Monique Ryan (Kooyong, Independent) Share this | Hansard source

Aged care is one of the most important parts of the federal government's responsibilities to its citizens. The Aged Care Bill 2024 results from the most significant recommendation of the Royal Commission into Aged Care Quality and Safety in 2020, and it has been long coming and the subject of much consultation. There are unfortunately significant residual concerns with respect to the limitations of its rights based approach, to its complaint mechanisms, to its provision of supports for older Australians with a disability and those from a culturally and linguistically diverse background, and to its definitions of quality care.

This new aged care bill emphasises a rights based approach. It outlines a statement of rights for older people; however, those rights are not enforceable in any meaningful way. Parenthetically, this speaks to a bigger issue, which is the lack of a human rights act in this country. The bill relies on the Aged Care Quality and Safety Commission and the complaints commissioner to uphold the rights of older Australians, but there is no positive duty for providers to ensure that those rights are met. This lack of enforceability means that the rights it identifies are unfortunately, in reality, more aspirational than practical.

This positioning of a statement of rights in aged care is at odds with the rights to access healthcare. The Australian Charter of Healthcare Rights specifically sets out the right to access healthcare services and treatment which meet individuals needs. It's incongruous that we guarantee the right to healthcare services in this country to receive treatment in a medical fashion when you need it but we don't guarantee the same thing—we don't reciprocate this basic right—for older people. This seems curious, particularly given, as the previous speaker has pointed out, that our population is aging and that escalating aged-care needs will be in tandem with escalating healthcare needs for the Australian population.

Moreover, the rights delineated in this bill do not guarantee Australians quality aged care delivered when and where they need it. Rather, all the bill guarantees is the right to be assessed for eligibility for funded aged-care services. We all know that an assessment is pointless if the services that are required are not available. It's also worth considering that the statement of rights concludes, 'Nothing in this division creates rights or duties which are enforceable by proceedings in a court or tribunal.' This means that the rights enshrined in this aged care bill are enforceable only as far as the strengthened quality and safety standards extend. It means that the impact of a rights based approach is reliant on the effectiveness of the roles of the regulators, the system governor, the Aged Care Quality and Safety Commissioner and the complaints commissioner.

Unlike health care and the NDIS, the Aged Care Act retains a rationed approach to health care. Access to care is not a universal entitlement based on the needs that are assessed. This approach can lead to lengthy waiting periods and to inadequate support for people who need help. For people with a medium priority, the expected wait time for an approved homecare package is one to three months for level 1, three to six months for level 2 and nine to 12 months for level 3. I'm sure I'm not alone as a MP in having heard from many frustrated, anxious constituents and their families, who have been waiting for months on end to access the care that they need. Just last month, I heard from the daughter of a man who'd been waiting nearly 12 months for a level 4 package. On escalating the inquiry, the only immediate solution offered by My Aged Care was to go back to the existing level 2 provider to see whether any additional services could be offered under the gentleman's current package. It's not good enough.

Waiting for aged-care packages can have a significant impact on families. It leads to emotional, physical and financial strain. There are also productivity costs. I hear from family members who have had to reduce their own work hours or leave their jobs to provide care for elderly loved ones. It's not good enough for those family members and not good enough for those elder Australians. As this legislation does not address the need for a universal entitlement to care based on the assessed need, supported by adequate funding mechanisms, there is no guarantee that waiting periods will improve.

Secondly, although the new aged-care bill aims to improve the quality and accessibility of aged-care services, there are widespread concerns in the disability community that it falls short in supporting older people with disability. Firstly, it fails to provide a clear definition of 'disability' within the bill, which could lead to inconsistencies in how services are provided and accessed by older persons with disability. Secondly, the bill maintains a separation between aged care and other services such as health care, including allied health, and the NDIS. This siloed approach could well lead to fragmented care and support, making it difficult for people with disability to navigate the system.

The separation creates a gap where older people with disability may well not receive the comprehensive support they need. For instance, individuals diagnosed with dementia at age 65 receive limited home support, pushing them towards residential care. In contrast, those diagnosed at age 64 receive much greater support under the NDIS and can often remain at home for longer. Another example is several constituents of mine who have post-polio syndrome. Many were too old to access the NDIS when it was introduced, and they are now appropriately concerned there may be no pathway to adequate support via the aged-care system.

The EM for this bill has to clearly explain the bill's intention and purpose in relation to older people requiring disability supports. It should explicitly state that the aged-care act will facilitate provision of disability supports to older people who would otherwise qualify for the NDIS were it not for its age limitations. Further, the act should facilitate the development of a shared specialist disability assessment pathway which should be co-designed by and with people with disability and their representative organisations.

I have other concerns with respect to the legislation of eligibility for aged-care services for some people with disability aged less than 65. For the very first time in Australian history, this aged-care bill provides eligibility for aged-care services for people with disability aged between 50 and 64 who are from First Nations backgrounds, homeless or at risk of homelessness. These services include residential aged care and home care. This represents a policy reversal of over 25 years, with the federal government having promised to work to solve the issue of young people in residential aged care. There's real concern in the community that this eligibility change will lead to more young people with disability being institutionalised in aged care. These facilities are not suitable for their needs. This is occurring at a time when the Commonwealth is still claiming to be actively pursuing a national target to have no person aged less than 65 in residential aged care by January 2025.

I also point out that the bill's reliance on a market based model for aged-care services is problematic. It assumes consumer choice will drive sector development, but it's not always feasible for older people who may not have the capacity or desire to shop around for services. We need a values based public policy framework that integrates aged care with mainstream health and community services. We've seen the issue of leaving things to the market before with the NDIS. It didn't work with the NDIS, and we don't seem to have learned the lessons from that policy failure.

Ultimately, this bill's success will hinge on the availability of a well-trained and adequately staffed aged-care workforce. We note the workforce faces significant issues at this time. There's a risk that the bill's increased demands and higher standards of care could exacerbate existing workforce shortages. Without a concurrent focus on attracting new workers and retaining existing staff, the aged-care system might well struggle to meet the bill's ambitious objectives. On reviewing this legislation, Margaret, a 76-year-old constituent from Kooyong, summarised this issue for me:

There is a challenge and a tension between the aims for a quality and humane provision of care for older Australians and the realities of funding and staffing challenges.

She also noted:

This could push smaller, not-for-profit providers out of business while larger providers' priorities for profit are counter to better quality care.

I couldn't agree more, Margaret.

This bill introduces new practices such as the focus on supported decision-making and the revised incident management framework. These will necessitate substantial investment by aged-care providers in upskilling and training programs for their workforces to ensure that they can effectively implement the bill's provisions. The act does not, however, implement robust training requirements for aged-care workers, as was recommended by the royal commission. Those workers in all aged-care centres around Australia need to receive explicit training, as recommended by the royal commission, on cultural safety, trauma informed care, dementia care and palliative care to ensure high-quality care for all aged-care recipients.

Further, the bill lacks direct provision for services tailored to culturally and linguistically diverse groups. This oversight can lead to inequitable access to care for older people from diverse backgrounds, many of whom will have unique needs and preferences. In my electorate of Kooyong, nearly 20 per cent of the community are Chinese Australian. There is no dedicated Chinese residential aged-care facility nearby and only two in Melbourne. The bill does enshrine the right to services in recipients' preferred language, and we know that older people—particularly those with cognitive loss, but all older people—tend to revert to their language of childhood in late adult life. So we need to be able to make sure that all constituents can receive aged care in a setting where the people caring for them speak their language—in this instance, Mandarin. But there's no guarantee for my Chinese Australian constituents that appropriate aged-care facilities will be available for them when they need that. The fact is that best-practice care really necessitates future planning and taking into consideration all aspects of the patient population, but there is no facility in this bill for that.

Finally, the use of automated assessment tools for determining care needs is another area of concern, and many members of my community have expressed concern about this. These tools, many of which are AI based, may not adequately consider the complexities of individuals' disabilities and comorbidities. If they don't capture all of the needs of the patient, how can they possibly provide all of the care required?

Further, the bill expands the collection, use and disclosure of information within the aged-care system. This raises important data privacy considerations. It authorises information sharing between a number of entities, including government agencies, regulatory bodies and law enforcement agencies. While some data sharing might be necessary for coordination and oversight, the broad scope of the bill does raise concerns about potential misuse or unauthorised access to sensitive personal information.

The bill includes provisions for whistleblower protections, aiming to encourage the reporting of suspected contraventions. That's a good idea, but the effectiveness of these protections in practice, particularly the requirement for anonymity of complaints and preventing victimisation of people in an aged-care setting, will require careful monitoring. The bill promotes transparency by requiring publication of certain information about aged-care providers, such as details of banning orders. While transparency is crucial for accountability, it's really important that we strike the right balance between public access to information and protecting the privacy rights of vulnerable individuals.

The introduction of co-payments has raised concerns for many of my constituents who are concerned that we are potentially creating a two-tiered system in which those who can afford to pay will receive better services. It could lead to inequitable access to quality care, particularly for those with higher needs, who may be discriminated against by providers.

In conclusion, while the Aged Care Bill 2024 does represent real progress in addressing the needs of Australia's aging population, it falls short in a number of critical areas, particularly in supporting people from culturally and linguistically diverse backgrounds and those with a disability. The lack of enforceable rights, the separation of services and the inadequate provision of specialist disability support are significant concerns that really need to be addressed. We need to advocate for a more integrated and comprehensive approach which will ensure that older people with a disability and older people from other cultural and linguistic backgrounds can always receive the care and the support that they need. All Australians deserve the very best aged care, which has to include clear definitions, enforceable rights and a commitment to equity and inclusivity in provision of our aged-care services.

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