Foundations of the new Aged Care Act

This webinar provided information to older people, their families and carers, and the aged care sector on the proposed foundations of the new Aged Care Act. Consultation on these proposed elements ran from August to September 2023.

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Foundations of the new Aged Care Act - Slides

This webinar provides information to older people, their families and carers, and the aged care sector on the proposed foundations of the new Aged Care Act. Consultation on these proposed elements will commence on 4 August 2023.

Webinar recording

59:10

[The visuals during this webinar are of each speaker presenting in turn via video, with reference to the content of a PowerPoint presentation being played on screen]

Amy Laffan:

Good afternoon and thank you all for tuning in to today’s webinar about the proposed foundations of the new Aged Care Act.

My name is Amy Laffan. I’m the First Assistant Secretary of the Quality and Assurance Division in the Aged Care Group at the Department of Health and Aged Care. I’m joined today by Mel Metz, Assistant Secretary of the Legislative Reform Branch and two Directors in her branch, Naomi Lavithis and Cathy Milfull. Also joining us for the Q&A session later is Jessica Robinson, Acting Assistant Secretary of the Harmonisation and Regulatory Strategy Branch.

Before we start I’d like to let you know that we are recording this webinar so it can be shared to those who are unable to join us today. It will also be available on the Department’s website in coming weeks.

I’d like to begin by acknowledging the traditional custodians of the lands on which we are virtually meeting today. We are based in Canberra on the lands of the Ngunnawal people and we recognise any other people or families with connection to the lands of the ACT region. I wish to acknowledge and respect their continuing culture and the contribution they make to the life of this city and region. I would also like to acknowledge any other Aboriginal and Torres Strait Islander people who may be attending today’s event.

[Visual of slide with text saying ‘Australian Government with Crest (logo)’, ‘Department of Health and Aged Care’, ‘Foundations of the new Aged Care Act’, ‘Amy Laffan’, ‘First Assistant Secretary’, ‘Quality and Assurance Division’, ‘agedcareengagement.health.gov.au’, ’10 August 2023’]

So this webinar forms our first stage of public consultation on the new Aged Care Act which will help us finalise an Exposure Draft of the Bill for a new Act. We have released a Consultation Paper, A New Aged Care Act, the Foundations Consultation Paper Number 1, and are seeking your feedback by the 8th of September. Our second stage of public consultations will include releasing the draft Bill for your feedback.

I encourage you to visit the Aged Care Engagement Hub to read the full Paper or summary fact sheets if you haven’t already. You can submit your feedback, respond to a survey and register for some workshops being run over the coming weeks by the Council of the Ageing and the Older Persons Advocacy Network. We’ll put the link in the chat now in case anyone has to leave early and we’ll also share on screen at the end of the webinar.

For our webinar today there is no option to turn on your video or microphone to ask questions. Instead please post your questions in the Slido box on the right side panel of your screen. Questions submitted during the registration process will also be considered for the Q&A session. Any questions we don’t get to today we’ll compile and post them as part of our frequently updated questions on the consultation page in the coming weeks. During this webinar live captioning will also be available. Please click the link in Slido to access the live captioning.

I’d now like to introduce Mel Metz who’ll be providing more detail on the foundations of the new Aged Care Act.

Mel Metz:

[Visual of slide with text saying ‘Mel Metz’, ‘Assistant Secretary, Legislative Reform Branch’, ‘Overview of the new Act’, ‘Statement of rights’, ‘Statement of principles’, ‘High Quality care’, ‘Eligibility’]

Hi everyone. Thanks and good afternoon. My name is Mel Metz and I’m the Assistant Secretary of the Legislative Reform Branch. Thanks everyone for taking the time to join the webinar today to hear about our work on the new Aged Care Act.

As you know the Royal Commission report set out a path for us to follow to improve the aged care system. The first stage of the new Aged Care Act is going to underpin delivery of 29 of the Royal Commission’s recommendations and aspects of a further four. For the broader aged care reforms to be successful we require legislation that ensures the aged care system articulates the rights of older people and facilitates access to the services they need. Our hope is that the whole system is going to operate in line with the proposed purpose, objects and principles that I’m going to talk to you about today.

We are designing the new Act to shift the culture of aged care. The rights of older people are going to be the centrepiece and everyone involved in aged care, the Department, the Aged Care Quality and Safety Commission, providers, workers, older people and their families and carers will all have a role in furthering and upholding those rights.

The new Act and rules that accompany the Act are going to replace the entire existing aged care legislative framework. It’s going to include a Statement of Rights and pathways for people to have their rights upheld. It will create a single entry point to the aged care system with clear eligibility requirements and a fair culturally appropriate single assessment process. It will support the delivery of a range of aged care services including in-home care services, put in place new system oversight and accountability arrangements and introduce a new approach to regulating aged care which will encourage delivery of high quality care and strengthen the powers of the Commission.

The new Act is going to have a different constitutional basis to the current Act which will ensure a strong foundation and a focus on the people who need aged care services. We’re going to principally rely on the external affairs power specifically the Convention on the Rights of Persons with Disabilities and the International Covenant on Economic, Social and Cultural Rights. Practically this means that the legislation will be focused on the needs of older people accessing or seeking access to aged care services and a wider range of businesses and individuals not just those who are corporations within the meaning of the Constitution will be able to deliver funded aged care services. Our goal is to support new aged care providers to enter the sector. The result we hope will be increased choice for older people between providers and increased services in locations where aged care services might currently be limited.

The Objects of the new Act will outline the overarching purposes of the legislation. They will assist the courts and others to interpret the new Act. The final wording of the Objects will be settled once the draft Bill is finalised so that they capture the scope of the new Act and are consistent with the provisions. However we’ve provided a draft version in the Consultation Paper so that we can get your initial views.

Broadly the Objects will cover reference to the relevant international conventions, the intention of the legislation to assist older people to live meaningful lives and promote positive attitudes to older people and ageing, equitable access to aged care services based on need, choice for older people about who delivers services, how they are delivered and when, protecting older people from neglect, mistreatment and harm when being provided with aged care services, education and advocacy and promoting innovation and improvement in aged care.

The Royal Commission suggested that alongside the Objects there be a clear, plain English explanation of the purpose of the new Act. We think this is a good idea and propose to include a purpose statement in the Act. That purpose is to facilitate access by older people to quality and safe funded aged care services based on their individual needs with the aim of assisting them to continue to live active, self-determined and meaningful lives as they age. This means that the Act should provide access to funded aged care services for people based on their individual needs. The services should assist people to maintain their independence as they age and address age related deterioration to the best extent possible.

We agree with the Royal Commission that the aged care system should support older people to maintain their quality of life and allow them to continue living their lives independently for as long as possible. We welcome your views on whether you think a purpose statement is a good idea and what it should cover.

We understand that embedding the rights of older people in the new Act is very important. We heard that very strongly from the Royal Commission and we’ve heard that from many stakeholders too. I wanted to spend some time today talking about what a rights-based approach means in practice. We want to make sure that it’s more than a written statement at the front of the Act. We know it needs to be more than symbolic and that it needs practical application. The Statement of Rights will outline the specific rights of people accessing or seeking access to funded aged care services.

The proposed rights are displayed here and on the next slide with 16 rights proposed in total. These draft rights are drawn from the wording suggested by the Royal Commission as well as the Charter of Rights. The rights on this slide cover choice and decision making even where that involves personal risk, equitable access to needs assessments, choice between the services that a person is assessed as needing and how those services are provided, communicating in preferred language, being treated with dignity and respect and being informed about the services being delivered, freedom from abuse, neglect and mistreatment, safe, fair, equitable and non-discriminatory treatment when accessing services and freedom from inappropriate use of restrictive practices.

The remaining rights on this slide cover equitable access to palliative and end of life care, the ability to make complaints without fear of reprisal, valuing identity, culture and diversity, personal privacy and access to information, respecting the role of significant people in the person’s life and access to advocacy and the right to stay connected with friends and family including the right to have visitors at reasonable times in residential aged care. We have made changes and additions to the wording to reflect early discussions on the draft rights with the Council of Elders, the National Aged Care Advisory Council and the Expert Advisory Panel on Legislation and Regulation.

The rights are so critical to the cultural shift that we are trying to achieve so we would really value your input to make sure they are comprehensive and clear and reflect what older people should expect when they are receiving aged care services.

I mentioned earlier that rights will not just be symbolic. In the new Act pathways will be available to uphold the rights that we legislate. It’s important to note that there won’t be one linear pathway for every breach of a person’s right. The pathway which leads to an outcome will depend on the nature of the breach and the best way to rectify it. Really importantly that will not always be a penalty for a provider. It might be a changed process or policy, it might be an apology, it might be an offer of monetary compensation or it might be strong regulatory action by the Commission.

The first step when an older person or someone connected to them considers someone’s rights have been breached will be to raise this with the registered provider. Providers will be required to have complaints management processes in place. We heard very strongly from the Council of Elders that early informal resolution at the service level is the preferred outcome for many issues that arise. A complaint will also be able to be made directly or escalated to the Commission. The Complaints Commissioner will manage revised complaints processes which will focus on early intervention and restorative outcomes.

Some breaches will also be inconsistent with provider obligations. In those cases the Commission will be able to respond in a range of ways depending on the severity of what has occurred. This will include strong enforcement action where that’s appropriate. The intention is also that the rights flow through the provisions of the new legislation. We’re going to give the rights practical meaning through the rights-based legislative framework, mechanisms to empower older people, clear rights and obligations on registered providers and aged care workers and the new regulatory model which has been consulted on separately and Cathy will update you on shortly.

Our vision for a rights-based legislative framework means that the constitutional basis will provide a connection to the relevant international conventions. There will be independent system oversight with the Inspector-General and independent Aged Care Quality and Safety Commission as the regulator. It will also provide for fairness and transparency enabling equitable access to a single assessment framework. The new Act will aim to empower older people, respecting their rights to make decisions about the delivery of services they access and how they live their lives. It will provide for new nominee and supported decision making arrangements, implement a new information management framework providing increased system transparency and protecting personal information, it will provide for a new complaints management framework including protections for whistleblowers and protection against retribution for making a complaint which Naomi will also cover. And it will provide support and funding for advocacy to ensure the voices of older people are heard.

The new Act will be clear on the obligations on registered providers and aged care workers. It will specify that registered providers, responsible persons and aged care workers are expected to act consistently with the Statement of Rights and have practices in place to uphold the rights of older people. This includes demonstrating a commitment and capability to continuous improvement. The new Act will include a Code of Conduct that says funded aged care services must be free from all forms of violence, discrimination, exploitation, neglect and abuse and it will be clear that all quality standards centre around consumer dignity and choice.

The new Act will also uphold rights through a new risk-based regulatory framework. This includes additional powers for the regulator including criminal penalties for severe breaches of duty and additional civil penalties, a new Complaints Commissioner, a new statutory duty of care which Cathy will provide an overview of and access to compensation which Cathy will also discuss.

I would now like to talk about the Statement of Principles. It was recommended by the Royal Commission that a Statement of Principles be included in the new Act complementary to the Statement of Rights. Both rights and principles will play an important role in driving cultural change. The Statement of Rights sets out what people accessing or seeking access to the aged care system should expect. The Statement of Principles on the other hand will guide the decisions, actions and behaviours of those responsible for operating the system, for example providers, the Department and the Commission.

The Statement of Principles is designed to be consistent with the objects and purpose of the new Act that I spoke about earlier. The Statement of Principles is designed to reinforce the person-centred nature of the new aged care system and legislative framework so all the actors in the system treat each person as an individual with rights and unique needs. Draft principles are included in the Consultation Paper and related fact sheet so you can read them in detail and provide us with feedback about what they cover and how they’re worded. We are also keen for your feedback about any important principles that you think are missing.

To provide a brief summary the principles focus on three key areas. The first four are person focused. The next eight are system focused and outline how we expect aged care to operate at a system level, and the last three are governance focused ensuring that the Act also outlines what we expect to see from the Department and the Commission.

Consistent with the Royal Commission’s vision for the aged care sector to aim higher and not just focus on the minimum standards the new Act will include a definition of high quality care. We sought feedback on the proposed definition of high quality care as part of the consultation on the new regulatory framework. We’ve included it again in the new Act Consultation Paper so you can consider the key foundations of the new Act together. The proposed definition is displayed on this slide. As you will see it draws on the definition suggested by the Royal Commission with some amendments. The intention is that the definition will focus on the characteristics of care as opposed to the specific outcomes. It won’t be something that a provider meets or doesn’t meet. It will be something that providers could work towards over time. Importantly this approach will enable the concept of high quality care to grow over time in response to community expectations. It will also differentiate the concept of high quality care from the standard delivery of quality and aged care services in line with any minimum legislative requirements.

We know that simply defining high quality care won’t be enough to achieve high quality care. We also know that no single measure or legislative reform will achieve this outcome. All of the elements of regulation, effective governance and stewardship will need to work together to drive the system towards high standards and the new regulatory model will form a key feature of the new Act and will be critical in this regard.

The next component I would like to speak about is the eligibility requirements for funded aged care services. We are looking to achieve a single entry point into a streamlined system with common eligibility requirements and a single assessment framework for all Commonwealth funded aged care services. This will reflect the person-centred approach of the new Act and align with the Royal Commission’s recommendations.

The current arrangements are complex and inconsistent. There’s no simple or logical sequence to enter aged care and there are multiple programs and services with different eligibility requirements. The Royal Commission spoke of how time consuming, overwhelming and intimidating it is for many people trying to enter the system. We also note the Government has committed to reaching the target that no person under the age of 65 should live in residential aged care from the 1st of January 2025.

The intention is that the new Act will provide a common entry point for access to funded aged care services. The aim is to achieve a simple entry point to aged care in the new Act and limit the need for older people to tell their story on repeat occasions. Key benefits to this approach include a single application process for all funded aged care services, a common set of eligibility requirements for all aged care programs, no need for eligibility to be reassessed for different programs, transparent requirements with a delegate to decide whether a person is eligible for a needs assessment – and I note that this will be a reviewable decision – and streamlined evidentiary requirements for certain referral pathways for example referral from a medical perspective.

All individuals seeking access would have to meet certain threshold eligibility requirements irrespective of the type of services they might require access to. Everyone seeking access to aged care under the new Act will need to make an application, show that they have some need for aged care services and participate in an individual needs assessment which will lead to a decision about whether they can fund aged care services, which services and when.

That is all from me today. Thank you very much for listening. If you have any questions please put them in the Slido box and I will answer them at the end of the webinar. I’ll now hand over to our next speaker Cathy Milfull who’ll provide an update on the regulatory framework and an overview of the proposed duty and compensation pathways under the new Act.

Cathy Milfull:

[Visual of slide with text saying ‘Cathy Milfull’, ‘Director, New Aged Care Framework Development Section’, ‘Regulatory framework update’, ‘Statutory duty’, ‘Compensation pathways’]

Thanks for that Mel and hi everyone. My name’s Cathy Milfull and I’m one of the Directors in Mel’s Legislative Reform Branch together with Naomi who will speak next and our team. I’m responsible for coordinating development of the Bill for the new Aged Care Act and for helping to draft its provisions.

So today I’ll be talking to you about two initiatives that we propose to include in the Bill. That is a new statutory duty of care firstly and then a related compensation pathway. These will deliver on election commitments made by the Government as well as responding to a number of outstanding Royal Commission recommendations. But I think it’s important to recognise that these initiatives will also form part of the broader new regulatory model which Mel has mentioned to you and will be a key feature of the new Act.

So before we get to the duty I just want to give you a brief update on the proposed new regulatory model and confirm how this fits together with what we are discussing today.

So the diagram on this slide really just summarises some of the key features of the proposed new and improved framework for regulating aged care. This framework aims to ensure that aged care providers always deliver quality and safe aged care services but also we want them to aim higher and strive to deliver high quality care, a term Mel has just outlined for you. It will be a rights-based framework with the Statement of Rights that Mel has discussed sitting at the top of the regulatory model and it will include pathways to have these rights upheld. It will also be risk proportionate and focused on the health and safety of older people consistent with our proposed Statement of Principles.

As reflected on this slide the new regulatory model will also place clear responsibilities on registered providers and ensure that they can be held accountable where they deliver substandard care. So this is really where the duty that I will talk to you about fits into this picture with the duty enabling the Commission to take substantive action in severe cases against providers who put older people in harm’s way. But just before I do on behalf of the Department I was keen to say thank you again to everyone who has provided feedback on the new regulatory model to date. The last round of public consultation was completed in June with more than 80 written submissions received as well as hundreds of responses to our surveys. This feedback will be used to refine the framework prior to finalisation of the Bill for the new Act. Generally I’m pleased to say the feedback has been positive but all feedback is very much appreciated as it will help us make sure that the new model is as effective as possible.

So moving now on to the duty itself. A new overarching duty as you can see here to protect older people is being considered for inclusion in the new Act. This new duty would be modelled on the existing work health and safety duty as recommended by the Royal Commission. Importantly it would complement not displace this and other existing duties under state and territory legislation or common law. The new duty would place a clear expectation on registered providers to ensure that they do not adversely affect the health and safety of persons in their care.

But just a couple of important things to note. So firstly as reflected in the proposed wording you can see on this slide this requirement is not absolute. This is because it’s important that this duty does not negatively impact on the ability of older people in care to make their own choices even where these choices involve personal risk. Secondly not all conduct that’s inconsistent with this duty is intended to amount to a breach of a duty under the Act. The intention is to focus on serious failures to act in a manner consistent with the duty. This is appropriate given the other risk proportionate regulatory tools available to the Commission. As I’ll discuss shortly criminal penalties will also attach to serious breaches of a duty with a compensation pathway also available in some circumstances.

So if you look at the diagram on this slide it just gives you a visual on how the penalties for breach of a duty would sit within the context of the new regulatory model that I’ve just updated you on. You can see that it’s proposed that civil penalties may apply where a registered provider breaches a condition on their registration. Higher level civil penalties would then also be available where a provider does this repeatedly, so where they demonstrate that they simply have no capability or commitment to improve their delivery of services.

If you look then at the bottom of the first triangle you can see that criminal offences could attach to serious breaches of a statutory duty. By that we mean breaches which result in the actual or risk of death, serious illness or injury to an older person in their care. Higher penalties may also be sought where the registered provider’s actions are considered to be reckless.

As reflected on this slide and committed to by the Government the intention that where a provider is found guilty of an offence for breach of a duty of care a new compensation pathway would also be available. The nature and scope of this pathway is still under consideration but it’s likely to involve a person seriously harmed by the action of a registered provider or actually the Commission on their behalf seeking a compensation order from a court. This is not the only way that a person can access compensation where harmed by a provider’s poor performance as is reflected on this slide but it would be a specific new legal pathway available in serious cases where clear harm has resulted.

So onto the final slide for this topic. This really asks some questions whether in addition to the duty on registered providers that I’ve just been talking to you about should there be any similar duties on other individuals or entities in the aged care sector. No decision has been made on this yet but we’re really keen to get your early feedback on whether this has merit. So to inform your feedback I’ll just highlight quickly what we are considering in this context.

So you can see on the slide there the three possible additional duties. Firstly a duty on responsible persons potentially to exercise due diligence and ensure that registered providers comply with the statutory duty that I’ve just been talking to you about. This would be consistent with the Royal Commission’s vision of more accountability being placed on management and board members of registered providers. It would recognise that these people have the potential to strongly influence the culture and accountability of those providers. They can also influence important decisions about resources and on workplace policies.

Secondly a duty on aged care workers. So this could be to take reasonable care that their actions do not adversely affect the health and safety of the individuals they provide care to and/or to comply with reasonable instructions and directions from their provider. The Royal Commission did not recommend this as they felt there was sufficient regulatory coverage of workers already as they already have duties under work health and safety legislation plus they may have limited decision making power in the workplace. But we’re really interested to hear your views on this noting that actions of aged care workers can have a direct impact on the health and safety of older people in their care.

So lastly as suggested by the Royal Commission you can see we’re considering whether there should be a different type of duty imposed on organisations who link up older people with aged care providers and workers usually via new digital platforms. In this scenario should these organisations be required to ensure workers and providers advertised on their platform are for example screened or registered or do you think they should have any other responsibilities under aged care law specifically? So we’d really welcome your thoughts and feedback on these additional duties to inform our policy thinking and the development of the Bill.

So thanks everyone. That’s really it from me for now but I’m going to hand over to Naomi who will be speaking about new whistleblower protections and also principles for supported decision making under the new Act.

Naomi Lavithis:

[Visual of slide with text saying ‘Naomi Lavithis’, ‘Director, New Aged Care Framework Development Section’, ‘Whistleblower protections’, ‘Supported decision-making’]

Thanks Cathy and hi everyone. My name is Naomi Lavithis and I am also a Director in Mel’s Legislative Reform Branch alongside Cathy responsible for coordinating the development of the Bill for the new Act.

Today I want to talk to you about whistleblower protections under the new Act including how they will be different and apply more broadly in the aged care system. I also want to speak about how we are looking to embed supported decision making for older people under the new Act.

Royal Commission stated in its final report that fear of reprisal may deter older people and aged care workers from making complaints about a provider. This contributes to driving the disconnect between the experiences of older people and the legislative framework that should be there to protect them. Under the current Aged Care Act whistleblower protections are limited to disclosure of information about reportable incidents under the Serious Incident Response Scheme.

While recent amendments to the Act extended the scope of the scheme to include aged care services delivered in home and community settings it is still a narrow approach as it only protects people making disclosures in a specific circumstance restricting the voice and rights of older people. The new Act will broaden whistleblower protections to be similar to protections under the National Disability Insurance Scheme Act and those under the Corporations Act. This will expand the range of people who will be able to make a disclosure to include employees of registered providers paid or unpaid, responsible and governing persons of registered providers, older persons accessing funded aged care services and those close to older persons such as carers, family members and advocates.

As you can see from the diagram disclosures about contraventions of aged care legislation will be able to be made to various officials including the Commission or the Department, employees of registered providers paid or unpaid, responsible and governing persons of registered providers, police officers or anyone else authorised to receive that information.

This approach intends to empower people to disclose where they think there might be a breach of legislation without fear of repercussions. This is important for protecting the safety of older people and it’s also intended to enable the identification of events before they become reportable incidents.

A person making a disclosure will need to have reasonable grounds to suspect that a provider worker responsible or governing person has or may have breached legislation and the disclosure must be made in good faith.

Next I’d like to talk you through the protections available to whistleblowers. When a person makes a qualifying disclosure they will be protected from a range of consequences like civil, criminal and administrative liability. For example if an aged care worker makes a qualifying disclosure their employer would be unable to fire them or sue them for breach of contract or confidentiality.

We also propose to retain the current protections against victimisation. This means that any person who is victimised due to the whistleblower’s disclosure will be protected. For example if an older person’s family member makes a disclosure on their behalf and it is the older person who suffers consequences as a result the older person will have protection against that victimisation. The new Act will provide that it would be a civil offence to engage in conduct that causes detriment or even threatens to cause detriment to a person because of their or another person’s disclosure.

The new Act will also include an obligation for registered providers to have internal whistleblower policy which will provide guidance for both potential whistleblowers and people authorised to receive disclosures. This obligation may include requirements around publicising the way in which a person can make a disclosure and how to do so in a way that meets the protection requirements that I’ve just discussed, training and education requirements for staff of registered providers who may receive disclosures and appropriate processes for handling disclosed information including escalation to the Department or the Commission as appropriate.

I will now turn to supported decision making under the new Act. As has been described in the other elements spoken about today we are taking a rights-based approach in developing the new Act. Supported decision making will form part of a broader empowerment approach for older people by making the rights of autonomy and self-determination, the presumption of legal capacity and the rights for an older person to make decisions about their care paramount. This is in line with the recommendations of the Royal Commission. The new Act is an opportunity to ensure the role of legal nominees and the responsibilities relating to supported decision making more clarified.

Currently there are inconsistent references to legal representatives, representatives and nominated representatives throughout the aged care system. Existing legal arrangements do not explain the processes for appointment or make it clear where a nominee should be involved rather than the older person themselves. Currently My Aged Care has administrative but not legislative arrangements that allow for the appointment of a nominee on an older person’s behalf. These arrangements are summarised on the slide. Unfortunately though without a clear process or legislative basis for the appointment of a nominee the system remains limited. The new Act will recognise that there may be circumstances where it is necessary for a person to be appointed as a nominee of an older person to either support that person to make decisions or to make the decisions on their behalf. These arrangements will better align with the NDIS Act.

I will now step through the criteria for the appointment of a nominee. Firstly it is proposed that there will be both supporter and representative nominees. An older person will be able to have either but they will not be able to have both types of nominees at one time. Drawing from the existing NDIS model a nominee may be appointed at the older person’s request or by a delegate of the Secretary of the Department. In both cases the delegate has to consider the wishes of the older person, ensure the nominee has provided consent to fulfil the role, is satisfied that the nominee would be able to fulfil the duties and have regard to whether there is an existing representative person under Commonwealth, state or territory law who has guardianship of the older person or whether there is a person appointed by a court who has power to make decisions for the older person.

I will now outline the roles of the different types of nominees. The proposed supporter will be similar to the current My Aged Care agent arrangements. Having a supporter identified to an appointment will ensure registered providers and the Department are aware that there is someone who is trusted by the older person, who’s aware of their circumstances and can be called in to assist the older person if required. A supporter would be able to support the older person to navigate the aged care system but they would not have the authority to make any decisions on the older person’s behalf. The supporter with the consent of the older person would be able to receive duplicate correspondence and be able to assist the older person to communicate their own decisions where appropriate.

Proposed representative will be modelled on the existing My Aged Care authorised and regular representative arrangements. It’s proposed that a representative can do any act that may be done by the older person including making decisions on their behalf.

I will now discuss duties of the nominees and embedded supporting decision making principles into the new Act. The new Act will set out duties and principles for each type of nominee. These duties will be designed to reinforce the principle that older people should be presumed to have the capacity to make decisions for themselves or be assisted in their decision making. The new Act will include a specific duty for representative nominees to refrain from doing an act or making a decision on a person’s behalf unless they’re satisfied it’s not possible for the person to do so themselves or to be supported to do so, or it’s possible for the person to do the act or make the decision but they want the representative to make that decision on their behalf.

The new Act will lay out clear decision making principles the representative must comply with in the last resort circumstances where they need to make a decision or act on a person’s behalf. These are that they must ensure the older person’s will and preferences are given effect and where these cannot be determined the representative must give effect to what the older person would likely want based on all of the information available such as consulting with the person’s close family or friends. If this isn’t possible the representative must act to promote and uphold the person’s human rights and act in a way that is least restrictive of those rights.

That’s all from me. Thanks again everyone for listening. I’m more than happy to answer any questions alongside our other presenters. I’ll now hand back to Amy.

Amy Laffan:

Great. Thanks Naomi. And that concludes our presentations for today. Before we start our Q&A I just wanted to quickly discuss medication management and clarify an issue that’s come up recently. Medication management for residents is the responsibility of aged care homes. Medication management is part of the schedule of specified care and services and is reflected in the Australian National Aged Care Classification, AN-ACC funding paid to aged care providers. Aged care homes can enter into commercial arrangements with pharmacy for medication packaging services but this cost cannot be passed on to the care recipient either directly or indirectly.

The Department of Health and Aged Care and the Aged Care Quality and Safety Commission have written to aged care providers reminding them of their responsibilities including that they cannot pass these costs onto their residents. As well as writing to residential aged care providers the Department is engaging with consumer and provider peaks, pharmacy and GP peaks to ensure older people, their doctors and their pharmacists understand the rights of aged care home residents to receive medication management services at no extra charge.

The Commission, the national regulator of aged care services is responsible for monitoring providers’ performance against the Aged Care Quality Standards including the schedule of specified care and services. Where the Commission identifies non-compliance it will take regulatory action which depending on the extent of non-compliance may involve enforcement action. The Department will provide further information shortly about this on our website. As the resident of an aged care home if you think you have been wrongfully charged you can contact OPAN on 1800 700 600 to be connected to your local advocate.

Okay. So we’ll now start the Q&A session. And a quick reminder that you can submit a question through Slido Q&A function on the right hand side of your screen. Just type in your question and hit ‘Enter’. And while we may not be able to answer all of your questions today we will aim to provide responses on our FAQ section on the New Aged Care Act Consultation page.

Right. So let’s get to our first question. And I wonder if this one’s for you Cathy.

Q:        Considering the new Act will be human rights focused what consideration will be given to special needs/priority groups?

Cathy Milfull:

Thanks Amy and thanks everyone for the question. I think the important thing to say here first is that the intention is for the new Act to place all older people with all their many and diverse needs at the centre of the new aged care system. So as reflected in the draft Objects and Principles that Mel’s taken you through the new Act will aim to ensure that older people including people of diverse backgrounds and needs have equitable access to and culturally appropriate funded aged care services that actually consider their individual needs.

One of the things we haven’t mentioned though yet is that it’s also intended that the new Act specify that one of the system governor or the Secretary of the Department’s functions will actually be to consider older people with diverse backgrounds and needs including particular priority groups when developing policy and administering the aged care system. So this could include but not limited to particular groups that are already called out in the current Aged Care Act and are also listed in the draft principles in our Discussion Paper. So just for example First Nations people, people from culturally and linguistically diverse backgrounds etcetera. But we’d really welcome your further feedback on these matters to check that we’re representing them correctly in the new Bill. Thanks Amy.

Amy Laffan:

Thanks. So kind of linked to that, and maybe Naomi you can help out here, is about the term ‘Special needs group’ and whether that can be changed. There is some feedback that it’s considered by some people to be offensive.

Naomi Lavithis:

Thanks Amy. We have received this feedback previously and we don’t actually intend to use that language in the new Act. Instead and as Cathy’s alluded to we intend to use more inclusive language focusing on all older persons including those with diverse backgrounds and with diverse characteristics. We welcome ongoing feedback though about the terminology that we do intend to use in the Bill but where appropriate we’re trying to use active and inclusive language noting that there are some occasions where it might be necessary to use more neutral language such as when we’re referring to people as individuals. But yes very much welcome further feedback but we are getting rid of that term, or that’s the plan anyway.

Amy Laffan:

Thanks Naomi. Mel one for you.

Q:        What measures will be taken to ensure the new Act is accessible and inclusive of multicultural communities?

Mel Metz:

Thanks Amy. It’s really important that the new legislation is responsive to the needs of all older people. And to ensure that that happens some of our initial consultations have been with the Federation of Ethnic Community Councils of Australia, FECCA, who provide a strong voice advocating for older people from culturally and linguistically diverse backgrounds. And we’ve also been consulting with the National Aboriginal and Torres Strait Islander Ageing and Aged Care Council Board to test some of the policies that will be reflected in the new Aged Care Act. We’d really like to hear from multicultural communities through this consultation process to make sure that the Act is accessible and inclusive of multicultural communities.

Amy Laffan:

Thanks. Another question here says:

Q:        Is there a proposal for residents of aged care to have direct access to a tribunal remedy for breaches of the Charter of Aged Care Rights?

Cathy I guess part of this is that the Charter won’t necessarily exist anymore but will be replaced by the Statement of Rights?

You’re just on mute.

Cathy Milfull:

Sorry. The Charter that currently sits in subordinate legislation is being replaced because we’ll have the new Statement of Rights being really the centrepiece of the new Act. So it’s good to clarify that I think first. It’s also intended that the new Act as we’ve discussed will provide pathways for older people where they feel those rights have been breached. This is not at this stage however going to comprise of direct access to a tribunal for an individual breach of one of those rights that’s been suggested in the question and that’s really because I think as Mel reiterated earlier what we’re hearing is that early intervention is really the best outcome in these situations. We don’t want older people to have to go and litigate or spend lengthy time with courts and tribunals where possible. We’d like them to be able to raise the matter with their registered provider. If that doesn’t work or if they prefer with the Commission and try and get their issues resolved quickly.

So we’re not having that sort of direct tribunal link but there are stronger regulatory powers for the Commission to take action in those serious cases as we’ve discussed and as I went through in my presentation there’s that new compensation pathway where people could actually directly seek a court order for compensation where they’ve been seriously harmed as well.

Amy Laffan:

Thanks Cathy. Looks like a bit of a constitutional law type question next. So I might ask you this Mel.

Q:        How will international human rights law and in particular the International Convention on the Rights of Persons with Disabilities underpin the new legislation considering human rights actors have confirmed its applicability to the aged care context and especially Article 19?

Mel Metz:

Thanks Amy. You know I love a constitutional law question. So I did talk about the constitutional foundations of the new Act in my presentation. What’s really important about that is that that doesn’t just sit in the background of the legislation. It’s built into the way that the new aged care system is going to work. And critical to that is the assessment process which will be determining an older person’s needs. And that assessor is going to have to consider what that person’s needs are and how that achieves the objectives of the International Convention. So it might not be obvious that that’s what’s happening during the assessment process but that’s really how the Constitution and the constitutional requirements are being built into the legislation. So for example the needs assessor will need to consider if a service is necessary to support a person to live and be included in the community.

Amy Laffan:

Thanks. Maybe another one for you here. Here’s a question that’s been upvoted 39 times so a popular question.

Q:        We’ve noticed increasing aggression to our staff by consumers’ families when they aren’t able to obtain everything they want under their package, so for example an aid which is preferred but not supported for safety reasons. How can we write the Act to encourage mutual respect?

Mel Metz:

Yeah. That’s a really excellent question and I think I’ll start my response by just noting that no rights are absolute. So we will include rights of older people in the legislation but they are not absolute rights. So I think that’s really an important thing to remember and also that type of aggression is not acceptable under any circumstances. So I think we will ensure that it’s clear that the rights exist but have to be balanced against the rights of others, so for example the rights of other residents in residential aged care. But I think the answer to that is not entirely legislative. So outside of the legislative framework it’s really important that we drive a culture of mutual respect among providers and older people. And I think starting the conversation about how we achieve that is really important. So we’d like to hear from people if they’ve got ideas about what we might be able to legislate to achieve mutual respect. Please put that forward in your survey responses or your submissions in relation to our Consultation Paper.

Amy Laffan:

Great. Thanks Mel. Might give this one to you Cathy.

Q:        Are there any changes to younger persons’ access to Commonwealth funded aged care services proposed under the new Act?

Cathy Milfull:

Thanks Amy. Yeah. So on this one as Mel flagged earlier it is the intention that access to the system for individuals aged under 65 be quite limited and controlled and that’s consistent with the findings of the Royal Commission and targets relating to residential aged care that have been agreed to by Government. So what you’ll see is that they’re only specific cohorts of people under 65 who would be able to access funded aged care services under the new Act. So specifically that’s people who are 50 to 64 years of age and either are a First Nations person or someone who’s homeless or at risk of homelessness.

In addition if you’re in that cohort before you enter the system we also want to make sure that you’ve just been informed of alternative options available to meet your needs and you still want to proceed. So that’s not like a blocker but it’s just to make sure people have had those discussions and if things like NDIS for example are available then they discuss that and consider those options. So this does mean that no other younger people will be able to access funded aged care services and we think this is important as it will really help ensure the aged care system is not used inappropriately to address service gaps and it will make sure people are actually getting the best available care to meet their individual needs. But I do think it’s important. As you’ll see in the Consultation Paper the Department is intending to work with other Commonwealth agencies and state and territory Governments in the lead up to the commencement of the Act because we of course want to make sure those younger people are able to access alternative services that do meet their needs.

Amy Laffan:

Thanks Cathy. I might just stay with you and ask a question about transition care.

Q:        Will the changes to the Act affect the eligibility for transition care program?

Cathy Milfull:

Sure. Thanks Amy. So I think as Mel also mentioned the plan is to have this new common entry point for the Aged Care Act with common eligibility criteria across all our programs, so whether it’s transition care, NATSIFAC, MPS. So that means that everyone has to meet those same initial eligibility criteria. So those new age limits that we were just talking about will also apply to the transition care program. But other TCP eligibility settings I can confirm are not expected to change. So it’s really just that age limit.

Amy Laffan:

Great. And Jessica thanks for coming along today. We have a question for you.

Q:        Will the new Act and standards align with NDIS so that residential aged care facilities do not have to complete two lines of accreditation?

Jessica Robinson:

Thanks for having me Amy. So the new regulatory model for aged care is also being designed to improve and move closer to harmonisation across the care sector while we’re still recognising that things will need to be different based on the varied care contexts. So in terms of the new Act we’re looking to align with the NDIS Act where there’s opportunity to do so. So where possible we’re also seeking to future proof this new framework as much as possible to facilitate and reduce duplication across registration, compliance requirements and increase harmonisation as much as possible without further amendments being required to the Act in future.

Amy Laffan:

Thanks. And while I’ve got you I might just ask a question related to MPSs.

Q:        With MPSs, so multipurpose services, moving further under aged care regulation and accreditation it would be useful to ensure there isn’t duplication of accreditation requirements. Will the harmonisation work include harmonisation with the National Health Standards for example?

Jessica Robinson:

Yeah. So the new regulatory framework aims to avoid duplication for some of these aged care service types, providers and workers who are subject of regulatory frameworks including across the health space. So it’s intended that a new MPS aged care module will be developed to reflect the new quality standards and thereby reduce the compliance burdens for MPS providers who are delivering Commonwealth funded aged care services. As we’ve been discussing via the MPS working groups we’re really keen to work more closely with states and territory Government agencies to further consider arrangements in this space and ensure that there are no gaps in regulation falling between aged care and the health sectors and also make sure that the new framework doesn’t place any additional or unnecessary burden on those providers.

Amy Laffan:

Thanks. And another MPS question but I think I might hand this one to you Cathy.

Q:        How will the current flexibility to deliver aged care services as residential or in-home care from MPSs be maintained in the new Act?

Cathy Milfull:

Thanks Amy. Look I can confirm that we understand that that’s a really important feature of the MPS program and so we’ve got no intention to remove that under the new Act and will certainly be confirming and making sure that’s the case as drafting of the Bill moves forward. But basically I guess ensure that MPS providers will still need to register as a provider as all other providers will and they’ll need to register in a category based on the types of services that they deliver. So essentially if they are an MPS provider who wants to deliver both residential and home care for example they may just need to register in a number of categories to reflect the extension of the services that they wish to provide.

Amy Laffan:

And I mean what about how the NATSIFAC program will be treated under the Act?

Q:        So will that be under the Act and if yes will current Aboriginal and Torres Strait Islander providers no matter where they’re located remain on NATSIFAC funding?

Cathy Milfull:

Thanks Amy. So I think that’s a good one to clarify because we do get quite a few questions around this at the moment. So NATSIFAC is currently of course administered outside the existing Aged Care Act but the intention is to bring it inside the Act, the new Act. But I guess I can reassure people that providers who have an agreement to deliver services under the NATSIFAC program the intention is that they continue to be funded by specialised block funding arrangements. What is though going to sort of change over time from a legislative perspective is that we’re intending that those funding arrangements move from basically being if you like funded by grant agreements to subsidy arrangements and that will reduce a lot of administrative complexity both for the Department but also for those providers. So really it’s about the timing of that transition and that will depend on drafting progress, also how long existing grant agreements that we’ve got in place are for and further consultation with providers in the sector which will be happening in the lead up to the new Act.

Amy Laffan:

Thanks Cathy. And I note we’re running really close to time so I’ll just ask one more question and this one’s for you Naomi and that is:

Q:        How will you capture and ensure consent?

Naomi Lavithis:

Thanks Amy. The new nominee framework prioritises supporting older people to exercise control over their own lives. So at the time of appointing a nominee consent must be provided by both the older person and the nominee and that consent must be recorded in the system. So for example currently there’s a consent checkbox in the My Aged Care system. The only exception to this is where the older person does not have capacity to consent which is where evidence would be required to appoint a representative on their behalf. And so I guess ensuring that nominees are legally recognised and appointed to support older people in understanding the care they receive and making their own decisions will ensure that they can properly consent to and make informed decisions about their own lives.

Amy Laffan:

Thanks Naomi. And we’ve just hit three o’clock so I think that brings us to the end of our time together. As mentioned before we would welcome any further feedback on the Consultation Paper Number 1 by Friday the 8th of September. The link to the Aged Care Engagement Hub Consultation page is back up on screen where you can find the Paper and additional details.

Also on the screen is a link to the registration page for a series of workshops being run over the coming weeks by the Council on the Ageing and the Older Persons Advocacy Network. These forums will be held around the country and will give you an opportunity to provide your feedback face to face.

When the webinar finishes a short survey will pop up on your browser. It takes one minute to answer three questions and we would really appreciate it if you could take a moment to help us improve our webinars.

So I hope you found today valuable. Thanks again for joining us. Take care and bye for now.

[Closing visual of slide with text saying ‘agedcareegnagement.health.gov.au’, ‘Phone 1800 200 422 (My Aged Care’s free call phone line)’]

[End of Transcript]

 

Presenters

  • Amy Laffan, First Assistant Secretary, Quality and Assurance Division 
  • Mel Metz, Assistant Secretary, Legislative Reform Branch 
  • Cathy Milfull, Director, New Aged Care Framework Development Section 
  • Naomi Lavithis, Director, New Aged Care Framework Development Section 
  • Jessica Robinson, Acting Assistant Secretary, Harmonisation and Regulatory Strategy Branch

About the webinar

Consultation on the foundations of the new Aged Care Act will commence on 4 August 2023. This webinar provided information on the: 

  • structure, purpose and constitutional basis 
  • Statement of Rights  
  • Statement of Principles 
  • definition of high quality care 
  • new duty of care and compensation pathways 
  • whistle-blower protections 
  • supported decision-making arrangement, and 
  • eligibility for Government funded aged care services 

Information on ways to provide feedback, including a consultation paper, fact sheets and survey, are available on the Aged Care Engagement Hub from 4 August 2023.  

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