Embedding a rights-based approach in the new Act
The new Aged Care Act will introduce a Statement of Rights, outlining the rights that older people in the aged care system should expect when seeking or accessing Government-funded aged care services.
This will help ensure that older people and their needs are, and remain, at the centre of the new system.
A rights-based framework
The new Act has been designed to uphold the rights of people accessing aged care services through its:
- constitutional basis and referencing of relevant international conventions
- independent system oversight
- equitable access, with individuals assessed against a culturally safe and appropriate single assessment framework.
The new Act will empower individuals through:
- new nominee arrangements based on a supported decision-making model, including increased protections for maintaining autonomy and dignity
- a revised information management framework and increased system transparency
- a new complaints management framework, including whistleblower protections and restorative outcomes
- supporting and funding the aged care advocacy network.
Obligations on providers and workers
The new Act will enforce obligations of aged care providers and the aged care workforce through:
- streamlined and clarified obligations and registration conditions – including that a provider must demonstrate they understand the Statement of Rights and have practices in place to ensure services are not delivered in a way that is incompatible with the rights
- the Code of Conduct for Aged Care
- strengthened Aged Care Quality Standards and Financial and Prudential Standards
- new obligations to demonstrate a commitment and capability to continuous improvement towards high-quality care.
Pathways for upholding rights
Pathways will be available to uphold the rights set out in the new Act.
Complaints processes will be a primary pathway used to assist older persons to resolve concerns about their rights, as we have heard from stakeholders this is important so they can access restorative and timely outcomes.
When an older person (or someone connected to them) believes their rights have been breached, they can raise this with their provider. They can also make or escalate a complaint directly to the Aged Care Quality and Safety Commission (ACQSC).
Other pathways will be in place to enable the ACQSC to take action where a provider does not follow the Statement of Rights and breaches their obligations under the Act.
The ACQSC will also undertake regulatory activities to detect risks and engage with providers before breaches occur. They will work with registered providers to improve performance and reduce risks to the health and safety of older people. For example, they may:
- undertake additional monitoring activities
- issue notices requiring a provider to take particular actions to address identified issues.
Enforcement pathways will also be available to fix identified issues and deter similar conduct. ACQSC responses will be proportionate to the conduct involved, but could include:
- compelling providers to take certain actions at their own expense
- fines for providers or workers
- civil penalties and criminal penalties for serious breaches.
Read more about:
Statement of Principles
Supported decision making
The Royal Commission into Aged Care Quality and Safety noted the importance of supported decision making to ensure people have control and choice over their own life and care.
The new Act will:
- establish a clear legal framework when appointing nominees
- include principles and duties to guide nominees through supported decision making
- help protect the autonomy of older people through a supported decision-making model.
Older people will be able to appoint one of 2 types of nominees – a supporter or a representative.
These nominees will have to follow a set of duties. For example, nominees will have to:
- find out the wishes of the person they are supporting or representing
- act in a manner that promotes the person’s personal and social wellbeing
- strive to maintain their capacity to make their own decisions.
Read more about nominee arrangements and supported decision making.
Protection for whistleblowers
The new Act will do more to protect whistleblowers – people who call out issues. This is to make sure older people, people who are close to them, and aged care workers can report information without fear that they will be punished or treated unfairly.
People can make a report to:
- the Commissioner or a staff member of the ACQSC
- the department, or an official of the department
- a registered provider
- a responsible person of a registered provider
- an aged care worker of a registered provider
- a police officer.
People can make the report in person, over the phone or in writing. The report can also be anonymous.
The report can be made about someone who has not followed the aged care law.
If someone makes a report, they will:
- be protected from any negative results that come from making the report
- have their identities or identifying information protected, with some exceptions – for example, where it is necessary to share information with the ACQSC, a lawyer or to prevent a serious threat to a person or people.
Read more about protection for whistleblowers.