Embedding a rights-based approach in the new Act
The new Aged Care Act will introduce a Statement of Rights. This outlines 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.
Empowering individuals
The new Act will empower individuals through:
- new supporter 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 the delivery of funded aged care services is compatible with the Statement of Rights
- the Code of Conduct for Aged Care
- strengthened Aged Care Quality 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
- significant civil penalties for serious breaches.
Read more about how to raise a concern or to make a complaint.
Statement of Principles
A Statement of Principles will be included to guide decisions, actions and behaviours required under the new Act. These principles will also apply to us and the ACQSC.
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 registering supporters
- include principles and duties to guide supporters through supported decision making
- help protect the autonomy of older people through a supported decision-making model.
Older people will be able to register one or more people of their choice to assist them in their decision-making under the new Act.
Supporters will be able to request, access or receive information, and assist the older person in communicating information and decisions.
These supporters will have to follow a set of duties. For example, supporters will have to:
- find out the wishes of the person they are supporting
- act in a manner that promotes the person’s personal, cultural and social wellbeing
- strive to maintain the person’s capacity to make their own decisions.
The System Governor will be able to register some people to make decisions on behalf of an older person (where they are appointed under a state or territory law, or in exceptional circumstances).
Where a person makes a decision on behalf of an older person because they have been registered as a decision-making supporter in exceptional circumstances, they will have to:
- only make decisions on the person’s behalf as a last resort
- make those decisions based on the will and preferences of the older person
- comply with a number of other duties that promote the will, preference, autonomy and independence of the person.
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
- an independent aged care advocate.
People can make the report in person, over the phone or in writing. The report can also be made anonymously.
The report can be made about someone who has not followed the aged care law, or more broadly, about an organisation that hasn’t 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 or a lawyer, or to prevent a serious threat to a person or people.