New Aged Care Act Q&A session

[Opening visual of slide with text saying ‘Australian Government with Crest (logo)’, ‘Department of Health and Aged Care’, ‘New Aged Care Act, Question and Answer Session’, ‘Wednesday 28 February 2024’, ‘Chair: Amy Laffan, First Assistant Secretary, Quality and Assurance Division, Aging and Aged Care Group’, ‘Presenters: Mel Metz, Assistant Secretary, Legislative Reform Branch. Simon Christopher, A/g Assistant Secretary, Harmonisation and Regulatory Strategy Branch. Katie Holm, Assistant Secretary, Strengthening Providers Branch’]

[The visuals during this webinar are of each speaker connecting via videoconference and visible onscreen, with occasional reference to the content of PowerPoint slides onscreen]

Amy Laffan:

Good afternoon and thank you all for tuning in to today’s webinar about the new Aged Care Act. I believe we have around 1,300 people registered to join us today which is a fantastic effort and I thank you all for tuning in.

My name is Amy Laffan and I’m the First Assistant Secretary of the Quality and Assurance Division in the Ageing and 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, Katie Holm, Assistant Secretary of the Strengthening Providers Branch, and Simon Christopher, Acting Assistant Secretary of the Harmonisation and Regulatory Strategy Branch.

I’d like to begin to 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.

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

So today’s webinar is part of our public consultation activities about the exposure draft of the bill for the new Aged Care Act.

Throughout today’s webinar you can lodge questions in the Slido box on the right-hand side of your screen. If you can’t see Slido you can scan the QR code on the slide to open Slido on your phone. We may not get to all of your questions and some might be out of scope for today’s webinar but your questions and sentiments are important. We’ll attempt to respond to as many questions as possible live and we’ll also be putting an updated Frequently Asked Questions document on our website. Some of the questions that were submitted during registration from the previous Q and A webinar will also be answered during this Q and A session.

As I mentioned in our last webinar our consultations commenced on the 14th of December last year. They will stay open until 7:00pm on Friday the 8th of March which brings the total consultation period to 12 weeks. If you haven’t done so already I encourage you to visit our consultation page where you can access a copy of the exposure draft, our consultation papers and supporting resources.

There are a range of ways in which you can have your say including by completing a survey, lodging a submission, sending us an email or letter or registering to attend one of our remaining face-to-face or virtual workshops.

We have two final virtual workshops, one on Tuesday the 5th of March and another on Thursday the 7th of March. We also have five additional face-to-face workshops coming up. The first is in Brisbane this Friday, 1st of March. On Tuesday next week, the 5th of March, there’ll be a workshop in Adelaide and two workshops in Darwin. The second Darwin workshop will have a First Nations focus. And on Thursday next week, the 7th of March, we’ll hold a workshop in Wollongong. These workshops are free to attend, will run for about four hours and are a great way for you to have your say about the new Act and to connect with other interested people in aged care reforms. Click on the Upcoming Workshops link on our consultation page to register.

Now the main purpose of today is to provide you with an opportunity to have your questions about the new Act answered. To ensure we’re able to capitalise on the experience of our panel members today we’ll focus on the exposure draft of the bill of the new Aged Care Act, regulatory framework and approach, the Complaints Commissioner and worker screening. Throughout the webinar we’ll also have some poll questions that we’d like your feedback on and I’ll let you know when to answer these questions.

From our last Q and A session and through the registration process for this webinar we received a large number of questions that were broadly similar. So I’ll start today’s session by addressing a few of these more common questions.

Q:          So we’ve received quite a few questions about how family and friends, carers are positioned within the new Act?

Mel.

Mel Metz:

Thanks Amy. It’s a really good question and something we heard a lot in our first round of consultation, the need to particularly recognise carers. So the Statement of Principles recognises the valuable contribution that carers make to society, consistent with the Carers Recognition Act which is cross-referenced, and that carers should be recognised as partners with registered providers who deliver funded aged care services. And the Statement of Rights also provides that a person has a right to have the role of persons who are significant to them, including carers, acknowledged and respected.

The Statement of Rights also says that individuals have a right to stay connected to friends and family, including having a right to safe visitation. And family, friends and carers can also apply to be appointed as supporters or representatives under the new Act which will give them authority to receive information and assist a person to make decisions and where it does become necessary to make decisions on that person’s behalf in accordance with their wishes and preferences.

So there’s a number of ways that carers are recognised in the exposure draft. Thanks Amy.

Amy Laffan:

Thanks Mel. The next one is about provider regulation. So that will be for you Simon.

Q:          So will the Quality of Care and Accountability Principles still be relevant?

Simon Christopher:

Thanks Amy. The new Aged Care Act will set out the obligations that registered providers are required to meet. Provider obligations will be determined by a provider’s registration categories and will be risk proportionate, largely referred to in the Act as conditions of registration, and will be as I mentioned dependent on those registration categories a provider’s registered into and align with the department’s aim to simplify the aged care system. These obligations are being combined and streamlined where appropriate into a single set of rules to increase clarity of expectation for providers and older people.

The department intends to consolidate the existing provider obligations and continue them under the new Act, such as the Quality of Care Principles 2014 and the Accountability Principles 2014, as well as other subordinate legislation pieces into a single set of rules. Examples of the obligations from the Quality Care Principles that will be included in the new rules include such things as people would be familiar with, incident management, behaviour support, restrictive practices. A good example of how that’s coming together, the Quality Standards which have been updated and strengthened, have been consulted on, they’ll form part of those rules as well and can be found on the department’s website.

Thanks Amy.

Amy Laffan:

Thanks Simon.

And one last one from the pre-submitted list and this one will be for you Katie.

Q:          We’ve had quite a few questions about the Complaints Commissioner, I even see them coming through on Slido at the moment, and particularly about how the Complaints Commissioner will handle complaints received by the Aged Care Quality and Safety Commission?

Over to you Katie.

Katie Holm:

Thanks Amy. Good afternoon everyone. I’m coming to you from Yagara and Turrbal country in Brisbane.

So the new Act has the existing role of Complaints Commissioner positioned in the new Act as a statutory role. So that’s a new and improved reform giving the Complaints Commissioner quite a lot of visibility and standing.

So the establishment of a Complaints Commissioner, many people would remember that that role was a recommendation of the Royal Commission. And the Royal Commission also talked about making sure that there was more transparency around investigations and resolution processes of each complaint. And there was a sense through the Royal Commission that perhaps those processes weren’t as clear.

Now we know that the Commissioner has already started working on improving that system. But under the new Act there will be some more explicit information and requirements around complaints. And what it will enable is for an older person receiving aged care services or their advocate, they may be able to make a complaint – so it’s very explicit about that – to the Complaints Commissioner in any circumstances in which they feel that the older person’s rights have not been upheld. And complaints can be made against a registered provider or aged care worker and those complaints can relate to the treatment of a person or persons other than the complainant.

The Complaints Commissioner will be a member of staff of the Commission. And some of those explicit functions will relate to having powers delegated from the Commissioner to the Complaints Commissioner and making it clear that there is a single point of accountability for complaints. So any complaints at a system level, they will be referred to the Inspector General of Aged Care.

Thanks Amy.

Amy Laffan:

Thanks Katie. I’ll now turn towards answering the questions that are up in the Q and A on Slido. So just once again that’s on the bottom right-hand side of your screen. And even if you’re not submitting a question yourself please feel free to upvote questions because I’m going to try to go for those questions that are the most popular. But I also might try to mix things around a bit just so that we’re hearing from different members of the team so you don’t get sick of one person’s voice.

But I might just start with one of the ones that’s top rated here and Mel I think this one’s for you.

Q:          And that is when do we expect the missing and incomplete parts of the Act, and will there be further consultation on these important components?

Mel Metz:

Thanks Amy. And I can see that there’s some similar questions around the rules which are also really popular. And I can understand – thanks everyone for going right for the really tricky question but I can understand why people want to know.

We’re obviously on a tight timeframe with the legislation and consultation takes time. So if we do further consultation on those things that is a trade-off in terms of getting the legislation into Parliament. So that’s what effectively government has to weigh up and decide on. So whether there’s further consultation is actually a decision for government.

What I’ll say though around the rules and the other parts of the bill, like if there isn’t a chance for further consultation before they go into Parliament the Parliamentary process provides another really significant scrutiny process. I think it’s pretty likely that this Act because it’s such a big piece of legislation and so important to the aged care sector and it follows a Royal Commission it’s very likely to go through a committee process. And the Senate Committees look at things in a lot of detail and sometimes they even seek submissions or call people in to ask them questions. So just because we don’t do another consultation as comprehensive as the one that we’ve done over the last 12 weeks or so doesn’t mean that there won’t be further opportunities for people to engage with the legislation.

And the other thing that I’ll say is some of those missing parts of the bill have had quite a lot of consultation done. It might not have been on the text of the legislation but on things like Support at Home there’s been a long process of consulting on Support at Home. There’s been a whole Royal Commission that some of the things in the Act have come from so they’re very familiar to people already. And there was an expert taskforce set up by the Minister to consider some of the issues around funding and means testing. So a lot of work has been done on that already outside of the actual text of the legislation kind of being in front of people.

Thanks Amy.

Amy Laffan:

Thanks. And did you want to go to the rules and the timing for the rules?

Mel Metz:

Yeah. I think actually that’s a really good prompt. We’ve got a poll question which we might put up about the rules. Because one of the things we get asked a lot about is the balance between having things in primary legislation and in rules. So we did want to just ask this group if we can put the poll up, a question about rules, and just get your views in this forum on that.

With the rules it’s something that Senators are very interested in when we have taken legislation through Parliament previously. So our aim is to have rules ready, at least the most critical aspects of the rules ready for those Senate Committee processes. So everyone can have a look at them at that point. And if there are views that we need to change things at that point there will still be an opportunity to do that. Thanks Amy.

Amy Laffan:

Thanks Mel. And this is just an example of me – I’ll just move around, give Mel a bit of a break and move on to Katie. Katie there’s a question here about Complaints Commissioner.

Q:          Could the Complaints Commissioner be made independent of the Aged Care Quality and Safety Commission with their own staff an enforcement function?

Apologies. My things have just moved around.

Q:          If not how will enforcement of complaints and the wellbeing of the aged be made independent of other influences?

I mean I might start off and say there’s actually a really long history with where complaints has been placed and whether that’s been in the department, in a separate regulator or with the regulator. Many people with a bit of history in aged care would know that after the horrible events in Oakden that kind of led to the joining up of the Complaints Commissioner and the regulator, mainly because of some flaws in information sharing between the two. So that’s kind of how we ended up where we are.

I think to answer the question also really specifically, could a Complaints Commissioner be made independent of the Aged Care Quality and Safety Commissioner, yes technically that could happen. That’s not something that was recommended by the Capability Review but it is something we’ve been receiving a fair bit of feedback on as part of this consultation process. Katie do you have anything to add?

Katie Holm:

Thanks Amy. I think that was really helpful to have that history as well. And the only thing that I would add is that it is really important in any of those sort of governance mechanisms to have clarity around accountability. And it sounds to me like that question is really driving at accountability. So making sure that the function that sits within the Commission and is so connected to many other functions in the Commission, making sure that there’s a single point of accountability for the operation of that function is really critical. Otherwise I think there’s a real risk that things could drift back into lack of sharing, lack of joined up and connected approaches.

So if the system and the function’s not working, it’s really important for accountability to sit with one officer rather than that necessarily be spread across several because fixing performance is always going to be much easier if we can focus in on who the accountable officer is.

Amy Laffan:

I think that question’s really useful too. And what would be helpful in terms of the feedback that we get through consultation is what are people concerned about? What are you looking for by having an independent Complaints Commissioner? One of the things that was mentioned in that question was about the Commissioner being able to make decisions without undue influence. So that’s a helpful example. If people have other examples we welcome your feedback on those.

Okay. Moving to scroll back up.

Q:          A very popular question around the timing of the new Aged Care Act and whether it will come into force on July 1st?

Mel Metz:

I guess that’s one for me as well Amy.

Amy Laffan:

It is. Yeah.

Mel Metz:

Like I’m getting all of the tough ones.

Amy Laffan:

I’ll jump in too, but yeah you go.

Mel Metz:

So July 1 is not very far away. And I think people who are voting that question up are probably feeling that as well which is why you’re asking the question. We did have 1 July 2024 in the exposure draft largely because we wanted to gauge views from the sector about how ready you’re feeling. And we did want details about not just ‘There’s a lot of reform and it’s all very hard and we need more time,’ but ‘This is how much time we need to be able to implement this well.’ And like that’s a government – like a Commonwealth departmental consideration and Commission consideration as much as it is for providers and people, like how ready they’re feeling for the change. We still have 1 July. That’s the date that government has committed to but it’s subject to Parliamentary passage. And anyone who’s looked at the sitting calendar knows there’s not a lot of sitting time. And particularly if we run into committee processes and things, they all take time as well.

So I guess the answer to the question is it’s still the date that government has in mind, it’s the date that’s in our exposure draft, but we are listening to what people have to say about how ready they feel for that date and then it will be up to government to make a decision about it.

Amy Laffan:

Thanks Mel. And as I’m scrolling through there’s actually – yeah there’re more than one question asked about the timeframes.

Q:          Just quickly though there’s one that talks about a single go-live date.

So it might just be worth clarifying that Support at Home is due to commence on the 1st of July 2025, so that’s government’s commitment on that. So in a sense there’s no single go-live date there. It’s differently expected there.

Okay. I’ll move up.

Mel Metz:

While you’re searching for a question Amy I’ll just add to that on the single go-live date because there’s a bit more to that question which sort of goes to transitional arrangements which are really important as well.

So the question is kind of directed to are providers expected to be compliant immediately. And I think if the Commissioner was here she would say if there’s a legal requirement then it’s the Commission’s role to consider whether or not it’s been met. But that’s not to say that there won’t be transitional arrangements in place.

So for example we’re not going to be reassessing every single person on day one under the new legislative requirements. Like we just can’t do that and we wouldn’t want to impose that on people. And we won’t be reconsidering provider registration all on day one either. Like those things will be staged over time. So there will definitely be transitional arrangements in place, not everything happening on one day.

Amy Laffan:

Thanks Mel. And I think that goes to what is our current most popular question.

Q:          Which is how the transition will be managed, you know asking about that single go-live date and will people be expected to be compliant immediately?

And I think that is – you know we’re listening to feedback and we’ll do everything we can to ensure that there’s an appropriate transition period.

In terms of will leniency be shown towards some compliance, that’s a matter for the Aged Care Quality and Safety Commission. But I do know that in all kind of similar circumstances where new obligations have been introduced, their immediate focus is on education and allowing people to understand what the new rules are rather than going straight into compliance actions there. So hopefully we’ve answered your question there.

Mel I don’t know if you know this.

Q:          Will the new Act clearly outline what is and isn’t an additional service, i.e. a defined list of services that must be included and what services can be charged?

Mel Metz:

Yeah. That’s a really good question and I’ll answer it to the best of my knowledge. And I think we will also take that away for our colleagues in the Residential Aged Care Team who are working on Support at Home who can probably elaborate on that and we’ll put it in our Frequently Asked Questions.

But what the new Act will do is introduce a service list for all Commonwealth-funded aged care. And that service list is going to for the first time make it very clear to everyone what aged care services the Commonwealth funds. That’s a really critical feature of the new Act. It will be included in rules because we want the flexibility to be able to add in new services as different things might be innovated and changed and there are new things the Commonwealth wants to fund. And that also links into the regulatory model and how providers are regulated. So it’s a really important kind of structural feature of the legislation. I don’t think that answers the question completely but like I said we’ll take that away to our colleagues in Residential and Home Care.

Amy Laffan:

Thanks Mel. And because people have heard a lot from you and me I might hand over to Katie now.

Q:          The question says to protect our older persons living in care why hasn’t the Commission legislated care staff to be registered with a governing body such as AHPRA?

It might just be useful to talk about where we’re up to with worker registration and the government’s commitments on that.

Katie Holm:

Thanks Amy. So in addition to the Royal Commission recommendation 77 which had some subparts to it, the government has made an election commitment around the registration of personal care workers. And we have done quite a lot in terms of delivering on recommendation 77 and there’s four elements to that. And the first element was delivered in December 2022 and that was the Code of Conduct, so 1st of December 2022. So we’ve been working for over a year now with the Code of Conduct. The Commission has a very important role with the Code, and under the legislation banning orders can be made in relation to individual workers.

So the subsequent elements relate to worker screening. And the commitment there is that the current Worker Screening scheme that’s used in the NDIS will be expanded to the aged care sector. And that is based around workers regardless of what role you are doing and it focuses more on the type of activity that you are working on, as well as key personnel. So you need to be in a risk-assessed role and there are descriptors that the NDIS use to help us guide or be guided on what a risk-assessed role is.

Now the NDIS Worker Screening scheme works across the country and is delivered by worker screening units in each state and territory. So we’re working very hard at the moment in partnership with states and territories to expand the scheme so that it can include the aged care sector.

And what we do know is that there are many workers who work in the NDIS system and the disability sector, as well as aged care. So we’re working very carefully to design a system so that there’s no duplication and overlap. And all you’ll need to do is be checked once regardless of whether you are working in aged care or if you then have another role in the disability sector.

In relation to AHPRA people would understand that health practitioners are registered by the Australian Health Practitioners Registration Agency. And the government has made a decision that because there is such strong alignment in terms of all of the items that are checked by AHPRA on an annual basis, because there is such extensive work that has to go into achieving registration as a health practitioner, the scheme that we are designing for aged care would recognise an AHPRA-registered worker and not require them to have this additional check.

So that’s how we are designing the scheme in consultation with states and territories. We are working very closely with states and territories. All of that work has to be reflected in an inter-governmental agreement. And we’re hoping that we have made progress so far and that we will make more progress this year and have that head of power in the new Aged Care Act to enable all of this to happen, and so states and territories can then pass reciprocal legislation so that they can undertake these checks for us.

Thanks Amy.

Amy Laffan:

Thanks Katie.

Q:          A question here about when the new Quality Standards will be finalised?

So the Quality Standards have been finalised. They are currently – a final draft is currently on the Commission and department’s website and guidance material is being developed in accordance with those draft final standards. The reason why I say draft is that they do need to be turned into law, and that will happen through the new Aged Care Act and then through a set of rules. But I think you can take the standards that are currently on our websites and that we’ve used for piloting et cetera as pretty much final. That’s as definite as we can get at this stage without them having passed through Parliament and being written in those rules. But yes look at the version that’s on the department and Commission’s websites.

Q:          Mel will there be security of tenure in the new Aged Care Act? What happens if a home care provider is not able to support an older person at home within the resources that are available?

Mel Metz:

So there’s two questions in that. I’ll start with security of tenure. So yes there will be security of tenure. It’s currently in the – I think it’s in the User Rights Principles. So it isn’t in the primary Act, the 1997 Aged Care Act. But that’s not to say that we shouldn’t be in the new Act considering whether to make it clearer that security of tenure exists. So like I guess the short answer to that is yes it’s absolutely going to be in the statutory framework. We’re still considering whether it will go in the rules or in the primary legislation.

And the second question about what happens if a home care provider is not able to support an older person at home within the resources available. We do have in the exposure draft the ability for reassessments to occur. And I would say like if that’s the situation that the resources are not appropriate, that’s the time for having the person’s needs reassessed to determine what the level of resources should be or if it’s no longer appropriate for that person to be cared for at home.

Yeah. Thanks.

Amy Laffan:

Thanks. In the interests of just moving things around a bit Simon I’ll come to you.

Q:          There’s a question here that says will subcontracted providers need to comply with all the requirements of registered providers under the new Act, including accreditation against the Aged Care Standards?

Simon Christopher:

Thanks Amy. The registered provider is ultimately responsible for the services they deliver. Where they choose to engage a subcontractor to deliver those services on their behalf largely that’s being referred to I think in the exposure draft as an associated provider, and those expectations of them and their worker are applied. So a worker of the subcontractor is effectively an aged care worker of the registered provider and would have those expectations of such things as the Code applied to them.

In relation to the specific question around an assessment against the standards, if the subcontractor for example was running a residential care home on behalf of the registered provider then they would all be undertaking or engaging in that assessment process onsite at that home, with the Commission, as part of the registered provider’s service offering.

Amy Laffan:

Thanks Simon.

The next top question here is for you Mel and it’s about supporters and representatives.

Q:          So how will this part of the Act work with state and territory guardianship and administration? If the individual in residential care has a guardian/administrator but the individual chooses a supporter who is not that guardian/administrator who will make the decision?

Mel Metz:        

Thanks Amy. I think what I’ll start off is just explaining what supporters and representatives is all about. So very similar to the NDIS and social security, we’ve proposed for the new Aged Care Act to have a Commonwealth system of recognising all of those state and territory arrangements which differ around the country. So that’s what the supporters and representatives arrangements are all about.

We did hear through the first round of consultations that we did that people were worried that those two things wouldn’t align. So what the exposure draft that has been put out does is effectively picks up those state and territory guardianship and administration arrangements that are in place and applies them at the Commonwealth level in the context of aged care. Unless there are really terrible circumstances which mean that the Commonwealth shouldn’t pick up those arrangements, for example if there’s a known elder abuse situation going on.

There’s a difference between supporters and representatives which I think answers this question. So if someone is a guardian or administrator, they would be a representative under the Aged Care Act and would be making decisions. A supporter is just someone who’s there to help a person navigate the aged care system. So they might be able to receive particular information about the person but they can’t ever step in and make a decision on someone’s behalf. So in terms of who makes the decisions it would always be the representative, and that that would be the guardian or administrator in that situation that’s been outlined in the question.

Amy Laffan:

Thanks Mel. And as I was scrolling down there’s kind of another question which I think is related.

Q:          And it says what checks and balances will be built in to mitigate the risk of elder abuse or to manage situations where multiple nominated carers or representatives are not in agreement?

Mel Metz:

Yeah. So we will pick up the state and territory arrangements. So those arrangements of sorting through when people don’t – where there are multiple powers of attorney and they don’t agree, those state systems to manage what happens will come into play.

And sorry Amy what was the first bit of the question? I think it’s been ...

Amy Laffan:

So what checks and balances –

Mel Metz:

The checks and balances.

Amy Laffan:

– will be built in? Yeah.

Mel Metz:

Yeah. So the check, very similar to the way My Aged Care works now, it will be someone on My Aged Care who checks that documentation to make sure that it’s correct. If there is a known situation of elder abuse, that’s why we have that fallback position where the Commonwealth doesn’t have to appoint that power of attorney. So if the person makes it known that there’s an issue with their power of attorney and there’s work underway or there’s a case on foot to remove that person as a power of attorney, then we would take that kind of thing into account.

What I’ll say is we do this already for My Aged Care, we do it for social security, we do it for the NDIS. The Commonwealth is very experienced in dealing with this and the complexity of it. And we completely understand that like these are complex. And we’re trying to I guess make sense of what is a very complex and differing system around the country in the context of aged care so it’s very clear in aged care who can receive information about someone and who can step in and make decisions about someone.

Thanks Amy.

Amy Laffan:

Thanks. 

Q:          There’s one here that says will there be any further details in the rules regarding Monthly Care Statements as they don’t appear in much detail?

Yeah. That’s exactly right. That’s where we would see information about those Monthly Care Statements. Just so people know in terms of where we’re up to on that, we did a pilot last year, we got those findings of the pilot and we’re looking at how we might respond to them. So we should be getting out to stakeholders soon to close the loop on that one.

Here’s one Mel I’m hoping you can answer.

Q:          It’s will case managers be held legally liable under the new Act?

Mel Metz:

So Katie probably knows the answer to this. But I think this is a reference perhaps to care managers and the Code of Conduct, whether that would extend to care managers. So anyone who’s providing services that are funded by the Commonwealth to someone for aged care is covered by the Code of Conduct. And so the outcomes from Code of Conduct proceedings could apply to them if they do something to breach them. Like I think liability follows ...

Amy Laffan:

Yeah. I was just wondering whether the question is more about the potential civil and criminal penalties, whether case managers might fit within that regime?

Mel Metz:

Yeah. I was wondering too it if might be going to that. And we actually I think have another poll question about that. Because we have received a lot of feedback through the consultation process about the new duties that we’ve proposed on providers and responsible persons within aged care providers and a bit of concern around that. So we’ve got a poll there around whether having those statutory duties will ensure accountability and just seeing what the theme is from this group.

A care manager would only be responsible or liable in circumstances where a person actually suffers serious harm or injury or there’s like a serious risk of that occurring and they are a responsible person within an organisation. And that means that they would need to be in some kind of position of authority. Like it wouldn’t apply to – there’s no duty proposed for workers. We did do some consultation on that earlier. So if the care manager is a worker within an organisation the answer is no. If they have some kind of position of authority over others or responsibility and something goes wrong, it will depend on the level of responsibility that they have and control over the circumstances. So if it’s something completely beyond someone’s control there’s no legal liability that attaches to that.

I definitely encourage people to have a look at the consultation paper and what we’ve said about the duties and have a look at the way that the duties are crafted because we’ve been very clear in the drafting around the fact that liability follows level of responsibility.

Amy Laffan:

Thanks Mel. So just a reminder that we do have a poll question currently live on those statutory duties. So please fill that one in.

Q:          Mel can you please elaborate on the role of the delegate, who is to play a role in the assessment process as detailed in the exposure draft?

Mel Metz:

Yes. So in miscellaneous provisions, if anyone’s got to that part of the exposure draft, we’ve got a delegation provision which outlines when the Commissioner or the system Governor, the Secretary of the Department of Health and Aged Care, can delegate decision making to another person. And so in the context of assessments, the delegate is likely to be a member of the Single Assessment Workforce.

And usually – I think it’s probably also important to clarify that with delegates with any administrative decision that’s in the new Act there will be a right of review. So if someone doesn’t agree with the decision of the delegate they can seek to have that decision reconsidered internally. And it’s usually someone more senior that will then reconsider that decision. And there’s also a review right, appeal right to go to the new Administrative Review Tribunal to have that decision reconsidered as well.

Amy Laffan:

Thanks. And again just in the interests of moving things around, Katie there’s one on worker screening. I think it’s in response to the question you answered before. I’m not sure if you want to take it as a comment or whether you want to add to it.

Q:          But it says NDIS Worker Screening is very difficult to navigate and has costs for the individual. It is an inhibitor to employment and will be detrimental to already struggling aged care workforce. Has this been considered?

Katie Holm:

Thanks Amy. So we’ve been doing a lot of targeted consultation with workforce representatives and there was a broader consultation done in 2019 about worker registration generally. And we have all of the breadth of experience of the NDIS system to draw on as well. We work very closely as I said before with states and territories and have fortnightly meetings with them at some points around the design of how to make this work.

Obviously the goal here and single objective is to ensure the quality and safety of services. And the NDIS system does allow a much more comprehensive and robust check. So that’s really the overriding policy approach for government is to think about the safety and quality of the services. It’s a true statement that it is a much more comprehensive check. There is a cost that is being worked through at the moment with states and territories. But just like the current system that requires a police certificate before you can work in aged care, many providers pay for that check now. So we’re anticipating that the same sort of approach might be taken but that’s a matter for providers.

Amy Laffan:

And fair to say though Katie we’re also looking at efficiencies. So for example I mean as they are now, if someone is screened, has the NDIS Worker Screening certificate, then they actually don’t have to get a police certificate, they can use that screening as part of aged care. And so we’re looking at having those mutually recognised into the future so people don’t need a separate one for aged care and a separate one for NDIS, that you’ll be able to move between the two.

Katie Holm:

Yeah. So that will be a saving, definitely.

Amy Laffan:

Yeah.

Q:          And just another one sorry Katie that’s also related is someone has said worker screening is good but what about worker registration?

Katie Holm:

So the registration element is a separate matter. And the NDIS system doesn’t have a public register so you can’t see who has been screened or not. But it is not lawful to allow someone to work in a disability sector service setting without a check. So there are if you like checks and balances to make sure that people do. And that is about the provider doing their due diligence and checking before engaging anybody in their workforce.

I think the – can you just repeat the second part of the question?

Amy Laffan:

Yeah. It’s about the worker registration aspect and those other elements that the department’s working on.

Katie Holm:

So the other elements of recommendation 77 and the election commitment talk about a registration process. The department’s very interested in the views of the sector and the workforce, providers, whether there should be a public register. A registration system doesn’t necessarily mean that it has to be public and we’re working through that at the moment. So you won’t be able to work in aged care under the new Act unless you do have a Worker Screening Check done, and that is a form of registration if you like. But going beyond that, along with requirements around training, English proficiency and potentially mandatory minimum qualifications, then they are matters that might form part of a separate registration system.

The department has been scoping that, working through that, consulting on what the framework of that should look like. But has not gone out publicly with that material yet, just being conscious and had feedback from stakeholders that there’s a lot going on at the moment and this process is live and people’s attention is really around the new Aged Care Act. Any of those sort of changes would be further down the track if they were adopted by government.

Amy Laffan:

Thanks. But we are expecting a consultation process to occur on those elements of worker registration in the future.

Katie Holm:

Yes.

Amy Laffan:

Yeah.

The next two – well the two most popular questions at the moment I think are kind of related Mel.

Q:          And I think it’s all around potentially the rights of providers and the responsibilities of aged care consumers and their families. Because the first one is about providers who unfortunately endure verbal and email abuse from families and clients, and then the next one is about a significant increase with families defaulting on payments. So is there anything you can tell us about those kind of responsibility aspects?

Mel Metz:

Yeah. They’re great questions and I think they’ve been asked because they’re not covered in the exposure draft. But that’s not to say that they’re not coming up in consultation. And I think another one that I’ve heard a few times is about how - with support workers as well who suffer verbal or email abuse from families and clients.

So we aren’t proposing to have specific responsibilities of people outlined in the legislation. It was some time ago responsibilities I think they were removed from the User Rights Principles in 2019. There were some responsibilities for people around what they needed to do in respect of aged care, like recipients of aged care. There was no enforcement attached to them because there’s kind of very little that we can do from the Commonwealth Government level. Which is not to say that – like we’re not worried about it. I’m just not sure that the solution is necessarily within the scope of the new Aged Care Act.

In relation to workers, like there are work health and safety obligations to make sure that workers are safe. And also in respect of workers’ rights the Fair Work Act is another avenue for workers to be protected.

What I do think is really important and we tried to do it with Section 21 of the exposure draft is make it really clear that rights are not absolute for anyone. That the rights of an individual have to be balanced against the rights of other people, like particularly say in a residential aged care setting, and also the rights of workers who are working in the aged care sector. So no rights are absolute. But I think we perhaps haven’t been clear enough about that so we need to be much clearer.

And in terms of like families who are defaulting on payments, like again that’s something that’s regulated outside of the aged care system. Like if someone owes debts with respect of services that they’ve been provided, like the states and territories all have kind of ways of managing debt recovery processes. So it’s not something that we’ll be covering in the Aged Care Act but it’s definitely something that we’re very interested in hearing more about.

Amy Laffan:

Thanks. We have a question here I think – well it links to harmonisation. So Simon maybe we can answer it together.

Q:          It says many providers will not take NDIS participants as residents in RACFs due to the compliance and regulatory overhead. Has the legislation and rules considered harmonisation to ensure NDIS participants can access aged care beds without crippling the provider with dual systems?

So the first thing to raise is that this is something the government’s looking really closely at as part of the care and support economy work coming out of the Department of the Prime Minister and Cabinet. So looking at what the kind of burdens are, particularly providers who are providing services across aged care, across disability, across veterans’ care. It’s something that we’ve been particularly focused on I would say as part of the implementation and development of each measure.

So maybe even Simon if you can just talk about how we considered the NDIS in the development of the Aged Care Standards?

Simon Christopher:

Thanks Amy. I think the standards are a great example of how we’ve been really conscious of the regulatory burden for providers that are operating in both sectors. And what we’ve sought to do in the structure of the standards is really align that structure with other providers, particularly – not providers – regulators in the care and support economy, particularly in this case the NDIS Practice Standards. So that as we move forward in that harmonisation journey there are opportunities where the standards are able to be utilised in a much more streamlined way.

And the other thing I would sort of add in support of that comment is the work that’s being done to start to understand where there might be opportunities across the sectors for the single consumption of information or reporting requirements, so that that’s received once and used multiple times. But there’s certainly a body of work that’s underway to really progress a number of those things in support of the national strategy.

Amy Laffan:

Yeah. Lots of opportunities there. And we have started along the path but I think there’s actually a long way to go. So perhaps whoever put this question in as part of consultation might like to provide us with examples where there is kind of particular difficulties in navigating the two systems. Finding out where the pain points are helps us to prioritise. So thank you for that.

Q:          A question about when do we plan to commence education sessions regarding the specific changes to compliance processes at the coalface?

I mean I’m not quite sure – compliance processes could be a narrow or very broad question. So for example in terms of the Aged Care Standards I know that the Commission has put out already some draft guidance material. So that is intended to, one, draw comment and help see what more is needed in that, but also to help providers start to prepare for those new Aged Care Standards.

In terms of compliance and regulation Simon is there anything you want to add there?

Simon Christopher:

Yeah. Thanks Amy. At a recent Commission webinar we had a similar question. And I will frame it a bit more about the understanding of what a provider’s obligations will be, particularly because obviously the compliance will be against those obligations.

We will be coming out as part of the deeming and transition process to really frame with providers, based on their current funding arrangements, as to what they’ll transition into the new regulatory model, what those obligations will be. So we’ll be coming out in the coming weeks to articulate our process to do that. And then we’ll be coming out before the commencement of the new Act to really give those providers specific to their cohorts – because we do recognise it will be a bit different with the phasing of CHSP to not before the 1st of July 2027, that we’re going to need to target some of that communication and build that understanding for providers specific to those cohorts. So we’ll be coming out in ample time before commencement of the new Act. And then our colleagues over at the Aged Care Quality and Safety Commission will be really coming out I think in a much bigger scale to talk through the detail of cascading out of what those obligations are based on what we’re articulating providers will be deemed into, which registration categories, et cetera.

Amy Laffan:

Thanks Simon. Mel we have one more poll question left on the definition of high-quality care.

Mel Metz:

Yeah. So I hope that people on this webinar have had a look at the definition of high-quality care that we’ve got in the exposure draft and the different elements that we’ve included in that because we did consult quite a lot on that. And I think it’s probably good to just talk about why we have a definition of high-quality care at all.

So it was a recommendation of the Royal Commission that high-quality care should be defined. And that’s so that everyone in the system, the Commonwealth Government, the regulator, providers and people receiving services and their families, friends and carers all understand what excellent looks like. So this is a target for everyone to work towards over time. And so it’s an aspirational definition about what we would like aged care to look like.

And it’s included – that definition of high-quality care there’s a reference in the principles. And the regulator will have a view to it but is not going to be assessing providers like do they pass or fail against that. It’s not what this is about. This is about trying to get everyone to work towards excellence over time.

So that’s why we have a definition of high-quality care. And for people who have had a look at it I’d be really interested in views on whether what’s in the exposure draft aligns with what you would like aged care to look like in the future.

Amy Laffan:

Thanks Mel. So we’ll just leave that poll up. I see we’ve already had almost 70 people vote on that so thank you very much.

We’re now unfortunately at the end of our time.

Thank you so much to everyone who has provided questions. I’m sorry we couldn’t get to them all but hopefully you feel that we did focus on those questions that had the most upvotes.

As I mentioned at the opening of today’s webinar I urge you to visit our consultation page and to have your say about the exposure draft or to attend one of the scheduled workshops. If you have any questions please send us an email at AgedCareLegislativeReform@health.gov.au. And following the conclusion of our consultation process we will publish a consultation report where you can read about what we have heard.

Thank you once again for joining us today. We really appreciate the time you’ve taken. Thank you.

[Closing visual of slide with text saying ‘Consultation on the new Aged Care Act exposure draft’, ‘Thank you for attending today’s webinar’, ‘1800 318 209’, ‘AgedCareLegislativeReform@health.gov.au’, ‘Department of Health and Aged Care – New Aged Care Act Consultation, GPO Box 9848, Canberra ACT 2601, Australia’]

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