortcomings noted in many submissions to the Royal Commission – that is, regulations which prioritise “process and documents more than care outcomes”.7
An overly prescriptive legislative approach can lead to poorer care outcomes, limiting the sector’s ability to adapt, meet changing community expectations, and constraining it to a point-in-time idea of best practice. The Royal Commission’s recommendations seek to address this.8
The subject of restrictive practices demonstrates how unhelpful prescriptive regulations can be, and clearly illustrates the potential benefits of enshrining human rights protections in law. Following a lengthy examination, the Royal Commission concluded that use of physical and medicinal methods to restrain or pacify aged care residents was of questionable effectiveness.9 Despite this, they are common and sometimes indiscriminately used (even to the point of constituting abuse)10, causing physical and psychological harm and in some instances, death.11
Although a range of detailed State, Territory and Commonwealth laws apply to restrictive practices, its regulation has been described as complex, inconsistent and, ultimately, “weak”.12 The recommendations emphasise the importance of a consistent human-rights based approach, citing both the national framework and strict rules developed by the disability sector and key work health and safety duties as exemplars.13 Further, Recommendation 4 advocates for the establishment of a National Cabinet Reform Committee on Ageing and Older Australians to coordinate the legislative responses in each State and Territory.14 This demonstrates that whilst the Royal Commission’s terms of reference are limited to aged care, it has adopted a holistic mindset and identified opportunities for consistent regulation across sectors, jurisdictions and legal frameworks.
Changing how laws are made
|Continuing the previous approach of piecemeal legislative “fixes” in aged care has been recognised as no longer sufficient.|
Without a changed approach to law-making itself, there is a risk that ‘history will repeat’, with legislation and regulations serving to hinder, not enable, better outcomes in the sector.
In plotting a pathway to a transformed industry, the Royal Commission has shown a willingness to look outside-the-box and outside-the-sector for solutions, particularly when it comes to legislating in complex areas. These include embracing principles-based legislation and regulations, drawing upon international and human rights legal sources, and leveraging regulatory frameworks in other sectors to improve consumer care. Whilst “new legislation” is undoubtedly the legal headline from the Final Report, these legislative nuances are also noteworthy and promising signs for the future.
This Royal Commission has painted a picture of a system in turmoil, which is deeply distressing for many Australians. However, it also provides reason for optimism, and a long-overdue recognition that transformative, rather than iterative, change is necessary to achieve real outcomes.
Legislation is not the only “lever” for change identified – an overhaul of this scale requires an integrated approach considering funding, workforce, industry, and other factors. However, an appropriate regulatory framework, focused on outcomes, with human rights at its core, will provide the foundations for the compassionate, adaptable, transparent, and effective system of aged care that our older Australians deserve.
The authors acknowledge the work of Amy Jones, Consultant, in developing this article.
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1. Royal Commission into Aged Care Quality and Safety, (March 2021) Final Report: Care, Dignity and Respect (‘the Final Report’).
2. The key recommendations made by the commissioners surrounding legislative reform include:
|Recommendations 1: Outlines the need for a new Act with a central focus on the safety, health and wellbeing of older Australians.
Recommendations 2-3: Describes the key principles and objects to be included within that new Act;
Recommendation 14: Lays out the need for a general, positive and non-delegable statutory duty on providers to ensure the quality of care provided is to a high standard and safe.
Recommendation 17: Lists the Commissioners recommendations for reform of regulation of restraints.
Recommendation 88: Legislative amendments to improve provider governance.
3. Final Report, Volume 1, p.205: Recommendation 1.
4. The Constitution of the World Health Organization; the International Covenant on Economic Social and Cultural Rights (ICESCR); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD) and the Convention on the Rights of Persons with Disabilities (CPRD), the 1991 United Nations Principles for Older Persons.
5. Final Report, Volume 1, p14.
6. Final Report, Volume 1, p. 205: Recommendation 1.3.
7. Interim Report, Volume 1, p46.
8. Final Report, Volume 1, p222, 252: Recommendations 17 and 65.
9. Final Report, Volume 2, p97.
10. Counsel Assisting’s Final Submissions, p11, .
11. Final Report, Volume 2, p97.
12. Interim Report, Volume 1, p208.
13. Final Report, Volume 1, p. 219, 222: Recommendations 14 and 17.
14. Final Report, Volume 1, p208: Recommendation 4.