In its recommendations (no. 14), the Aged Care Royal Commission arguably comes close to proposing an effective ban on self-managed care by stipulating that the legislation replacing the Aged Care Act 1992 “should include a general, positive and non-delegable statutory duty on any approved provider to ensure that the personal care or nursing care they provide is of high quality and safe so far as is reasonable …”
Self-managed care in its purest form
Self-managed aged (in-home) care in its purest form is where a home care recipient recruits their own staff and sources their own services. The only involvement of an approved provider of home care under the Aged Care Act 1992 is to (1) receive Government aged care subsidies on behalf of the self-managing care recipient, (2) receive any means-tested personal contributions from the care recipient and (3) pay the bills.
Technically, the approved provider has to also has to provide care management. Obviously, if the approved provider were to provide care management in a meaningful way, two consequences would flow from that.
First, the HCP recipient would not be self-managing, defeating the purpose of self-managed care from the point of view of the care recipient. Second, the approved provider would need to at least recover the cost to them of providing care management, defeating the purpose from their perspective to be involved in self-managed care.
CPSA, in evidence given to the Aged Care Royal Commission, called the approved providers who are involved in this type of ‘pure’ self-managed care, mailbox providers. These providers don’t provide care, they merely facilitate its provision by non-approved providers, i.e. care staff ranging from cleaners and gardeners to registered nurses and allied health professionals. Essentially, those approved providers delegate their duty of care to the care recipient.
It is obvious that an approved provider who merely receives and dispenses funds on behalf of a care recipient is not ensuring “that the personal care or nursing home care they provide is of high quality and safe to far as reasonable”. In fact, the approved provider is not involved in care management at all. This is an important observation because, while the old Aged Care Act remains in operation (for another two years, it looks like), there are HCP providers who operate exactly like this. The new Aged Care Act will most likely ban it.
Importantly though, the non-delegable statutory duty of care applies to personal care and nursing care, and the Royal Commission also recommends the new Aged Care Act stipulate the approved provider must ensure the personal care staff and nursing care staff they employ have the necessary “experience, qualifications, skills and training”.
However, meal services, domestic assistance, social support and community transport don’t attract this non-delegable statutory duty of care. Since these are the types of services currently provided through the CHSP, this provides a rare opportunity to continue business as usual by CHSP providers.
While care recipients have the choice under ‘pure’ self-managed care to recruit their own staff without any assistance, online platforms like Mable, owned and operated by an entity which is not an approved provider, offer care recipients access to a staff recruitment database.
However, the owners and operators of such non-approved provider databases take no responsibility for the care provided by care workers contracted by HCP recipients. This responsibility technically lies with the approved ‘mailbox’ provider, although if anything goes wrong, their defence is likely going to amount to a claim that they delegated their duty of care and should not be in the frame for sanctions.
A further recommendation (31) of the Aged Care Royal Commission is that “a person’s approved provider must assign a care manager to the person unless an assessment team has assessed the person as eligible … without the need for any care management”.
The opportunity for self-managed care in its purest form becomes very small that way. In practical and effective terms it will be limited to meal services, domestic assistance, social support and community transport. This type of self-managed care is likely to be confined to entry-level care, at a point where care recipients are capable to manage. Moving beyond this to personal care and certainly clinical care, the Aged Care Royal Commission clearly envisaged that care management involve a care manager other than the care recipient.
The October 2022 discussion paper and its focus on how to best implement the desired clinical oversight and practical assistance through care partners for older Australians receiving care at home should be viewed in that light. Also, how to ensure the flexibility to respond to the changing needs of older Australians should be viewed, in part, as how the home care system should be respond to people who start out self-managing their entry-level care but won’t accept that their needs have developed beyond entry-level care.
The next post will deal with self-managed care which is pure but not quite.