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Standing Committee on Health, Aged Care and Sport
Quality of care in residential aged-care facilities in Australia

CORRIGAN, Mr Matthew, Principal Legal Officer, Australian Law Reform Commission

MacKENZIE, Dr Julie, Senior Legal Officer, Australian Law Reform Commission

Committee met at 09:01

CHAIR ( Mr Zimmerman ): Thank you for joining us here this morning. I declare open the public hearing of the Standing Committee on Health, Aged Care and Sport in reference to our inquiry into the quality of residential aged-care facilities in Australia. Thank you for attending this morning. Before we begin, I ask that a member move that the media be allowed to film the proceedings today in accordance with the rules set down for committees. That's moved. Any objection? If not, I will get underway. Firstly, I call representatives of the Australian Law Reform Commission. Do you have any objection to being recorded by the media if they happen to be present this morning?

Mr Corrigan : No.

CHAIR: Just before we get underway, I am required to notify you that these are formal proceedings of the parliament. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of the parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege.

You've provided us with a submission to the inquiry. Thank you very much for that. Do you want to make an opening statement before we get underway.

Mr Corrigan : Yes, we'd like to, with your indulgence.

CHAIR: Thank you.

Dr MacKenzie : Thank you for inviting the ALRC to attend this public hearing as part of your inquiry into the quality of care in residential aged-care facilities in Australia. The ALRC is an independent statutory agency within the Attorney-General's portfolio. It operates in accordance with the Australian Law Reform Commission Act and the Public Governance, Performance and Accountability Act. The ALRC conducts inquiries into areas of law at the request of the Attorney-General of Australia, who provides the terms of reference for an inquiry.

In May 2017, the ALRC completed an inquiry into elder abuse. The inquiry made 43 recommendations for law reform across Commonwealth and state and territory laws, including in the areas of superannuation, banking, powers of attorney, guardianship and financial administration and social security, as well as aged care. It's important to note that it's in the context of this much broader inquiry into elder abuse that we examined aged-care laws and legal frameworks—that is, the ALRC did not undertake a systematic inquiry into the adequacy of quality standards and processes for auditing quality in aged care in the elder abuse inquiry. Instead, we concentrated on safeguards against abuse in aged care from the perspective of addressing elder abuse. We hope that the work we conducted as part of the elder abuse inquiry is useful to the committee. Our comments today will necessarily be confined to the work we conducted on that inquiry.

The ALRC is pleased to provide more detail on some of the recommendations most directly relevant to the committee's terms of reference. The first is our recommendation for responses to serious incidents of abuse and neglect. The ALRC recommended that there should be a new approach to serious incidents of abuse and neglect in aged care. It concluded that the existing approach, which places most emphasis on the requirement to report the occurrence of an alleged or suspected assault, be replaced with a system that requires aged-care providers to investigate and respond to a serious incident of abuse or neglect. The ALRC recommended that a provider's investigation of and response to serious incidents should be monitored by an independent oversight body. The ALRC's recommendations were informed by the Disability Reportable Incidents Scheme for disability services in New South Wales, which is overseen by the New South Wales Ombudsman, as well as the serious incident reporting scheme planned for the NDIS. Implementation of these recommendations in aged care would create a regime that's complementary to and consistent with schemes operating for other vulnerable groups.

Another area we made recommendations in was in relation to restrictive practices. There was widespread concern in submissions to the ALRC that restrictive practices, and especially chemical restraint, are inappropriately used in aged care. The ALRC recommended that the use of these practices in residential aged-care facilities be regulated in the Aged Care Act. We recommended that restrictive practices only be used as a last resort and only to prevent serious physical harm. We also recommended that the use of restrictive practices require approval from an authorised person and be subject to regular review. The ALRC also recommended: the consideration of further safeguards, including establishing an independent senior practitioner for aged care to provide expert leadership on and oversight of the use of restrictive practices; requiring aged-care providers to record and report on the use of restrictive practices in residential aged care; and consistently regulating the use of restrictive practices in aged care and the National Disability Insurance Scheme.

Finally, the ALRC made recommendations in relation to decision-making and the Community Visitors Scheme. The committee is considering the adequacy of consumer protection arrangements for aged-care representatives who do not have family, friends or other representatives to help them exercise their choice and their rights in care. Relevant to this term of reference is the ALRC's recommendations relating to decision-making in aged care. In the elder abuse report, the ALRC recommended that the Australian government further consider amending aged-care legislation, consistently with principles that emphasise the equal rights of all adults to make decisions that affect their lives, and prescribe that the will, preferences and rights of a person who may require decision-making support must direct these decisions. These principles were developed by the ALRC in its 2014 inquiry into equality, capacity and disability in Commonwealth laws. The ALRC considered that this would offer an important safeguard against abuse for older people receiving aged care. It would provide clear statutory guidance for decision-making, with the starting point that the older person's will, preferences and rights should guide decisions made regarding their care irrespective of any determinations as to legal capacity.

Also relevant to the committee's final term of reference is the ALRC's recommendation about the Community Visitors Scheme. The Community Visitors Scheme is a scheme in which recipients of both residential and home care who are socially isolated or at risk of social isolation are matched with volunteer visitors. We do not recommend any change to the community visitors' primary function—that is, providing companionship to aged-care residents. However, the ALRC did recommend that national guidelines applying to the Community Visitors Scheme be developed, with standardised policies and procedures for visitors to follow where they become aware of abuse or neglect.

More detail on all of these recommendations is provided in our report, which we respectfully commend to the committee for detailed consideration.

CHAIR: Thank you very much. I might start up the questioning. I just have a few issues. Firstly, as you would have seen, our terms of reference ask us to report in relation to all instances of mistreatment and the systems available for redress. I'm wondering whether you have any views on how we should define 'mistreatment'. You might want to take that on notice if you want to give a more considered response.

Dr MacKenzie : We used the definition of 'elder abuse' developed by the World Health Organization:

… a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.

It provides examples of forms of abuse:

… physical abuse, psychological or emotional abuse, financial abuse, sexual abuse, and neglect.

We used that as a starting point for the broader elder abuse inquiry, but each area of law that we focused on required us to think particularly about aspects of abuse in a particular legal context.

CHAIR: My second question goes to the review that was completed last year at the instigation of the federal government. Have you had the opportunity to analyse the recommendations of the Carnell-Paterson review? Do you have any critique of that review—areas where you think that they could've gone further, missed areas or areas where you disagree with their recommendations?

Mr Corrigan : We haven't reviewed that report in any great detail other than from the perspective of considering the compatibility of their recommendations with ours. One of our key performance indicators is monitoring the implementation of our recommendations by government. It was through that particular lens that we were looking at it. We were quite pleased that the Carnell review came to essentially the same position as we did on the serious incidents response. We saw great complementarity between their recommendations and ours in that space.

CHAIR: You wouldn't have any other comments about its recommendations at this stage?

Mr Corrigan : No.

CHAIR: My third question goes to an issue that's raised in the submission of the witnesses that are giving evidence after you. In their submission, they've proposed that the user rights charter, which really doesn't have any statutory weight at the moment, effectively be made a mandatory charter that would be incorporated in the contracts given to aged-care residents. Do you have a view on that?

Dr MacKenzie : We didn't consider that as part of the inquiry. Certainly, some submissions raised some concerns about the strength of the user rights charter, but we didn't explore that in our inquiry.

CHAIR: The fourth and final question from me: last week we heard evidence from the Department of Health, and I think one of the things that struck us was the follow-up to reports of incidents that have necessitated the action of the police. The system seems to provide a reasonable reporting structure for those incidents, but what surprised many of us was that, once an incident's reported and been referred to the police, there's really no follow-up on the part of the health department. There's no mandatory follow-up to see what happened and whether there's anything that needs to follow those inquiries. Are they issues that have been raised with you?

Dr MacKenzie : Yes, they certainly were. The lack of formal process for following up and oversight of the management of what's currently called a reportable assault—what we proposed calling a serious incident—was one of the reasons why we recommended our new scheme in which a provider would be required to investigate and respond to a serious incident to provide that follow-up around the serious incident.

CHAIR: Have you defined 'serious incident'?

Dr MacKenzie : We have.

Mr Corrigan : While Julie's finding that—the other aspect of the scheme's current arrangements that we think is problematic is that, because it necessitates a report to police in every incidence, you get a range of reports to police, from very, very minor things to very, very serious things. That's putting quite a lot of information and data on a resource-poor police force with no capacity to ascertain the severity. We think that's where some of the problems come up in terms of police following up on these.

CHAIR: Yes, but that is hard for the aged-care providers, because they're damned if they do and damned if they don't, in some ways.

Mr Corrigan : Yes, absolutely.

Dr MacKenzie : We defined 'serious incident' in recommendation 4-3 in our report, and we said that it should mean, in residential care:

(a) physical, sexual or financial abuse;

(b) seriously inappropriate, improper, inhumane or cruel treatment;

(c) unexplained serious injury;

(d) and neglect;

Unless it's committed by another care recipient, in which case we recommended a higher threshold for reporting:

(e) sexual abuse;

(f) physical abuse causing serious injury; or

(g) an incident that is part of a pattern of abuse.

Mr GEORGANAS: I have a question on the visitors scheme: even though there are some recommendations, I noticed that there was no implementation establishing a serious incidents report out of that recommendation. Why was that? We've seen a lot of incidents though the visitors scheme. I would have thought there would have been some sort of system where you set-up a really robust investigating and reporting system for incidents that take place.

Dr MacKenzie : The community visitors scheme in residential aged care operates somewhat differently to the official visitors schemes that operate in disability services in the states and territories. In the discussion paper we did recommend that a more formal official visitors scheme be implemented in aged care facilities. But, the final report, we considered the primary function of community visitors in aged care—they provide an important function of providing social companionship to isolated aged care residents—and that there should be no real change to that broader structure of the community visitors scheme, but that there was a lack of clarity around what a community visitor should do should they encounter abuse, neglect or something that concerned them. So our recommendation was that there should be guidelines so each community visitor should be very clear about the process to follow if they are concerned about a resident that they're visiting experiencing abuse or neglect. But their role shouldn't be officially to monitor an aged-care facility for abuse and neglect.

Mr GEORGANAS: You mentioned staffing arrangements in your report. Could you elaborate a little bit more on that? How you saw the system of staffing and perhaps whether there were more staff or ratios that highlighted the amount of work that staff have to do compared to incidents that've taken place because of overwork et cetera?

Dr MacKenzie : Concerns about the staffing numbers in aged care and the mix of staff in residential aged care facilities were put to us in many submissions. Many submissions suggested that they were so low or inadequate as to lead to abuse and especially neglect. Many submissions did urge the commission to make a recommendation around ratios or mandatory minimums of staff. What the ALRC concluded was that, certainly, an adequate number of staff is a safeguard against abuse, and that what should occur is that the Department of Health should commission an independent evaluation of research on optimal staffing models and levels in aged care. There's a current requirement that there be an adequate number of staff. We suggested that the results of this independent evaluation should be made public and used to assess the adequacy—that notion that there's an adequate number of staff—of that publicly available benchmark that we use to assess adequacy of staffing in aged-care facilities.

Mr GEORGANAS: In your study, was there evidence that if there'd been more adequate staff in certain places where incidents did take place was there evidence that perhaps these things wouldn't happen? I know it's hard to say to say, but was there a correlation between the two?

Dr MacKenzie : I don't think we could make a concluded judgement on that, but, certainly, submissions to us suggested that there were staff, and especially registered nurses, who were responsible for large numbers of residents such that it was difficult to provide care.

Mr GEORGANAS: There were restrictive practices taking place that you spoke about, which is very interesting. Did you find that perhaps there are areas where chemical restraints shouldn't be happening but were far too easy to administer because of issues such as staffing and other things and the connection between those?

Dr MacKenzie : Certainly the concerns were expressed to us in submissions that chemical restraint and other forms of restraint were perhaps being used in response to the fact that there were not sufficient staff to provide care. We considered that explicit guidance around the use of restrictive practices was the appropriate avenue to take to address that.


Mr ZAPPIA: In your report you talk about the effect of the recommendation being to require home-care providers to report and respond to serious incidents when committed by staff. You then go on to the types of incidents et cetera in dot points. Are you suggesting to the committee that it is not the case right now that serious incidents need to be reported when committed by staff?

Dr MacKenzie : No. There's a current requirement around reporting of what's defined as reportable assaults in the Aged Care Act. Our recommendation around the serious incidents scheme is to extend the definition of what's reportable or to change the definition of what's reportable, and that is currently what's—

Mr ZAPPIA: To broaden it?

Dr MacKenzie : Yes.

Mr ZAPPIA: As far as your overall inquiry into elder abuse is concerned, it wasn't exclusive to aged-care facilities, was it?

Dr MacKenzie : No.

Mr ZAPPIA: So this was only one component of it.

Dr MacKenzie : That's right.

Mr ZAPPIA: Did the inquiry actually visit any of the aged-care facilities as part of the inquiry?

Dr MacKenzie : We didn't. We consulted with many aged-care stakeholders, including provider representatives as well as aged-care consumer advocates, and received many personal submissions from family members of aged-care residents.

Mr ZAPPIA: Were you able to conclude from the inquiry whether there were some operators who performed much better than others? I understand there were several of what I call major operators in the industry and then many individual operators. Of the ones that are what I call major operators—they have several facilities—was there any conclusion drawn about who were the better operators?

Dr MacKenzie : There wasn't in our inquiry, no.

Mr ZAPPIA: Thank you.

Mr Corrigan : To add to that: whilst we didn't make any conclusion as to who was the better provider, I think it is fair to say on the evidence that there is a great degree of variability. From the evidence that we received, there are aged-care facilities that are doing an excellent job. Likewise, we received evidence of aged-care providers who are not doing a good jog. I think a lot of our recommendations are essentially around providing frameworks that provide a consistent degree of care and response.

Mr ZAPPIA: I asked the question because I was trying to lead to this question: were the ones that were doing it better already adopting or implementing many of the recommendations that you're suggesting? It would have been voluntarily done, but were they performing in a way that you might say emulated what you're suggesting should be the case for all the others?

Dr MacKenzie : In some instances submissions from some providers seemed to suggest that what we were recommending was something that was part of their procedures, in which case there were some concerns about the administrative burden that some of our recommendations would entail. In the case of providers that were already at that level, concerns about that burden were lessened, I suppose.

Mr ZAPPIA: Thank you.

CHAIR: To clarify: are the reporting requirements for residential aged care the same as for home care?

Dr MacKenzie : No, they're not. At present there's no mandatory requirement that assaults be reported for home care.

CHAIR: So really your recommendation goes to the heart of that issue. Essentially, it's introducing a regime for reporting for home care pretty much along the same lines as for residential aged care.

Dr MacKenzie : Yes. Our recommendation is that there should be a requirement for reporting and response in home care but only in relation to incidents alleged to have been committed by a staff member. Obviously, in the home a person may be experiencing abuse committed by a family member or some other person. Within the aged-care regime we didn't recommend that that be reportable.

CHAIR: Why not? If someone who's working for a home-care service goes into a home and believes that domestic violence is occurring, why shouldn't they have an obligation to report that?

Dr MacKenzie : What we concluded was that there may well be a broader imperative for that staff member to make concerns about that abuse known but that, within the specific framework of aged-care laws and legal frameworks, it wouldn't be reportable. But certainly there can be reports to police, and we made recommendations about adult safeguarding laws. Reports to adult safeguarding agencies should certainly be in the contemplation of a staff member concerned about abuse.

CHAIR: Dr Freelander.

Dr FREELANDER: My concerns go to this matter. It seems to me that there's a very disjointed approach to the whole elder abuse spectrum, whether it's in home care or in residential care. I wondered if any consideration had been given to establishing an overall independent body much as you'd see in child protection, where notifications could be made to a central organisation, filtered and then investigated independently across the whole spectrum.

Dr MacKenzie : Not a broader agency like that. We certainly didn't make a recommendation in that regard. In aged care we did suggest that there be employment screening for potential staff members and volunteers working in aged care. We recommended that that be done by an independent body that would assess criminal history, outcomes of reports from our serious incident reporting scheme and any relevant disciplinary complaints from, say, professional registration boards. In that sense we recommended an independent screening function but not a broader function akin to child protection.

Mr Corrigan : And the recommendations in that space recognise that there's already work going on under the NDIS and that, ideally, in the longer term you'd have one central Commonwealth agency doing all of the vulnerable persons checks for people working with children, people in disability care and those in aged care. That reflects the fact that a lot of employees move between those three caring sectors.

Dr FREELANDER: Surely that's a slightly different issue than a staffing issue, No. 1. No. 2: the NDIS would not have responsibility for people over 65, so again it's a sort of separate entity. What I'm hearing is that there are quite a number of different organisations involved, and maybe consideration could be given to having an overall body. You haven't considered that?

Mr Corrigan : Outside of aged care what we did consider was looking at this from two perspectives. Firstly, in each state and territory, as you'd probably be aware, there's a guardian or an advocate which can be appointed for people who have lost capacity. We saw that those arrangements for those people who had lost capacity were working well and that, ultimately, for the most vulnerable older people who have lost legal capacity, those were the appropriate arrangements for ensuring their protection. What we then also looked at in terms of adult safeguarding was that the remit of, effectively, those guardians and advocates should be broadened. We said that the effective standard for their legal authority to act is that you have a person who is at risk who has care and support needs and, because of that vulnerability and risk, is unable to care for themselves. Part of that was a desire for us to address those people who may not have lost legal capacity but, because of social isolation and their dependence on an individual, may be subject to abuse. But it was also part of a broader understanding that what historically we've understood as these bright lines between one day having legal capacity and the next not really don't fit anymore with our understanding of dementia and other related instances. People with support can continue to make decisions, so the test for the authority of the guardian should move away from capacity to this notion of being at risk.

Dr FREELANDER: Thank you. Another issue is: was consideration given to staff training in terms of prevention of problems?

Mr Corrigan : One of the key recommendations of our report was a national plan to address elder abuse. In fact, just the week before last the Attorney-General announced that the government will be implementing a national plan. A key pillar of the national plan is improving not just community awareness but staff training on issues around elder abuse so that those who are working with vulnerable elderly people are able to identify concerns about elder abuse and know how and where to report.

Dr FREELANDER: Lastly, did you form a picture of what was the best model of care?

Mr Corrigan : Because of our limited way into aged-care laws, our remit didn't really extend to the best model of care. I think what was clear is that that was contested in submissions and research and that further research really needed to be done on that.

CHAIR: I have a follow-up question on your support for the creation of a major incident response team. Did you give any thought to how that would be structured? For example, who would generate a referral to the team? Would it be the provider? Would there be capacity for residents and their families to report and trigger an inquiry?

Dr MacKenzie : Staff, on becoming aware of an allegation or a suspicion of a serious incident, would be required to report to an independent oversight body. We didn't name the independent oversight body. We didn't provide in our recommendation where or who that independent oversight body should be, although within the current regulatory framework we suggested that the complaints commissioner was probably the best place for that oversight function.

Mr GEORGANAS: In the report and the things that you looked at, did you look at the ability of a staff member of whoever's doing the reporting to be able to do so without fear of repercussions? Was it an issue that perhaps many people may not want to report from fear of losing their job, their position, promotions et cetera within the aged-care facility or in the whole scheme—not being able to get other employment?

Dr MacKenzie : Yes, there were some whistleblower concerns in submissions. We didn't look at that in detail, but we recommended that essentially the current whistleblower protections in the Aged Care Act should continue for our recommended serious incident reporting scheme. Beyond that, we didn't look at that issue in detail.

Mr GEORGANAS: I'm trying to simplify it a little bit more. It is not so much whistleblowers, which gives the impression that there's a massive thing, but the simple, everyday requirements of actually reporting an incident. Did you find in your studies that people are perhaps a little reluctant to do so—not so much whistleblowing; you can call it whistleblowing, if you want. What are your requirements, as a staff member, to report if you see a particular incident within a facility; how detrimental, currently, would that be to someone when they're considering their career, their position et cetera; and how would we simplify it to make it easier for those people to do without fear of repercussions? Was that looked at at all—what are your views on that?

Dr MacKenzie : I think, in a broad sense, what our recommendations were driving at was to produce a cultural shift in aged-care facilities such that there's a culture of zero tolerance of abuse and neglect and a shift from a fear of reporting to; this is an incident that's occurred; how do we fix it and make sure that the person who is the subject of concern is supported; and how do we make sure that this doesn't happen again? A broader cultural shift is what has occurred.

Mr GEORGANAS: Would you say that that culture doesn't currently exist within the—

Dr MacKenzie : I don't think you could come to a broad conclusion on it. Certainly, that's the culture that we're supporting and promoting.

CHAIR: Thank you very much for your evidence today and also your submission. As mentioned at the beginning, you'll be provided with a Hansard transcript of today's proceedings. If there's anything you'd like to correct, you can do that through the committee secretariat preferably by 20 March. Thank you for being first cab off the rank this morning.