Zoe Daniel (Goldstein, Independent) Share this | Hansard source

It might be said the health of a society can be judged on its treatment of its elderly people. On that score, Australia's record is far from perfect. A quarter of a century ago, not that long ago, we were treated to the horrors of nurses ordering kerosene baths for nursing home residents. What followed was a litany of cases of neglect in aged care and, at worst, abuse. The COVID-19 pandemic exposed even more shocking failures in the treatment of people who deserve the utmost respect in their advanced years. After decades of indifference to the operation of Australia's aged-care industry, we could no longer go on looking the other way, ignoring how the system was failing our most vulnerable citizens—our elderly.

The Royal Commission into Aged Care Quality and Safety did not call its interim report Neglect without good reason. Evidence to the commission revealed a government-commissioned report that estimated there were no fewer than 50 sexual assaults per week in aged care, the majority being perpetrated by other residents with dementia and cognitive disabilities. Under existing regulations, there was no requirement to report or even register those attacks and still it goes on. In February, the Aged Care Quality and Safety Commission reported more than 1,000 cases a month of neglect in residential aged care. A 'concerning spike', the commission called it—concerning indeed. In what other sector of our community would we tolerate this failure of care? That quarterly report on performance standards confirmed 3,134 cases of neglect in residential care homes and 556 in home care. Rates of neglect have increased since late 2022, when 1,861 cases were reported by the commission.

It's very likely that the spike in cases was a consequence of providers taking the issue more seriously and being more diligent in reporting incidents to the commission. If so, it's better that we know the true situation in our residential aged-care homes, but it is still not good enough. Nor is the process leading to this legislation. Yes, there was an exposure draft, but the bill we have before us is the result of closed-door negotiations between the government and the coalition. No sunlight shone on those discussions. Again, this House is being asked to put the cart before the horse. The Senate inquiry currently underway gives the opportunity for the quality of the legislation to be publicly assessed and for stakeholders to have their say. But, again, we are being asked to vote on a bill before it has been fully scrutinised. The Senate inquiry is also arguably being conducted in such a rush that stakeholders are still scrambling to make submissions, even as hearings are already being conducted. Given the level of neglect and abuse that has been exposed in aged care, this is concerning.

Australians facing the prospect of accessing residential aged care need to have full confidence that the horrors exposed by the royal commission are a thing of the past. That said, it seems most stakeholders—both representatives of aged-care facilities and services as well as representatives of the aged themselves—have welcomed the legislation as a step forward. The Council on the Ageing, for example, says there have been improvements since the consultation around the exposure draft. However, COTA says:

It is still our view that the Act should proceed, hopefully with amendments … to improve its approach and implementation.

COTA applauds the direction of the legislation on several fronts. There is the focus on person centred quality care; the availability of services to all Australians, irrespective of their means; a stronger regulator to monitor and enforce provider obligations; and a complaints process focused on resolution, headed by an independent commissioner.

It was originally envisaged that providers could face criminal penalties for substantial breaches of good practice and good standards. This was central to the concerns raised with me by providers in Goldstein, who argued that they would provoke an exodus of capable workers from the sector due to fears of criminal punishment. These criminal provisions have been dropped from the bill. Instead, there would be civil penalties for providers, including fines of more than $1.5 million for serious failures that lead to a person's death. However, COTA points out:

Most civil penalties proposed in the Act will require the Commission to initiate and successfully prosecute poor practices by providers.

We are concerned by the curtailing of the Commission's ability to issue infringement notices—

or fines—

compared to both their powers today, and the broader powers originally proposed through the exposure draft.

One question is whether the commission will have the resources to ensure it is effective. It costs more money and takes more time to initiate legal action than it does to issue infringement notices. Infringement notices might also have a greater deterrent effect than the threat of legal action, with offenders knowing they have the resources to delay legal action rather than to clean up their act or act more responsibly in the first place.

The creation of an independent complaints commissioner is welcome. It's important that, in a change from the exposure draft, the commissioner would have the powers to secure an enforceable undertaking from a provider as part of the resolution of complaints. COTA, though, would like the legislation to go further, to include mechanisms to ensure mediation and consultation as part of the complaints process are enshrined in the legislation. Should that be the case, we could be well and truly assured of the minister's prediction that the commissioner would be:

… a voice to raise issues, to have them heard and taken seriously, with the expectation that providers will work to address them or face serious consequences.

We will know for sure once the Senate has completed its inquiry and made its recommendations, and once we have seen whether the government acts on these concerns.

The Inspector-General of Aged Care—who's responsible for overseeing the administration, regulation and funding of the system by government—already has reservations, stating in a submission to the Senate inquiry that the government has fallen short of implementing the quality of safeguards envisaged by the royal commission. The submission says:

The Office does not consider the approach taken in the Bill to embed high quality care meets the standard envisaged by Royal Commissioners.

…   …   …

The Office considers the approach taken in the Bill to safeguard individuals' rights to be largely aspirational. In particular, the Office is concerned that it will not implement a rights-based framework as clear or as robust as Royal Commissioners envisaged, because the pathways available to individuals to understand and assert their rights lack the necessary vigour to drive real change.

COTA also believes there are shortcomings—for example, that the statement of rights should apply equally to government officials or those contracted to implement their functions in the same way as is being proposed for aged-care providers. COTA also says it's concerned that 'the new legislation does not have an exceptional circumstances pathway for people under 65 years of age to access the most appropriate service for them'. That may be the aged-care system in particular for sufferers of early-onset dementia. COTA adds that 'while supportive of the fact that 99 per cent of participants in aged care will be over this age, we remain concerned that some younger people could be left unsupported as there is no alternative'.

One of the big remaining questions is whether the new arrangements will make the aged-care system financially sustainable and more equitable. I think all MPs in this place know that many aged-care homes are struggling. The government and the coalition agree it will, so either way the bill will pass. It is right that those with more should pay more. It's also right that the maximum amount people will contribute to their care at home or in an aged-care facility will increase from the current lifetime cap of $79,900 to $130,000. And it's sensible that the new cap will be indexed to inflation. Those in residential care when the reforms begin next year will be exempt from the new fee structure, as will anybody who was on the waiting list for home care when the package was announced last month. That decision is also welcomed. Introducing more means testing arrangements for everyday living and nonclinical care costs should allow taxpayer funding to better target support towards residents with less financial means.

There is no doubt that this bill is a step forward, and a considerable step at that, for a sector that has been plagued with problems and scandals for decades. However, some of the remaining issues with the legislation could have been sorted out so that we wouldn't have legislation that will change once the Senate inquiry has concluded.

I finish by saying that there are profitability and workforce issues in aged care, and the system remains a huge challenge for families to navigate; I'm sure every staffer in an electorate office around the country would agree with that from their dealings with constituents. The system is very complicated. There is much more to do.

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