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Aged Care (Single Quality Framework) Reform Bill 2018

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2016-2017-2018

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

House of REpresentatives

 

 

 

 

 

 

 

 

 

 

 

AGED CARE (SINGLE QUALITY FRAMEWORK) REFORM BILL 2018

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Aged Care, the Hon Ken Wyatt AM, MP)







AGED CARE (SINGLE QUALITY FRAMEWORK) REFORM BILL 2018

 

OUTLINE

 

Purpose

The Bill amends the  Aged Care Act 1997  (the Aged Care Act) and the Australian Aged Care Quality Agency Act 2013  (the Quality Agency Act) to:

·          make provision for a single set of aged care quality standards (the Aged Care Quality Standards), to be implemented in the Quality of Care Principles,that apply to all aged care providers under the Aged Care Act; and

·          vary the functions of the Chief Executive Officer of the Australian Aged Care Quality Agency (Quality Agency) to reference the Aged Care Quality Standards.

 

The Bill also amends the Freedom of Information Act 1982 (the FOI Act) to ensure that documents containing protected information acquired by the Quality Agency in the course of its functions are exempt from disclosure. The unauthorised disclosure of protected information is a criminal offence.

 

Background

Implementing the Aged Care Quality Standards contributes to the establishment of a single consolidated and streamlined quality framework for all aged care services as announced in the 2015-16 Budget.

 

Under the existing quality framework, aged care providers funded under the Aged Care Act and/or the Aged Care (Transitional Provisions) Act 1997 (the ACTP Act) Act are required to meet one or more sets of aged care quality standards depending on the type of care that the service delivers (set out in Division 54 of the Aged Care Act and the Quality of Care Principles). These standards include:

·          accreditation standards for residential care;

·          home care standards for home care; and

·          flexible care standards for short term restorative care.

 

The Bill enables the implementation of the Aged Care Quality Standards that would replace the existing standards applicable to residential, home and flexible care services.

 

Consultation

Since September 2015, the Department has been working closely with stakeholders to develop the single quality framework.

 

As part of the consultation process, the Department has met with relevant Commonwealth agencies and a wide range of stakeholders to seek input on the content of the quality standards. Consultations have occurred with aged care sector committees, technical advisory groups, industry and consumer stakeholder bodies, other Commonwealth agencies (including the Department of Social Services, the National Disability Insurance Agency, and the Australian Commission on Safety and Quality in Health Care). In addition, the Department released a consultation paper on draft quality standards, titled ‘ Single Aged Care Quality Framework - Draft Quality Standards Consultation Paper 2017’ which received over 200 submissions.

 

There was support for a single set of standards, applicable across all aged care programs. Stakeholders noted that this would reduce duplication of effort for providers delivering more than one type of service and be of greater value to consumers.

 

However, there were questions raised about whether the proposed implementation date from 1 July 2018 would be achievable, noting transitional arrangements need to provide sufficient time for the sector to prepare, including modifying their current quality frameworks and educating staff and consumers about the changes.

 

As a result of these concerns, a 12 month transition period is proposed through the

1 July 2019 commencement of the amendments in this Bill.

 

Financial Impact Statement

The Bill does not have a financial impact.

 



Statement of Compatibility with Human Rights

 

This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

AGED CARE (SINGLE QUALITY FRAMEWORK) REFORM BILL 2018

 

The Bill is compatible with the human rights and freedoms recognised or declared in the international Instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Bill enables the implementation of the new Aged Care Quality Standards that will apply to residential, home and flexible aged care services. The Bill exempts protected information mentioned in Part 7 of the Quality Agency Act from disclosure under the FOI Act.

 

Human rights implications

The Bill engages the following human rights:

  • the right to an adequate standard of living
  • the right to the enjoyment of the highest attainable standard of physical and mental health;
  • the right to protection from exploitation, violence and abuse; and
  • the right to not be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

 

The Bill is compatible with the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health as contained in article 11(1) and article 12(1) of the International Convention on Economic, Social and Cultural Rights , and articles 25 and 28 of the Convention of the Rights of Persons with Disabilities .

 

The Aged Care Quality Standards focus on achieving quality outcomes for consumers by enabling consumers and carers to influence the design and delivery of the services in order to ensure that they are consistent with the consumer’s preferences. The standards support care recipients to achieve a high standard of living and high standards in their physical and mental health.

 

The Bill engages the right to protection from exploitation, violence and abuse as contained in article 20(2) of the International Covenant on Civil and Political Rights and article 16 of the Convention of the Rights of Persons with Disabilities . The standards are intended to promote the delivery of quality aged care services by accredited approved providers. The instrument is intended to increase protection for aged care residents against potential exploitation, violence and abuse.

 

The Bill engages the right to not be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation contained in article 17 of the International Covenant on Civil and Political Rights . The Bill supports the right to privacy by exempting protected information, which can include personal information, from disclosure under the FOI Act.

 

Conclusion

The Aged Care (Single Quality Framework) Reform Bill 2018 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

The Hon Ken Wyatt AM, MP, Minister for Aged Care





 

AGED CARE (SINGLE QUALITY FRAMEWORK) REFORM BILL 2018

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

This clause provides that the Bill, once enacted, may be cited as the Aged Care (Single Quality Framework) Reform Act 2018 .

 

Clause 2 - Commencement

This clause provides that the Bill will commence on 1 July 2019.

 

Clause 3 - Schedule

This clause provides that legislation that is specified in the Schedule to this Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Bill has effect according to its terms.

 

SCHEDULE 1 - Amendments

 

Aged Care Act 1997

 

Item 1 - Paragraphs 54-1(1)(d) to (g)

This item specifies that approved providers of residential, home and flexible care services are required to comply with the Aged Care Quality Standards.

 

This item repeals the requirement that approved providers of aged care services must comply with the Accreditation Standards, Home Care Standards or Flexible Care Standards, as relevant.

 

Item 2 - Sections 54-2 to 54-5

In relation section 54-2(1), while the Aged Care Act sets out the key responsibilities of approved providers of aged care, the Act also provides for standards for the quality of care and services which are set out in the Quality of Care Principles. This item repeals the authorisation in the Act to set out Accreditation Standards, Home Care Standards and Flexible Care Standards in the Quality of Care Principles and authorises standards to be known as the Aged Care Quality Standards to be set out in the Quality of Care Principles.

 

In relation to section 54-2(2), the item preserves the operation of the current section54-5(2), which allows different kinds of flexible care services to be required to comply with different standards. For example, at present only approved providers of one type of flexible care, Short Term Restorative Care, are required to comply with the Standards under the Act.

 

Item 3 - Paragraph 86-9(1)(k)

Part 6.2 of the Aged Care Act is about protected information and the use and disclosure of protected information. Under paragraph 86-9(1)(k) of the Aged Care Act, the Secretary of the Department of Health may make public information about an aged care service including about the service’s accreditation record. A corresponding provision appears in paragraph 52(1)(g) of the Quality Agency Act but this provision references a service’s status under both the Aged Care Act and the Quality Agency Act. This item amends paragraph 89-1(1)(k) to consistently refer to both Acts.

Australian Aged Care Quality Agency Act 2013

 

Item 4 - Section 3

Repeals the definition of Accreditation Standards.

 

Item 5 - Section 3

This item inserts a definition of Aged Care Quality Standards. The Aged Care Quality Standards mean the Aged Care Quality Standards set out in the Quality of Care Principles made under section 96-1 of the Aged Care Act.

 

Item 6 - Section 3

This item repeals the definition of Home Care Standards.

 

Item 7 - Paragraphs 12(a) and (b)

Paragraph 12(a) of the Quality Agency Act gives the CEO of the Quality Agency the function of accrediting residential aged care services in accordance with the Quality Agency Principles and the Accreditation Standards. This item repeals the reference to the Accreditation Standards as the function is accurately described without the reference, and the definition of Accreditation Standards is repealed by item 5. For the same reason, the item repeals the reference to Home Care Standards in paragraph 12(b).

 

Item 8 - Paragraph 12(d)

Under paragraph 12(d), the CEO has the function of advising the Secretary of the Department of Health about aged care services that do not meet the appropriate aged care quality standards. This item substitutes the reference to the Accreditation Standards and the Home Care Standards with a reference to the Aged Care Quality Standards.

 

Freedom of Information Act 1982

 

Item 9 - Schedule 3

Part 7 of the Quality Agency Act relates to protected information and the use and disclosure of protected information. Section 52 is about the information regarding an aged care service that the CEO may make publicly available. Paragraph 52(1)(g) refers to information about the service’s status under the Quality Agency Act and Aged Care Act, and specifically references the service’s accreditation record.

 

Section 48 makes it an offence for a person, in the course of performing their duties, functions or powers, to make a record of, disclose or otherwise use information that is protected information unless the conduct is authorised by law. Part 3 of the Freedom of Information Act 1982 entitles a person to obtain access to a document of an agency, other than an exempt document .

 

This item inserts a reference to the Quality Agency Act, subsection 48(1) and section 50 in Schedule 3 of the Freedom of Information Act 1982 for the purpose of ensuring that documents containing protected information acquired by the Quality Agency in the course of its functions are exempt from disclosure.

 



 

Item 10 - Transitional rules

This item authorises the Minister to, by legislative instrument, make rules on matters of a transitional nature relating to the amendments or repeals made by this Act. The purpose of this provision is to allow the Minister, by legislative instrument, to make rules of a transitional nature relating to the transition of approved providers to the Aged Care Quality Standards.