Response to NSW Department of Fair Trading’s consultation paper on Rules of Conduct for Operators of Retirement Villages – Retirement Villages Amendment Regulation 2019

CPSA welcomes the opportunity to comment on Department of Fair Trading’s consultation paper on the Rules of Conduct for Operators of Retirement Villages – Retirement Villages Amendment Regulation 2019 (the Regulation).

CPSA’s submission focusses on the impact of the shift from residential aged care services to in-home care services under way in Australia on the operations of retirement villages.

List of recommendations:

1. CPSA recommends that Commonwealth Aged Care Act 1997 and the legislation establishing the Office of NSW Ageing and Disability Commissioner (once enacted) be included in clause 4 of the Regulation.
2. CPSA recommends that a rule be imposed on village operators which requires them to clearly and unequivocally communicate to residents, prospective residents or their representatives that they have the right and obligation to choose a provider if they are the recipient of an HCP, and that this provider need not be the village operator if that village operator is also a provider of HCP care.
3. CPSA recommends that a rule be imposed for disclosure of the suitability of accommodation for people with severe cognitive decline.
4. CPSA recommends that a rule be imposed for disclosure of the proximity to the village of residential aged care.
5. CPSA recommends that the elder abuse strategy under clause 9 should include prevention as one of its aims.
6. CPSA recommends the mandatory inclusion in a village’s elder abuse of a reference to the Office of NSW Ageing and Disability Commissioner and its powers.
7. CPSA recommends that retirement village staff in contact with residents should receive dementia-awareness training.

Part 2, clause 4 of the Regulation requires village operators to have a knowledge and understanding of the various pieces of legislation relevant to the management and operation of a retirement village.

In CPSA’s view, the Commonwealth Aged Care Act 1997 should be explicitly included, as retirement villages are fast becoming Home Care Package hubs. This development was set in train by the Home Care Packages (HCPs) program (administered by the Commonwealth Department of Health under the Aged Care Act 1997) becoming a consumer-directed care program starting on 1 July 2014. Overall demand surged and, although no statistics are available, many HCP recipients and waitlisted applicants can be assumed to be living in retirement villages due to the fact that villages cater for older people.

 At the time of writing this submission, the latest published data showed that 127,000 people were waiting for the Home Care Package (HCP) at the level for which they had been assessed. Of those 127,000 waiting 69,000 had no HCP at all, but 63,000 of those 69,000 accessed the entry level form of aged care provided through the Commonwealth Home Support Program (CHSP), while of the 127,000 people waiting, 58,000 had a lower level and therefore inadequate HCP. Of the 127,000 people waiting, 90,000 also had an approval for entry into residential aged care.[1]

In addition, retirement villages are marketing their products and services as including the availability of in-home aged care. Some villages are actively marketed as offering a packaged accommodation and HCP deal, which seems to be inconsistent with consumer-directed care and care recipients’ ability to change care provider if that is what they want to do.[2]

Given the extensive retirement villages already have with the HCPs program and also with the CHSP, it is important that operators have a knowledge and understanding of the Aged Care Act 1997 and that this explicity required of them in the Regulation.

Section 4 of the Regulation should also mention explicitly the legislation establishing the Office of NSW Ageing and Disability Commissioner. Legislation is going through the NSW Parliament for the Office of NSW Ageing and Disability Commissioner to commence operations on 1 July 2019, coinciding with the projected commencement of the Retirement Villages Amendment Regulation 2019.

The establishment of the Office of NSW Ageing and Disability Commissioner and the introduction of extensive powers to investigate reports of, and complaints about elder abuse need to be understood by village operators, who should make reference to the Commissioner and his/her investigative powers in their mandatory elder abuse strategies. It is important that operators have a knowledge and understanding of the NSW Ageing and Disability Commissioner legislation and that this explicity required of them in the Regulation

1. CPSA recommends that Commonwealth Aged Care Act 1997 and the legislation establishing the Office of NSW Ageing and Disability Commissioner (once enacted) be included in clause 4 of the Regulation.

Part 2, clause 5 requires village operators inter alia to have regard to the age and health of residents or the prospective resident.

Given the growth in aged care delivery in the form of Home Care Packages under the Aged Care Act 1997 and the growth in the delivery of Home Care Packages by aged care providers who are also village operators, it is apparent that such dual operators have a vested interest in targeting prospective residents who are approved for a Home Care Package. In such cases, the dual operator not only stands to gain financially from the sale of a residential unit, but also from providing aged care through a Home Care Package.

Such a vested interest and the commercial behaviour it inevitably prompts may not be not in the best interests of all residents. It is in the best interests of residents that they are informed by the village operator that, under consumer-directed care, residents have the right and obligation to choose a provider of care as part of their HCP.

2. CPSA recommends that a rule be imposed on village operators which requires them to clearly and unequivocally communicate to residents, prospective residents or their representatives that they have the right and obligation to choose a provider if they are the recipient of an HCP, and that this provider need not be the village operator if that village operator is also a provider of HCP care.

CPSA suggests that acting in the best interests of all residents would require an operator to disclose whether the accommodation they provide is suitable for occupation by residents with severe cognitive decline that may lead them to display anti-social behaviour or to place their own security at risk, for example through wandering.

Ensuring that the accommodation is suitable in such cases also means that operators should disclose the availability of residential care within the village or in proximity to the village so that, if residential care is required at some point in the future, it is available without the need for a partner to move or regularly travel long distances to be close their partner in residential care.

3. CPSA recommends that a rule be imposed for disclosure of the suitability of accommodation for people with severe cognitive decline.
4. CPSA recommends that a rule be imposed for disclosure of the proximity to the village of residential aged care.

Part 2, clause 7 requires village operators to act with honesty, fairness and professionalism.

Anecdotal evidence suggests that, in their marketing, village operators will suggest that the in-home care services provided under the Home Care Package program is part of the transaction whereby someone becomes a resident. In other words, village operators who also are aged care providers do not disclose to prospective residents that the care they receive as part of a Home Care Package is consumer-directed and that Home Care Package recipients can choose their provider and change providers if they so choose.

Recommendation 2 above is relevant in this instance.

 Part 2, clause 9 requires an operator to prepare a strategy for mitigating elder abuse.

The Regulation requires the elder abuse strategy to achieve identification and mitigation of elder abuse. Both these goals are after-the-fact actions and are certainly required as part of any elder abuse mitigation strategy. However, education about elder abuse can assist in preventing it.

5. CPSA recommends that the elder abuse strategy under clause 9 should include prevention as one of its aims.

As mentioned earlier, the establishment of the Office of NSW Ageing and Disability Commissioner on 1 July 2019 creates a new avenue for the prevention, identification and mitigation of elder abuse in NSW.

6. CPSA recommends the mandatory inclusion in a village’s elder abuse of a reference to the Office of NSW Ageing and Disability Commissioner and its powers.

Part 6, clause 30 requires policies and procedures for training and competencies to include certain information.

Given the expected significant rise in the incidence of age-related cognitive impairment, retirement villages can be expected to provide accommodation to an increasing number of residents with various forms of dementia in various degrees of intensity. This will be intrinsic to the day-to-day running of retirement villages.

It would therefore be appropriate for anyone working in a retirement village who had contact with residents to receive some formal training in how to deal with people with cognitive impairment and learn about the causes and manifestation of their illness.

7. CPSA recommends that retirement village staff in contact with residents should receive dementia-awareness training.

[1] Home Care Packages Program, Data Report 1^st Quarter 2018-2019, Dept of Health, November 2018.

[2] https://www.agedcare101.com.au/retirement-living/types-retirement-living/home-care-retirement-villages – accessed on 5 June 2019.