Rachel Siewert (WA, Australian Greens) Share this | Hansard source

As Australia’s population ages, we face an increasing responsibility to ensure that older generations are provided with quality, accessible aged-care services. The Australian Greens firmly believe that the provision of these services should be designed to ensure that people of all ages are an integral part of our communities, that they are able to live their lives in safety and comfort and that they can maintain strong links with their family, friends and broader community.

The government must play a central role in coordinating and regulating the delivery of aged-care services. This regulation should give us confidence that residents will be treated respectfully and will be able to live fulfilling lives. Regulation should give us confidence in the standard of aged-care services infrastructure, both now and in the future. Regulation should also contribute towards a good working environment for staff and a viable financial framework for providers of services. However, the regulatory environment is only just keeping pace with the current model of aged-care services. It is not facilitating the essential restructuring required to assist the sector to provide for a changing demographic, and many older Australians are faced with a lack of choice about where they will live in their older age and they are forced to leave their communities.

Being a Western Australian, I have heard the same stories that Senator Cormann has. In fact, I have heard of people having to live up to 20 kilometres away from their loved ones. Whereas they had been living quite close to their loved ones, the only place they could find in care was, in some cases, up to 20 kilometres away. I heard another story of someone having to wait nine months before they found suitable aged-care accommodation. That is just a small example of some of the stories that I have been told. This is not an acceptable outcome; yet it is the one facing many people at the moment, and it is a situation that is very likely to worsen over the coming decades if more urgent action is not taken. About 15 per cent of Australia’s population is currently aged 65 and over. That proportion will be almost 30 per cent by 2050.

Many submissions to the Senate inquiry into this bill, the Aged Care Amendment (2008 Measures No. 2) Bill 2008, raised the issue of the need for broader reform and stated that the amendments to this bill were not sufficient to help the aged-care sector to move forward and provide the types of residential services that ageing people should be able to access. As acknowledged earlier, we believe there must be a role for government in regulation and compliance in aged care. Unfortunately, at present, the government seems more focused on sanctions and a punitive approach which seems to be missing the real crisis that is affecting the aged-care sector. Beds are being handed back, beds are not being taken up and there is a lack of choice for older Australians. There are very significant viability issues amongst providers. We have seen a number of reports recently raising those viability issues. I will just mention as an aside that, when we raised these issues in estimates, the department seemed to be in denial about, for example, beds being handed back and not being taken up. There are problems in recruiting, retaining and training staff. There are problems with the staff pay levels. The impact of negative publicity around residential homes has also had an effect on staff who are already struggling with low morale in the face of these very significant viability issues.

This bill introduces changes in the regulation of the residential aged-care sector by amending the Aged Care Act 1997 and the Aged Care (Bond Security) Act 2006. These amendments are designed to address, as the minister stated, current inadequacies in the legislation and to enhance protection for residents. They amend a number of areas, which I will go through. We acknowledge that some of these areas do need to be fixed but in other areas, while we acknowledge they do need some reform, we are concerned about the amendments in relation to them. The provisions on bonds have been extended to provide better protection of the payments made by residents when they enter aged care. They now cover a wider range of payments that were previously not protected. This move was supported by consumer groups. The Australian Greens welcome this move to improve the protection of bonds and other types of admission payments. For many older Australians, the bond they have paid is equivalent to their life savings. It is only right that the legislation should seek to protect this money. So we support that.

This bill also widens the area around police checks. The detail of some of the issues concerning police checks will come with the amendments to the legislative instruments. These were not available for providers, consumers or the Senate committee inquiry to view and, therefore, are not available for the Senate to look at during its review of this legislation. This has caused some concern amongst aged-care providers because, without the detail, they face some uncertainty as to how the provisions will impact on them and the care they provide to residents.

Police checks cost the industry a lot of money. While the Greens are not saying that they are not needed, we are highlighting it as an issue and saying that anything that is put in place needs to be cost-effective. Considerable administrative effort is taken to meet the requirements for police checks. We hold the government to its statement in the inquiry that service providers will be given very clear guidelines as to who must provide police checks. We also call on the government to ensure that the most cost-effective administrative requirements are put in place, including the use of electronic communications wherever feasible. Concerns were expressed to the committee inquiry about the extended coverage of the checks, particularly for contractors in emergency situations. But the department assured the committee that existing requirements for emergency contractors would remain the same, and we are also seeking the government’s assurance on this.

The issue of reporting missing residents also became a very contentious point in the submissions and in the inquiry process. This was raised by both aged-care providers and consumer representatives. Aged-care providers will now be required to report missing residents to the department. This is in addition to the current requirement where the police are notified once, when it becomes clear that a resident is actually missing and not just visiting family or friends. When initially giving this evidence to the inquiry, the department was unsure about what action would be taken by departmental staff should a resident be reported missing. This has since been clarified, but only partially. The department states that in some cases they might take no action at all, yet in other cases they might apply sanctions. However, the sanctions themselves are dealt with in legislative instruments that we are yet to see. This was also of concern to providers.

While everyone agrees that the safety of residents must be assured, the fear expressed by both providers and consumer groups is that the threat of sanctions that will result should a resident go missing will place pressure on providers to restrict the freedom of residents. This goes against the very basic right that residents have to be treated as adults and to have freedom of movement. Residents are as entitled as any other adult to visit family, to go shopping and to visit libraries, parks or restaurants. Being aged and in need of residential care should not mean being locked up. We urge the government, when drafting the principles that will contain the detail of the sanctions, to be aware of the potential for sanctions to pressure providers into restricting the freedom of residents. We seek clarification about what types of sanctions the government is talking about and in what circumstances they would be applied. This is clearly an example where the threat of sanctions does not lead to better models of service delivery. In fact, the impact on residents may be completely the opposite, with the risk of residents being further marginalised and isolated from their communities.

I now turn to the amendments to the Aged Care Act that have been described by the minister as necessary in capturing the more complex financial and management structures of owners and operators of residential care facilities. As part of these amendments, the definition of ‘key personnel’ has been broadened in an attempt to include all those who might have decision-making responsibilities. Key personnel are judged on their financial and managerial performance and that they do not have criminal records when seeking to be approved as a provider. We definitely understand the need for expanding this definition to assist in regulating aged-care providers with complex corporate structures. But the approach taken risks an increased burden on the majority of aged-care providers who are in fact not-for-profit organisations.

Many not-for-profit aged-care providers are religious organisations. Their management structures are often made up of voluntary boards of management. In one case described to the inquiry, the board had about 300 members. It is highly unlikely that each of these persons would be actively involved in the operations of the aged-care facility. This might also be the case for other religious persons who have a senior role in the church but who do not have a decision-making role in the provision of aged-care services. The minister has stated that, under the new arrangements, church leaders who do not involve themselves in the executive decisions of the aged-care service will not be included. Yet the amendment has created uncertainty about whether these people are required to be identified as key personnel. This broadened definition of ‘key personnel’ represents a considerable administrative load on both the provider and the department. We therefore seek to amend the bill so that it specifies that membership of a voluntary management board does not necessarily imply that such members should be considered key personnel.

Overall, this bill concerns the Greens because the current regulatory environment is increasingly reliant on punitive measures and sanctions rather than adopting a consultative approach that would assist providers to meet the complex nature of the changing demand for aged-care services. As I articulated earlier, we do understand the need for regulation and support that, but we sometimes think it may go too far. Better models of service provision are not going to emerge from an increasingly punitive approach being adopted by government, given the crisis that is emerging in the provision of aged care. It is a mistake to believe that punishment and sanctions alone will lead to best practice in the delivery of aged-care services. Even where they are necessary, particularly in the case of harm to residents, it is incumbent upon the department to work consultatively with the care providers for the benefit of the residents and their families. In particular, the additional provisions for sanctions in this bill have caused a number of concerns amongst providers. Items 115 to 118 seek to amend the act so that the secretary, when making a decision to impose sanctions, must consider, in the case of 116, whether the noncompliance would threaten the health, welfare or interests of future care recipients; and, in the case of 117, the desirability of deterring future non-compliance. In the case of 118, the new subsection provides that the secretary’s paramount consideration must be whether the noncompliance threatens or would threaten the health, welfare or interests of current and future care recipients.

In evidence to the inquiry, providers found it difficult to accept how the future needs of residents would be assessed and stated that taking into account future acts placed them in a situation of having sanctions imposed in response to events that had not yet occurred. The Australian Greens remain concerned about the provisions relating to these possible future compliance issues. We believe they remain vague and ambiguous and are thus open to subjective interpretation and likely to result in uneven application. It is not at all clear how the secretary can make decisions and impose sanctions based on an event that has not yet occurred. We do not consider that an emphasis on this approach can be productive, and in those situations we believe a better approach would be a cooperative approach with the providers involved. The example that was raised during the committee inquiry was on the need for collection of bonds, for example, and where providers had failed to return bonds. The other amendments that are being made in a more direct approach to the system of bonds would be a more appropriate way rather than these rather vague and ambiguous amendments.

As their submissions to the Senate inquiry indicated, many of the providers and consumer groups giving evidence objected to various aspects of this bill. But by far the most consistently expressed concern was that the bill did not provide a way forward to address the serious long-term concerns of the aged-care sector. These issues are clearly described by the recent Productivity Commission report into trends in aged-care services. According to the Productivity Commission:

Over the coming decades, pressures on the demand-side of the aged care market are expected to accentuate a number of weaknesses in the current policy framework … There are concerns that the system is overly fragmented and difficult to access and navigate …The ability of older Australians to exercise choice is limited by regulatory and financing arrangements …

The Grant Thornton report also put it very clearly: ‘The regulatory and pricing framework now threatens the viability of the aged care sector.’ At the moment, the sector is experiencing low rates of return added to a shortfall of capital available to redevelop and update existing facilities and to construct new facilities. This limits the choices of the aged when they are seeking care. The situation will only get worse as our population ages and also as the baby boomers come down the track and start moving into aged care and expecting different aged-care services and a different way of accessing aged-care services.

We believe there is a need for a new model of service delivery for the aged in Australia. The Greens would like to work with providers, consumers and the community and the government to build this new model. But the preparation for this model must start now because we are dealing with a significant crisis threatening the future of aged-care delivery in Australia, and the sooner we start dealing with that the sooner we can start delivering better outcomes for the ageing community of Australia.