A flurry of announcements about nursing homes now employing round-the-clock registered nurses suggests that the aged care system in Australia is on the up and up.
Some low-hanging-fruit Royal Commission recommendations have been implemented but the main work has yet to be done.
A new Aged Care Act is being written to commence on 1 July 2024, but it is becoming clear that the Australian Government is doing its utmost to thwart the implementation of some fundamental Royal Commission recommendations.
Right to care or right to wait for care?
The Royal Commission wanted the old Aged Care Act 1997 rewritten and an entitlement-to-aged-care system featuring a statutory duty of high-quality care introduced. The Australian Government is now consulting about that, as you do, but read its consultation paper carefully, and it becomes clear the Government will do its utmost to avoid creating an entitlement system and imposing a duty of care.
An entitlement system confers a right to something subject to eligibility, whereas an eligibility system means a right to something subject to eligibility and availability. The NDIS is an entitlement system (no waiting list), the current aged care system is an eligibility system. The difference between these two types of system can be huge, as older Australians experienced when the waiting list for Home Care Packages numbered more than 100,000 people. Tens of thousands died while waiting on the waiting list.
It is therefore very important that Australia creates an entitlement-to-aged-care-system, but the Government’s consultation paper simply glosses over the issue, not mentioning it at all. This omission cannot be an oversight. It is intentional.
A statutory duty not to maim or kill people
Not only did the Royal Commission want an entitlement-to-aged-care system, it also wanted the providers operating within that system to have a statutory duty to high quality care.
The Government’s consultation paper says, without offering any evidence, that high quality of care “cannot be defined with sufficient legal clarity”. The paper then proceeds to whittle down the requirement even further: “It is intended that the new Act will provide that only serious failures to act in a manner consistent with the duty will amount to a breach of that duty”.
A serious failure the paper defines as “a risk to, or actual serious illness, injury or death of an individual to whom the duty is owed”.
The Government is therefore proposing a duty of basic care (which apparently can “be defined with sufficient legal clarity”), which can be legally breached with gay abandon unless the breach makes a care recipient gravely ill or kills them.
Effectively, the Government is proposing a statutory duty for providers not to maim or kill aged care recipients. Soon the Government may find itself embroiled in a turf war with the theatre of the absurd.
This is certainly not the type of statutory duty the Royal Commission had in mind.
It is very clear that the Government is trying its hardest to take the sting out of the Royal Commission’s final report and recommendations. If it has its way, the new aged care act will look very much like the old one and aged care in Australia will continue to be in trouble.
CPSA’s call for an Aged Care Royal Commission
CPSA’s evidence at the Royal Commission