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Community Affairs Legislation Committee
10/10/2018
Aged Care Quality and Safety Commission Bill 2018 Aged Care Quality and Safety Commission (Consequential Amendments and Transitional Provisions) Bill 2018

BARTONE, Dr Tony, President, Australian Medical Association

BROOKE, Dr Nicole, Member, Australian Association of Gerontology

HOWE, Dr Anna, Consultant Gerontologist

KIDD, Dr Richard, Chair, Australian Medical Association Council of General Practice and Australian Medical Association Council Queensland Council of General Practice, Australian Medical Association

LEONG, Dr Ronald, Honorary Secretary, Australian and New Zealand Society for Geriatric Medicine

MADDISON, Dr John, President-elect, Australian and New Zealand Society for Geriatric Medicine

O'SULLIVAN, Dr Robert, Treasurer, Australian and New Zealand Society for Geriatric Medicine

TOY, Mr Luke, Director, Medical Practice Section, Australian Medical Association

Evidence from Dr Bartone, Dr Kidd and Mr Toy taken via teleconference—

CHAIR: Welcome. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. The committee has submissions from the Australian Medical Association, the Australian and New Zealand Society for Geriatric Medicine and the Australian Association of Gerontology. I now invite you to make a short opening statement and, at the conclusion of your remarks, I will invite the committee to put questions to you.

Dr Maddison : Thank you. The Australian and New Zealand Society for Geriatric Medicine represents geriatricians across Australia and New Zealand. We have grown very rapidly, from about 200 members when I joined about a decade ago to now over 1,200 members. So there is considerable growth in our workforce and capacity. By the nature of our work, a lot of our patients are in receipt of Commonwealth-funded aged-care services and we interact and see patients on a day-to-day basis. It is our assertion that geriatricians have a key role in assessing the safety and quality of aged-care services provided by the Commonwealth.

Perhaps it is intuitively understood by everyone here in this room today but it is worth stating again that the reason that older Australians need these services is not because of social problems or because of a lifestyle choice; it's because they've got medical problems. By and large, all of these patients who are in receipt of these services, particularly in residential care and in the more complex end-of-home care have multiple medical problems with multiple treatments and multiple medications that need to be managed. Sorting out these complex medical problems as people age is made more complex by the fact that old Australians don't present in the same textbook way as a younger person presents. Rather, they present with what we call geriatric syndromes. They come in with falls or confusion or loss of function—not saying, 'I'm sure of breath', or, 'I'm having a heart attack.'

In the same way that cardiologists or gastroenterologists are specialists in their respective areas, geriatricians are expert in the medical care of older patients with complex and multiple medical problems. Our training is very similar to a cardiologist in terms of the years and rigour of training that we undergo, and we are all members of the same college. It is our society's position that no older Australian should enter into residential care or receive the complex end of community supports for want of timely and accurate diagnosis and management of these reversible medical causes of disability. Access, therefore, to geriatricians and multidisciplinary care, involving the patient's GP as well, is a key component to this.

With regard to these Commonwealth packages, there are three key time points when these complex assessments can occur. The first opportunity is prior to entry into one of these packages or into residential aged care. That might be achieved through mechanisms such as ACAT—and, increasingly, we are concerned that geriatricians have less opportunity to have input into ACAT assessments to sort out these complex medical problems. The second opportunity is at entry into residential aged care or complex home support packages. The third opportunity is when there is a significant deterioration or change in clinical state. It must be obligate on our system that these assessments occur to address this unmet medical need.

I work in South Australia. I work in the northern part of Adelaide. Oakden is part of the local health network where I work. I am the director of aged care, rehabilitation and palliative care in that network—although I didn't have responsibility for Oakden, as it was considered at the time a mental health facility. But certainly my team went in as part of the emergency response to Oakden at the beginning of 2017. We performed a comprehensive geriatric assessment on 49 of the then residents in the Oakden facility. The majority of those were in the Commonwealth aged-care beds. In each patient we saw there were multiple medical recommendations to be made, typically at least five or six specific medical representations in each case. This gap in the medical care of patients in Oakden in particular, but I suspect in other residential aged-care facilities, has not been brought out in the public discussions thus far around Oakden and other problems in aged-care facilities.

The two cases that particularly brought this home were elderly patients in Oakden who the team at Oakden were trying to manage as best they could, and they simply failed to recognise that these two patients were at the end of life and needed end-of-life care under a specialist palliative care unit. This exemplifies perhaps how hard it can be to recognise the impact of these complex medical problems in frail elderly people. Any person in receipt of a Commonwealth funded aged-care service, particularly at that complex end, must have a specific, detailed plan in place to facilitate high-quality, multidisciplinary medical care, and that should include access to geriatric medicine if required.

Given what I've just told you—that people require aged-care services due to medical conditions—it's imperative that the management of medical conditions is a key consideration when assessing safety and quality of these aged-care services. To that end, specifically in regard to this legislation, we believe it should be required that a member of the advisory council be a geriatrician, as recognised by the Medical Board of Australia, as part of its membership, which would require just a slight modification to the current wording of the legislation.

Dr Howe : As I said, I've had a long interest in the program. The figures about geriatricians make me very reassured that the system has changed and improved, because back in 1976, when I started in the field, and in the early eighties, when I was involved in the McLeay inquiry, there were a handful of geriatricians in the country. I know the system has increased but not on the scale that the geriatric presence has. Many of the other things have improved, and inquiries like this one have been critical in driving those changes.

I'd really endorse the comments that were made earlier about not delaying and waiting for the outcomes of this and some of the other inquiries and steps that are underway. In fact, a number of recommendations from the Oakden report have already been implemented, so I don't think we have to wait. Perhaps by the end of the royal commission things will have moved on, and instead of having several bits of legislation that have developed over the years—the Living Longer Living Better legislation and so on—we might be looking at a whole new aged-care act about 2022. But that would be something that would bring all of these different things together.

The bill will obviously be fairly broad. The supporting regulations, however they're phrased, and the operationalisation are the areas that I really want to comment on—the improving of standards. Standards have improved, but there is certainly room to go further. My submission was made to the Oakden inquiry rather than specifically on the bill.

In terms of the role of the new commission, in data collection and so on, I think that there is a risk of going overboard with more data and less information. What is probably needed to rate homes is maybe 10 or 15 critical indicators that need to be developed on the basis mostly of information that we already have. One of the problems at the moment is you can see there are 3,000 or 4,000 complaints made to the agency, but we don't know whether there is one for each of the 3,000 homes or whether half the homes have none and there's a small group of homes that have an awful lot. That tells us a lot more about the patterns of quality, and then we can investigate the factors behind this. Just collecting more and more information, I think, is not going to get us there.

I think it would be possible to divide the population of residential care facilities into some groups. The middle group—the fair average quality, as they call it in wheat grading, I believe—would maybe be about 40 per cent that are providing adequate care and burbling along. Then there is a group doing better, maybe 20 per cent, who are taking active quality improvement steps that can be reported, or that are already reported, in the quality assurance process so we've got that information about what they're doing. Then there's maybe 10 per cent who are doing really well, who are exemplary. They don't have any complaints, and so on and so forth, so they stand out. There is then a group below the average group who are pretty borderline. They may have occasional complaints. They may get a notice of noncompliance when the assessment comes around and so on, and they're not very active in improving quality. We can flag them for attention for improvement. Then there is the bottom 10 per cent. A UK researcher who was recently looking at quality in Australia and the UK, Dr Lisa Trigg, called them the bottom feeders. They are the ones who have persistent problems that are not remedied and who have lots of review visits. We know about all of these things; they're all documented. Some are eventually sanctioned. Some clean up their act and get accredited for a shorter or a longer period. Some get out of the business.

Driving all of this, one of the things that has happened over time is that the assessment process has lost a bit of the fear factor. I don't think homes should be terrified, but certainly the introduction of all unannounced visits is a way of keeping them on their toes. I think we need to look at how the system is going to work to drive quality improvement both with rewards for doing well and with a bit more consciousness of, 'You'd better watch out.' That, I think, has slipped quite a bit over the years. The system has become perhaps more complacent. It's very hard, obviously, to close down a home. In the Oakden case, the report shows very clearly there were recommendations made by the assessors to sanction it or to close it down, but it took about six or seven years before that actually happened. What went on in the further decision-making? What is the point of having quality assurance assessors going out and reporting very negative findings if nothing happens? I think we need to know very clearly where the teeth are, and the teeth should bite fairly quickly, not three or six years down the track. That was one set of comments I wanted to make in opening.

Another one is about the role of nurses and nursing ratios, which many people seem to think are required. They're not set out in the standards. Very interestingly, there's a very varied experience with staffing ratios internationally. In England they don't have them. In the Netherlands they do. When you look at the US, there is a scattering across the different states. When we talk about ratios, what do we actually mean? I looked at some figures from the National Institute of Labour Studies report, trying to work it out. If we took the total number of residents and the total number of registered nurses, my calculation is there is one registered nurse to every eight residents and one personal care assistant to every two residents. Now that doesn't really tell us anything at all about what is going on. So it is the average of what is, but we need to look at the variations—which homes have much higher staffing levels and which have much lower? Interestingly, the NILS study has all of that data. Despite discussions with the Commonwealth department to do some analysis of this, no-one has shown much interest.

I think there are a few questions to be asked as to why the department has really limited the range of further research out of that outstanding survey. I think it's the fourth one now. Again it is terrific data, but where is the information and analysis to make use of that? Homes could easily be required to report, as one of the measures that you might have for a rating, their levels of staffing against a benchmark. It's not just saying, 'We've got the ratio and we meet it,' but saying what you have actually got.

What are some of the other methods? There might be normative approaches of expert opinion—not what it is but what it should be, so, 'For residents with these care needs, this is what expert opinion and so on says.' One of the criticisms there is that some people see it as unconstrained by finance, but I think the question is: what is the best you can do with X amount of dollars and what mix of staff? Then there are a number of resource allocation models or staffing tools that are increasingly being developed that homes can implement in relation to the ACFI scores. Because they're very detailed they can detail the care needs. These systems just don't tell you the numbers and the mix of staff; they can also even tell you what time of day you need more people and so on. If we are looking at ratios, we could be much more sophisticated there.

Look at the role of nurses as well as geriatricians. The geriatricians are certainly sharp eyes coming into residential care facilities—nurses on the floor also are. I think nurses do need to be empowered. They shouldn't be cowed by the management and so on. I think it's peculiar that nurses are able to take action in the terrible kinds of cases we see in the biannual reviews of horrors in nursing homes on the ABC, the radio and so on—and there's not much interest in the subject in between those times I might say—but what is the role of nurses? Their professional responsibilities are stated quite clearly as to how they should deal with these problems. Whether it's with the recent Four Corners programs or other incidents, what action are nurses taking and what action is then being taken to enforce nurses, management or any other staff member to take responsibility?

I'm not aware that any charges have been laid against individuals or how these instances have been resolved, whether through criminal proceedings or other proceedings. I think it would be very good if the ABC had a third program to show us what the outcome was, as well as a royal commission, and about what is happening more immediately to resolve those situations. That comes back to having some teeth to do things.

CHAIR: Thank you. Who's next?

Dr Brooke : Thank you for the opportunity to speak to you today. I acknowledge the traditional owners and ongoing custodians of the land. We pay respect to the elders past, present and emerging. We acknowledge the time of members and the panellists to protect the vulnerable in our community.

I'd like to focus on three main things: the first one is evidence; the second one is clinical governance; and the third one is accountability. There isn't a requirement in the commissioner's role to use relevant and timely evidence to support its function. There needs to be information. Further to the previous submission, data is there, but information isn't readily available and accessible. It isn't being used to improve practices. It may be kept within the complaints commission's portfolio, but it is not being shared so that we can learn from it.

Research in aged care is poor. There isn't a good body of knowledge, so, unfortunately, a lot of providers in community and residential care are starting to merge acute care with subacute care and make some assimilations, which isn't best practice. We really need to drive a very clear understanding of what is best practice around clinical outcomes and quality outcomes.

The review of legislation needs to occur not just with crisis. We know that the 1997 act came out of a crisis. We know the royal commission has come out of crisis. We have been speaking as an industry to the challenges of a contemporary piece of legislation for a long time, and it needs to be able to be responded to more effectively. The current bill doesn't actually stipulate that a review of this legislation needs to occur. With the acuity changing and the expectations of the community and the needs of our residents and customers changing, we know that the changes are happening more substantially than ever before. With the changing population and cohort that we're expecting, we need to be more fluent in our responsiveness.

Open disclosure needs to be supported by the act. The aged-care sector operates as a federal sector, not a state sector. Right now, there is no protection for us to share our learnings and to be open and transparent. The act talks to open disclosure as a critical part. However, if you're going to have open disclosure mentioned in the legislation and the standards then we must have a supportive mechanism to do that. At the moment, the only way to get around that is to call privilege with a legal representative, and, to me, that doesn't speak to a good set of knowledge. It's speaking on behalf of not only the sector but also the commission. As it sets up its clinical advisory function, it needs to have an ability to share complaint data and to share learnings from critical incidents that it investigates. It's with learning that we will improve. The hiding and the lack of transparency of information make for a very difficult improvement and quality framework.

I would just note the complexity of this area. The Australian Institute of Company Directors actually runs a course for corporate governance, and the case study it uses is aged care and residential aged care. It acknowledges that, of all the industries that they could pull out, aged care is fundamentally a very complex industry to work with—with politics, with economics, with health. So it shouldn't go understated.

In terms of clinical governance, the acuity within the sector is fundamentally increasing. Probably the more risk that we have is within community care—with less transparency of audits and the like, less presence of registered nurses and no requirement for medical practitioners to review community care clients. They're very exposed right now. Our current standards deem it fundamental, and we support the clinical governance framework being part of that legislation. However, evidence and evidence based practice to support that needs to be improved. The bill should require the commission to provide leadership in this area—not just a function of it, but leadership—and open disclosure goes to that, as well as looking at resources. If you look at the resources that are available in community care and residential care, many of those resources have not been reviewed in more than 15 to 20 years, including medication management, palliative care—you name it. It's very hard to stay contemporary if there's not leadership from the commission.

Consumer-directed care has provided a new environment for us. To provide best care, which is stipulated within the standards and fundamentally expected within the industry, it also speaks to choice. One thing that hasn't come to fruition is the dichotomy between best care and choice. We are seeing examples of where customers have choice of how they use their package in the community, for example, and we expect to see that within residential care. They will choose some very high-risk practices to happen in a home with unskilled workers—for example, complex debriding that they refuse to have registered nurses to provide in their home. They refuse to seek medical attention when they can't get nursing in or medical advice in. They've got nebulised morphine and stuff happening in their home, and we can't support that. When there is choice, clinical governance needs to take fruition. In CDC, it's opening up very much a dichotomous world of what people are willing to pay for and then what the best care should look like.

The next one is around accountability. In the current legislation, the sanctioning powers sit with the secretary. I would assume that there has been a miss there, and we would seek that the commissioner should have accountability to sanction a facility, if it has information at hand, rather than escalating it to the secretary. That needs to happen in a timely way. We need to look at accountability and responsibility rather than passing the buck between different areas of the department. The role of the commissioner isn't just to manage at-risk sites and manage the compliance risk; it's also to provide leadership. We feel that that isn't currently supported within the new act. Thank you.

Dr Bartone : I'm the president of the AMA and I'll be sharing the opening address with Dr Richard Kidd, who is the chair of the AMA Council of General Practice. Thank you for this opportunity to address the inquiry this morning. There is no escaping that Australia's population is ageing and increasingly so. As it ages, the proportion of the population with complex and chronic diseases will also increase significantly. Older people should have the same access to medical care as the rest of the population and in appropriate care facilities and environments as their conditions require. The aged-care system needs to be appropriately resourced to ensure the same level of access to care. Failure to do so will often result in unnecessary hospitalisation, increased healthcare costs and—equally and as important—a substandard quality of care.

The AMA has repeatedly called for an aged-care commission in many recent submissions to various inquiries, task forces and reviews. Such a commission should have a number of roles and not just regulatory. The AMA has always said that an aged-care commission needs to have the appropriate resourcing to facilitate a clear governance framework. Further more, we have always maintained that the aged-care system should be led by an overarching independent body. We recognise that aged care is the purview of the Commonwealth. However, it is clear that there is a lack of coordination and information-sharing between the various jurisdictions. Therefore, when complications arise, often because of delayed or unrecognised signs of illness as a result of overstretched or under-resourced or inappropriately-trained facility staff, an ambulance transferred to ED is often the ultimate outcome. This is not only distressing for the resident and for their family but also leads to additional costs to state jurisdictions. It is poor clinical care.

This lack of coordination is best illustrated by the inefficient sharing of complaints between the Aged Care Complaints Commissioner and the Australian Aged Care Quality Agency. The issue is there is no overarching regulatory body. This has the end result of significant confusion and misinformation for the providers, the residents and their families. This is totally unacceptable and not only is it inefficient but also results in poor outcomes persisting and, ultimately, lack of identification of inappropriate practices and appropriate remedial action. This lack of communication between existing regulatory bodies underlines the reasons that we need the establishment of an overarching body.

On this point, let me be very clear: there is a fundamental and imperative need for an Aged Care Quality and Safety Commission. As previously stated in our various submissions, such a commission should have a number of functions, including but not limited to the overseeing of relevant bodies to make recommendations on how to improve the aged-care system. It should be working with industry to ensure adequate supply of a well-trained workforce; centralising the information sharing between all relevant areas and identifying areas of inefficiency; regularly assessing resources allocated to the health of older people; making recommendations to federal government and to the sector to ensure the level of investment is sufficient for both the funding of an appropriate mix of aged-care services in aged-care facilities as well as home care packages; and upgrading facilities to a sufficient standard.

Such a commission must seek to significantly improve the collaboration between all levels of health and aged-care systems. This collaboration is fundamental and will ensure safe and high-quality care for older people. These functions must also specifically include education around quality and clinical governance for aged-care providers and must advise on clinical regulatory issues. It must include a medical practitioner, and we maintain that that should be either a GP with experience in aged-care facilities or a geriatrician. This medical practitioner would be in an advisory role to help improve the care and clinical governance. At this point, I would like to hand over to Dr Richard Kidd to continue the submission.

Dr Kidd : Thank you for the opportunity to speak with you today in support of an Aged Care Quality and Safety Commission. I'm a GP who has been working extensively in aged care and palliative care since 1989, at one time visiting hundreds of residents in 20 different aged-care facilities as well as doing many home visits to frail, ageing Australians. One meaning for 'commission' is to bring something into a working condition. A vast array of poorly connected services and regulatory bodies in federal, state and local domains, combined with lack of an organ that collects all the important data, acts on the data in a timely way and provides clear vision and direction, is letting down our older people who are suffering preventable harms.

The current situation is like the seven blind people around an elephant describing what they feel and what they believe the elephant to be. For one it is broad and flat; for another it is a skinny, long, twitching rope; for another it is a long, smooth, curved, bone-like projection; and for another it is a rough, round, substantial pillar. But none of these blind people can see this large but unhealthily overweight animal who is in pain, with wide, reddened, scared eyes looking to them for assistance and with a painful infected foot oozing blood and pus—sick and developing septicaemia. We need an Aged Care Quality and Safety Commission just as this poor beast needs a elephant keeper or zoo director who can see the whole picture and ensure the right care is given at the right time by the right people, respectfully and kindly; that the accommodation is appropriate; and that the visitors know that they cannot and should not abuse the elephant or the carers.

I have been watching the disappearance from the aged-care workforce of registered general nurses, experienced and skilled in aged care, as well as physiotherapists, speech pathologists and occupational therapists, and their replacement with a relatively unskilled workforce of personal carers who are not trained to observe and report the signs of clinical deterioration. The loss of nurses and allied health has gone past the point of crisis, and there is a desperate need to restore—which means now to greatly increase—the number and ratio of these professionals in the workforce.

In 1992, two experienced nurses and another experienced staff member assisted me in safely amputating a gangrenous foot from a very frail 96-year-old in a nursing home who would not have survived a general anaesthetic. She did very well and had a good-quality life until she was 104. This year I had to debride half a kilo of rotting, necrotic tissue from the back of the thigh of an above-knee amputation, as this woman also would not have survived another operation. But on this occasion there were no nurses available, and the only person who could help was an 18-year-old personal carer who had never experienced anything like this and was shaking, retching and crying through the procedure. This is today's reality of what the shortage of nurses and allied health professionals means.

We know that one-third of residents in aged-care facilities have high care needs in every ACFI domain, such as complex health care, behaviour and activities of daily living. Eighty-five per cent have at least one mental or behavioural condition, 47 per cent have depression and 52 per cent have dementia. We know that the most common issues raised as complaints for aged-care facilities were medication administration and management, personal and oral hygiene, and personnel numbers and ratios. From 2003 to 2013, the proportion of nurses in aged care has dropped by a third and allied health professionals have halved.

Many of the cases of abuse and neglect in aged-care settings involve inadequate clinical care. The clinical care accreditation standard was the single highest outcome not met by residential aged-care facilities in 2016-17, followed by the medication management standard. This shows that aged-care staff find it difficult to understand or are unable to carry out what is expected of them, in terms of clinical care. This must be improved to ensure older people receive high-quality care. The clinical adviser to the commission must be a GP or geriatrician experienced in aged care and needs to have real power to direct outcomes and be properly resourced.

Senator WATT: Thank you all very much for your evidence today. We have covered a lot of issues in those opening statements. I might just focus on the bill, and whether it is going to be effective in meeting everyone's hopes, for the moment. I'll start with a couple of broad questions that anyone who wants to answer can answer. In broad terms, do you think that this legislation provides strong enough powers to the commissioner to protect consumers in aged-care settings?

Dr Brooke : I disagree that it is going to provide strong enough powers. I think to sanction and remedy a facility it still needs to go through the secretary, in the current legislation, to my understanding. It also doesn't clearly articulate the power that it needs to make action in a timely manner.

Senator SIEWERT: Sorry, Senator Watt, can I intervene there? It's my understanding that that is coming in the second part of the change. This is the first part of the process and that's the second part. Do you think they should have the powers immediately or are the changes proposed not going to be enough?

Dr Brooke : The changes that are proposed are not enough.

Senator SIEWERT: So the ones coming in, in 2020, aren't enough.

Dr Brooke : I think the bill, as it stands right now, needs to have more accountability and more power to action and provide direction in a more timely manner.

Senator SIEWERT: Thank you; I just wanted to make sure.

Senator WATT: And that power should reside with the commissioner rather than need the secretary to tick it off.

Dr Brooke : I do. I think bureaucracy, unfortunately, can get in the way of a timely requirement and I think there are responsibilities the commissioner needs to have to action and support vulnerable people. We are seeing a very strong change in the way the agency and the complaints department, at the moment, are acting. They are acting very promptly; however, I do see that the trip up in the current legislation is not to provide that timely environment. We really need the commission and the commissioner to be accountable and not to be blaming somebody else, which is currently happening.

Dr Howe : Can I just add, perhaps, a question about that? My understanding was that the secretary could act on a delegation from the minister, so it was, effectively, the minister acting to impose sanctions. What that transfer to the commissioner would involve I can't answer the question, but if the commissioner is to have those powers there's got to be a different system of delegation or whatever under the act.

One of the other things, I think, comes up, though, is the relationship between what the commissioner or the commission is going to do and what the department is still going to do. It looks to me at times as if we're going to have a very big commission and very small departmental responsibilities, and I'm not quite sure that farming everything out or charging the commission with so many things is going to get the balance right. I think we need to look at the functions that are staying with the department, not just in this very specific case but in a number of other—approval of providers, for example. Who is an approved provider? The approval of new beds—who's getting them? Who's setting up new nursing homes or community care services? And so on. That all has an impact on quality. There's a bit of toing and froing needed there. I'm not suggesting all of these things should be covered in the act, but we need to be very clear about what is and how it's going to work.

Dr Brooke : May I add to that—I think it's been a positive step that the approvals and the ACARs do step to the commission. Currently approval processes go through a separate department. There's never transparency of what a new provider is promised in how they're going to meet the act, and therefore there's not a timely review. It's my understanding that most of the approved provider applications that went through last year and the year before haven't even seen a review by the department. So I would see their accountability very much taking ownership of that. At the moment, ACAR beds with specific criteria against diversity populations aren't being held accountable. So if we've got homeless, vulnerable, CALD populations, the surveyors aren't given that information and held accountable to review their ability for the provision of those diverse beds or those conditions.

Senator WATT: Did any of the other organisations want to say anything in general terms about the strength of the powers and whether they're adequate?

Dr Kidd : I would like to see the commissioner and the commission having very clear powers in terms of being able to make more effective planning in this area—things like being able to make some sort of direction about nursing ratios and ensuring that there are minimum numbers, depending on the type of aged-care facility. But hospitals already have minimum staff numbers or ratios for different areas like intensive care—medical beds or surgical wards. That sort of work could be done in aged care. There is variety. But the reality is that, whichever aged-care facility you go into, there are a lot of people who desperately need a lot more nursing care than they're getting.

Senator WATT: Okay. Before I turn to some of the issues that some of the groups have raised specifically, do you think the legislation provides enough power, as it currently stands, to the commissioner to essentially arbitrate disputes that might occur between consumers and providers? Is that something that anyone's turned their mind to?

Dr Brooke : To give credit to the current commissioner of the complaints department, there has been a very high turnover of complaints and quick resolutions that have been very effective to both parties. I think that they have managed, within the current environment and legislation, and the proposed one, to effectively support early recognition to the quality agency as it stands to provide further inquiry. So, operationally, I would support that that has been effective. I will say that, from a consumer point of view, I think that you would seek a very different answer, because we are seeing a genuine rise in those complex complaints, and that's a very complex area for people to grieve, to deal with different issues, so there's an ability to use the legislation to provide comfort that the legislation covers the requirements, but there's a psychological kind of element to it as well.

Senator WATT: Dr Brooke, while you've got the floor, back on this sanctions point, your submission made the point that the functions of the commissioner should include the substantive sanction powers under the Aged Care Act and robust enforcement powers like those held by the English Care Quality Commission.

Dr Brooke : Yes.

Senator WATT: Apart from what we discussed around your view that the power to sanction providers should remain with the commissioner, is there anything else in that area that you want to talk about?

Dr Brooke : Really, the UK model has been very supportive of a shared learning environment. At the moment, clinical indicators and operational indicators aren't going to support us to find early warning signs for facilities. We need to seek for the commission to use its best data and information research to provide early indicators that the facilities can be guided by, that the commission can be guided by. If we get to a sanctioning point of view and a point of sanction, we have really failed our vulnerable people. Whilst we talk about sanctions, our view should be for a risk rating scale, if you like, which has somewhat been discussed by the UK model, but not enacted in its entirety, where we can provide early support and early advice. The quality agency is doing that currently by increasing its visits and unannounced visits and providing more guidance. However, it is stipulated right now that they can't provide specific advice and they can't provide resources to provide that kind of leadership. I would seek that, currently, sanctions need to be in place, but there's a lot of learning that the UK model has done to provide a pathway for improvement and to provide best practice guidelines to support what that should look like.

To my earlier point, at the moment there is no support for an open disclosure approach. We're not able to share real data of failures that are currently in the systems. We can't really dig, for litigious reasons, which doesn't provide an open and transparent mechanism between the commission and the centre—the providers. I draw to your attention the risks. While we're talking about residential care, we have to focus on community care being a lot more of our risk. Operationally, from managing clinical governance across the whole of Australia and community care, I think if there were greater supervision—there's no requirement for registered nurses to be even providing oversight for complex care: maybe in a package 2 and 3, but definitely not in a 2. We currently have I think more than 60 or 70 per cent of people waiting for a higher package that are on a 1 and a 2 that are very complex, with elder-abuse requirements not even required in community care. I apologise for going off the topic, but our current legislation doesn't even provide a mandatory obligation to report elder abuse of a physical or sexual nature; we've got to acknowledge that abuse is far more than just that. We don't adequately support our community care residents right now.

Dr Howe : I think the early-warning system is what is really needed. Once you get to the point of sanctioning, things have got very bad. The visits, the reporting on those, the action that's taken when shortcomings are found, the disclosure, the notices of noncompliance—it is a hierarchical system that is meant to address early problems and stop them getting worse. Sometimes there are sudden disasters, but I think that really does need to be more clearly in place and action taken on that. Also, in the community care area, I know there's a lot of focus on the packages; however, there are 800,000 people on the Home Support Program, and many of them are getting a level of support equivalent to a package. Many of those who are waiting for packages are in fact on home support. For some reason, the department has delayed the supposed integration of packages and home support. My preference would be, in fact, to disintegrate packages and put it all back into home support with continuous funding, instead of the very artificial barriers. The HACC program had continuous funding, from some getting very little to some getting a very great deal. I think there are very peculiar things happening in the home care field—the divisions between the different levels of packages. It's better now than it used to be; we've got four instead of two. But, in the Home Support Program, in terms of dollars, you've probably got everything from the minimal $50 a week maybe, for whatever, up to the very substantial—thousands of dollars. So I think that that is very necessary there. And including better assessment for all levels. The point of entry, I think, is again a very, very important one—involvement of assessment teams and so on. One thing I think that could help would be that, whenever anyone approached an aged-care provider, they got something like a Medicare card. This harks back to Professor McCallum's mention of surveys that people don't know about the system. We all know about Medicare because we've got a Medicare card in our purse or wallet—wherever. So, when people have contact with one bit of the system, they could get something that they can keep hold of, when they keep coming back; that could be then their electronic record or whatever.

But I think we need to see the strengthening of the home care system overall, as Nicole has mentioned. Cases of neglect and of carer overstress have been discovered.

We also need to remember that an awful lot of very old women, especially, don't actually have carers. They've outlived everybody or never married, and they don't have children. Children can be nice or nasty.

Looking at the low levels of home care, people think it means that people have low needs. Often they have quite high needs, but they get one critical service. I think we really need a much more thorough exploration of that. I'd be interested in the geriatricians' experiences. I should say: I'm not sure how the bill will tackle that, but it needs to be done somehow!

Senator WATT: I've just a couple of questions for the other groups. The AMA, in its submission, talked about the need for a chief clinical adviser. Is that something that you think needs to be achieved through this bill, or is that more a matter that should be dealt with by the commission?

Dr Kidd : Yes, it should be dealt with by this bill. We consider it of central and great importance that there is a clinical adviser, and, as we said, preferably a medical adviser—a GP or a geriatrician—with the right sort of experience and skill set. It would be really desirable to have that in the legislation.

Senator WATT: While we're on the topic of involving health professionals: again, the AMA would like to see the engagement functions of the commissioner expanded to include consultation with qualified health professionals, including medical practitioners, and the Society for Geriatric Medicine, again, through the bill, would like to see the advisory council expanded to include a geriatrician. Is that correct?

Dr Maddison : Yes, that's our position.

Senator WATT: That's sort of your key ask, in terms of the bill, isn't it?

Dr Maddison : It really is. One of our concerns is that, as I said in my opening statement, we don't say often enough that the reason people need care is that they have multiple medical problems. So having high-quality general practice input in all these cases, and access to a geriatrician in the most complex, is absolutely key. But, in terms of this legislation, I do think geriatricians are very well positioned to help assess the safety and quality of that care. As I think Anna said, geriatricians are pretty good at walking into an environment where there's a great deal of complexity—not just medical, but social and other factors—and forming a sense very quickly as to what's going well and what's not going well. That, to me, is lacking in our current assessment and accreditation of aged care services.

Dr Howe : Could I ask: do we need two clinical commission advisers, a nurse and a geriatrician, rather than one or the other? They have complementary functions and perhaps there's a need for one of each.

Mr Toy : I think one of the things that the AMA flagged in our submission is that we have a view that we wouldn't want to end up with a legislative description of a clinical adviser that might then limit the scope of what I think is exactly what everyone's talking about—the need to have, essentially, multiple clinical advisers or maybe have a panel of advisers that includes GPs, nurses and geriatricians, depending on the issues of the day that they're grappling with. Not being legislative experts, one thing we flagged is: we think the clinical adviser is an absolute must; we think that will probably need to extend beyond just one, and we'll need to have some kind of mechanism that gives a clinical adviser some real teeth and powers but also doesn't limit flexibility where there might need to be expansion down the track, noting all the kinds of care concerns that we've raised.

Senator SIEWERT: In your submission—I think it's your submission; I sometimes forget who says what—you talk about the clinical adviser; you want them as a GP or a gerontologist. You also talk about a panel—that you could put in place a chief clinical adviser and then a panel along with that that includes all those specialities that you've just talked about.

Mr Toy : Exactly. We are drawing on our experience of other panels that might operate in other parts of the health system, where they will routinely go out and find the specialty they need to deal with whatever the issue is that they have at hand. We're saying that, as long as the commission has the kind of power and resources to be able to do that and find the right people, in consultation with the various specialties, that would be a good thing.

Senator SIEWERT: Just on that, as I have been asking other witnesses, do you feel that that chief clinical adviser should be a statutory position—in other words, it is not discretionary?

Mr Toy : I think we've made it fairly clear in our submission that it should be a mandatory position—absolutely. I think earlier iterations of our thinking were along the lines of the clinical adviser being potentially called a commissioner or a deputy commissioner, with our intent there being that this is an absolute must for the commission. How that gets enacted, I guess we'd leave up to the department and the parliament. But, for us, it's an absolute must, yes.

Dr Brooke : I would like to make a comment. As a registered nurse, I think we do need to acknowledge that different health professionals do add value. In acknowledging the role of the medical authority and expertise, I think we have to acknowledge that registered nurses, especially with experience in gerontology, have a lot to offer, and it may not need to come down to a definitive qualification, but experience. As a specialist myself in clinical governance, I would seek that we are open to the best candidate and the best background for the job at hand, rather than just a definitive chief medical officer role, for example. To support that, there may be opportunity that the bill drives a terms of reference of a clinical governance and advisory council that is protected to draw together themes and analysis and has a budget that can support research initiatives and priorities given the acuity that's happened. We do have to acknowledge that a lot of the surveyors that come out to the facilities—and definitely not the same in community care—may not have a clinical background, and they are assessing clinical risk without a substantial background in that.

Senator SIEWERT: I want to ask. This committee's has recently undertaken a delegation and I was looking at the processes in place in Canada. In one of the provinces they have what they call inspectors and, other than three, they were all nurses. I've had feedback from people here that the assessors we currently have have a wide range of qualifications, some of which have nothing to do with aged care. That takes me to the question of whether we should be putting some parameters around who does assessment.

Dr Brooke : From a personal perspective and experience, there are times when especially at-risk centres do prioritise putting nurses in, depending on the scope. Currently, of the 44 standards, only one of those standards is really clinical and, of the new eight, two are really nursing. We have auditors that will come in and they are accountants that don't know aged care and don't really care, and cleaning contractors come in to assess aspects of HR performance—which I personally don't understand. They are getting training in how to audit—and one would argue that a good-quality framework doesn't need a specialist skill. From my experience in aged care and community care, the challenge I have is that we have such a highly acute population, especially in the homes that require a level of root-cause analysis and instant investigation, which requires a knowledge base. I'm not sure that it could be stipulated in the legislation, but I would seek that the commissioner would adequately seek that the surveyors have appropriate skills and knowledge, which sometimes we question.

Dr Kidd : I will add to that with what I've seen of surveyors coming out. The point that was just made is really important, but you really need clinicians who are experienced in this area as part of that team. For example, when the surveyors go out to an aged-care facility, if there is someone with a nursing background or other clinical background, such as a geriatrician or a GP, when they're going around they may well see a patient and there could be obvious concerns, as a clinician, about, say, pressure care management. The clinician will use that, perhaps, as a bedside way of asking some questions. It would go some way to understanding the level of literacy and understanding that the staff have about how they are addressing the clinical needs of the patients that they've got. Someone without that experience wouldn't have the right language or the right approach to perhaps easily uncover the degree of appropriate care that's been given to a patient.

Dr Maddison : I agree with both of my colleagues. It's especially important in terms of the context of our patients or residents. They have multiple medical problems and we've got increasing acuity in the sector. There's a very big push to treat people in their homes and in the nursing homes as opposed to being in hospital, which is a good thing, but it does emphasise how important it is that anyone who's assessing these services externally has a very strong clinical background. My sense of a lot of assessment of services to this point is that it has been a tick-the-box exercise: do you have a policy that says you will look for pressure areas? What we need to move to is: you need to have the policy, you need to have evidence the individual client or resident has a plan, you need to have evidence that the plan is enacted and you have to have evidence when you speak to the personal carer on site that you actually know the plan and understand it, and understand why it's important. Until you can do all those four things, you can't be assured of the quality of care. One additional thing I would say about having clinicians assess is that I do believe that recent clinical practice is a quite important consideration. One of the traps I see occasionally in hospital accreditation policies—which is where I'm mostly involved and where I get into discussions with accreditors—is that their knowledge is 15 or 20 years out of date. I have to give them a little tutorial on how things have changed since they were last working in the sector. So I think that recent clinical practice has to be a consideration in terms of assessors. We don't want a professional assessor workforce that hasn't actually laid hands on a patient for 20 years.

Dr Leong : Just to add to that as well, I think it's important not only to see the literacy of the workers or the carers in nursing homes but to work out if things have been learned through errors that have occurred in the time and the processes that have been put in place to actually spread the information, at least within the organisation, if not further.

Senator SIEWERT: Yes. Instead of just quality assurance it's going to quality improvement.

Dr Leong : Correct.

Senator SIEWERT: How do you ensure that's happening? Is there something that we need to do in the legislation or is it something that we do from a guidance—

Dr Leong : I suspect a lot of it has to do with guidance. You can't be too prescriptive on some of these things. Consequently, it's often about guidance. At the time these things happen, you need to know there is a process that the organisation can go through to look at that and to see the outcomes of some of those processes. That would be part of the assessment of what someone could look at when they look at some of the risk events that have occurred or falls that have occurred whilst they were in there—the processes that could be put in place to improve the next event.

Senator SIEWERT: That leads me to the question that we were talking about earlier this morning: serious incident reporting—major incident reporting—and how that leads to quality improvements. For example, I understand that in New Zealand they've got a process and falls are included in the serious incident reporting, and that has actually led to a drop in hip fractures. So it is possible to do that, but it's about making sure we've got the framework in place. I don't want to confuse that with the standards framework, but we need a process in place to make sure that's happening.

Dr Leong : I think that's the difficulty. How do you actually ensure something like that happens, and how is it actually carried through and followed through with everybody in the organisation itself? So it's not just one person that has to learn from this, but the whole organisation that has to learn from it.

Dr Kidd : In that regard, the serious incident reporting is very important, but it's a little bit like the horse has bolted. The other thing that you really want in this space is to actually encourage a culture of near-miss reporting, where people are actually picking things up before there is some bad outcome and starting to put policies and behaviours in place that are going to start avoiding things before they become a problem.

Dr Howe : All of us, including the people in the teleconference—my background has been heavily involved with the Australian Association of Gerontology; I was president for a few years, amongst other roles—are from professional organisations, really, like the geriatricians, the AMA and so on. I think one of the roles to improvement is not just within an aged-care service, whether it's residential or community care, but in that professional community. The role of the commission, I think, in promoting that is to work with these different professional organisations—not just running very expensive national conferences once a year but participating in a whole range of things that others do. The best practice events that the former agency ran were very effective. They were well-attended, they were low cost and the ordinary staff, if I can call them that, got to go to them; not just senior management. I think all the other professional organisations do have a role of educational activities for their own members, but also for others. I think that's part of the role of the commission that does need to continue and to be developed. Homes or services that don't participate in those activities—they're ones who are just burbling along. The ones who are participating, learning, updating—they're the ones who are going to get better, and some of those are going to be exemplary, being involved in innovative programs and so on. I think that this is where the aged-care sector at its broadest really does need to encompass all of those; not just narrowing down and expecting the commission to do everything, but seeing it as part of this much wider professional network.

Dr Brooke : At the moment the bill doesn't actually include the responsibility of the commissioner or the commission to educate its workforce. It talks about the role to educate the consumers and the wider stakeholders. I realise it blurs onto a different minister portfolio; however, there isn't a responsibility for the commission to educate on best practice initiatives or the process or auditing or anything in that vicinity. It explicitly doesn't talk about the approved provider. It talks about the responsibility to teach or to support the approved provider. However, the obligation further than that is to really support a unified central knowledge base and to make sure we've communicated that.

I will say the challenge that we have in our current surveyor process is a very structured, very finely tuned audit process with very strict statements that can be validated. An actuary would be very happy with our current standards of inquiry into each of those areas of the 44. However, that does not in any way elucidate the real issues and the underlying issues that are happening in a facility. One of our jobs in clinical governance is to look behind the incidents and to ask the whys. Surveyors, at the moment, because they're untrained in their capability or their foundational knowledge platform, don't have a very strong basis for a line of inquiry that would speak to the root causes of issues precipitating within the sector.

You've also got to understand that it's very process driven. It's about ticking a lot of boxes right now. We know when they're going into the family rooms to watch and observe. We know what their schedule is. I would seek that, whilst unannounced visits can happen any time in the six months, it's still a very regimented structure—you know what's going to be asked and you know what's there in front of you. I think the bill potentially needs to go to a stronger review of the surveyors' needs, qualifications and capability and even the fact that community care is so widespread that there isn't a requirement for them to actually go into a home to speak to someone; it's only via phone. So I think there are some challenges inherent within the surveyor role and scope.

CHAIR: I have a question for you, Dr Anna. It's just a short question, and I thank you for your contribution. You made a comment on the loss-of-fear factor. Is my understanding correct that you suggest that having all visits unannounced will yield better outcomes and will manage complacency in aged-care homes?

Dr Howe : I think the evidence does show that the unannounced visits lead to better quality improvement than the announced ones—I know I've seen that somewhere; I couldn't quote it chapter and verse, but I could follow up on it—because of the element of having to keep on your toes all the time rather than just putting pretty things up or whatever when you know a visit is coming. So I think that will have some effect, but, as Nicole has said, if it's just pretty much a scripted play-acting and you've got the answers on the iPad, it's not going to get to what is really going on. So periods of observation of how things are structured, I think, do need to be taken into account, and more use of informants in the home—what do the nurses or the other staff think is going on? I regret to say that I don't think relying on predominantly consumer input is going to get where we want to get, because the consumers are very impaired. The lack of understanding about your medication, people with dementia and so on—they can certainly talk about meals, social activities and things like that, and they're important; there's no doubt about that. But, for clinical care and management of finances and so on, I think we do need the surveyors, who can get into those other areas.

One point I did make, and this might seem a minor thing: so we don't have confusion about assessment teams—before you get in—and the assessors, I would really like to see these people called 'audit survey teams' or something like that rather than 'quality assessment teams'. It sounds like it's just a semantic point. Some of their role is assessment, but it's an auditing and other role there. But I think unannounced visits have been quite a significant step. They were called for for a long time. It's happened. Now we can wait and see.

CHAIR: Thank you very much. Thank you all for your participation in the committee hearings today. If we have anybody who has taken questions on notice, the answers are due tomorrow at 2 pm—Thursday, 11 October. Thank you all for coming.