Submission to the Royal Commission into Aged Care Quality and Safety: How the Aged Care Quality and Safety Commission was won

Summary

In this brief submission, CPSA argues that the Aged Care Quality and Safety Commission (ACQSC) has been set up in a way that allows the aged care industry advocacy and lobbying to become part of it through the Aged Care Quality and Safety Commission Advisory Council, which directly advises the Aged Care Quality and Safety (ACQS) Commissioner and the Minister and recommends that a structure similar to the

National Disability Insurance Scheme Quality and Safeguards Commission be implemented.

Submission

The ACQS Commissioner is subject to direction by the Minister about the performance of the Commissioner’s functions as head of the ACQSC. One of the ACQS Commissioner’s functions is to provide advice to the Minister at the Minister’s request.

The ACQSC Advisory Council, in relation to its functions, is also subject to ministerial direction. Its functions are to advise the Commissioner on its own initiative or at the Commissioner’s request and to advise the Minister at the Minister’s request.

This makes the ACQSC Advisory Council a powerful body within the aged care regulatory framework and un unusual body from a general governance point of view. The ACQSC Advisory Council more or less acts as the Board of Directors of a state-owned corporation.

The effect of the ACQSC Advisory Council providing advice to the Commissioner or the Minister can be far greater in an operational sense than the take-it-or-leave-it use of ‘advisory’ suggests. It can be compelling.

The role of the ACQSC Advisory Council is markedly different from the role of the Advisory Council in the National Disability Insurance Authority (NDIA), which, combined with the National Disability Insurance Scheme Quality and Safeguards Commission (NDISQSC), carries out similar functions as the ACQSC. In a nutshell, the NDIA runs the disability care insurance scheme and the NDISQS Commission runs the compliance monitoring.

The NDIS Quality and Safety (NDISQS) Commissioner reports to the Minister and can be directed by the Minister. The NDISQS Commissioner is banned from employment outside the Commission. The NDISQS Commission does not have an advisory or consultative board.

The Board of the NDIA reports to the Minister and can be directed by the Minister. NDIA Board members must not have employment outside the NDIA which conflicts with their Board membership as determined by the Minister. The NDIA Board can seek the advice of the Advisory Council and the Advisory Council can volunteer advice to the Board. Advisory Council members must disclose their conflicts of interests.

The NDIS Advisory Council can initiate advice to the NDIA Board but not to the Minister, and it cannot initiate or be asked to give advice to the NDIS Quality and Safeguards Commissioner, who is not part of the NDIA.

Both the NDIS Advisory Council and the ACQSC Advisory Council members must declare conflicts of interests to their respective Ministers and exclude themselves from Advisory Council deliberations when these conflicts are in play. However, while the ACQS Commissioner is banned from outside employment unless approved by the Minister, the other Advisory Council members are not.

At the time of writing, except for three ex officio members and two ordinary members, eight ordinary members had outside employment, including seven employed by organisations with barrows to push – commercial, in advocacy, or both – in aged care. These barrows represent interests that are likely to get in the way of the ACQSC Advisory Council’s deliberations if these are to have sole regard, as required by law, to the functions of the ACQS Commissioner.

What stands out is the membership of the ACQSC Advisory Council of Dr Stephen Judd and Mr Paul Sadler, who are both employed as CEOs by large aged care provider organisations, which the ACQSC is tasked to regulate. It is difficult to see how these two members would be able to attend any meetings of the ACQSC Advisory Board without having a continuous and significant conflict of interest as, apart from Board housekeeping items, every item of business discussed at the Advisory Board meetings would impact on the business of their employers.

It is unclear if any members of the ACQSC Advisory Council have declared one or more conflicts of interest to the Minister, and if any members have excluded themselves from any of the meetings of the ACQSC Advisory Council meetings. What is clear is that it is one thing for a regulator and its Minister to consult with vested interests, but that it is quite another thing for vested interests to be offered to become part of the regulator.

The NDIA Advisory Council is far less marked by memberships tainted by organisational interests. Those organisations that are represented are there explicitly in a support role, not in an advisory role. Importantly, the NDIS Advisory Council gives advice to the NDIA Board only and cannot be asked for advice by the Minister. As a result, the NDIS Advisory Council members are not part of the NDIA, while they do not advise the NDISQAS Commission.

The differences in governance between the role and reality of the ACQSC Advisory Council and the role and reality of the NDIA Advisory Council and NDIA Board are stark. These are bodies charged with carrying out similar functions, one in aged care, the other in disability care, yet one allows all conflicts of interests great and small to flourish, while the other is set up to minimise and manage conflicts of interest.

Through the ACQSC Advisory Council, the ACQSC is at risk from being progressively colonised by vested aged care interests and arguably is well on the way to that unfortunate destination since its inception and commencement of operations on 1 January 2019.

Recommendation

CPSA recommends an overhaul of ACQSC governance to ensure vested aged care interests cannot unduly influence ACQSC policy and operations. CPSA recommends a structure like the one used to administer the NDIS.