Terms of Reference – Royal Commission into Aged Care Quality and Safety
4 October 2018
The Law Council of Australia has welcomed the Australian Government’s decision to establish a Royal Commission into Aged Care Quality and Safety (the Royal Commission).
The decision to consult with the community, including residents, their families and aged care providers, prior to settling the Royal Commission’s detailed Terms of Reference, was also welcomed.
The Law Council gratefully received input from the Queensland Law Society (QLS), Law Society of New South Wales (LSNSW), Law Society Northern Territory (LSNT), the Law institute of Victoria (LIV) and the Law Society of South Australia (LSSA), its National Elder Law and Succession Law Committee, and its Family Law Section regarding the draft Terms of Reference.
The Australian Government has indicated that the Royal Commission’s Terms of Reference are likely to cover:
- The quality of care provided to older Australians, and the extent of substandard care;
- The challenge of providing care to Australians with disabilities living in residential aged care, particularly younger people with disabilities;
- The challenge of supporting the increasing number of Australians suffering dementia and addressing their care needs as they age;
- The future challenges and opportunities for delivering aged care services in the context of changing demographics, including in remote, rural and regional Australia; and • Any other matters that the Royal Commission considers necessary.
As a result of the input received the Law Council has recommended that in addition to the above matters, the Terms of Reference should also address:
- Incidences of elder abuse in residential aged care, including physical, emotional, financial and chemical abuse, as well as incidences of elder abuse in residential aged care occurring as a result of exploitation by family and friends;
- The experiences of Aboriginal and Torres Strait Islander Australians in residential aged care, including members of the Stolen Generations, as well as of individuals from cultural, religious or linguistically diverse backgrounds;
- The extent to which the rights of residents in residential aged care are respected;
- Options for, and quality of, care provided to people with an intellectual disability or other cognitive impairment;
- Current shortcomings in the availability and quality of residential care provided for Australians with disability who can no longer be cared for by their family and are too young for aged care;
- The adequacy of current requirements, qualifications and training for people who work in residential aged care;
- The role of health practitioners in delivering aged care, including the provision of medication to residents, and the adequacy of current health practitioner ratios and the Medicare framework to ensure quality health care for aged care residents;
- The adequacy and effectiveness of the current legislative framework governing residential aged care in Australia in ensuring that quality of care is provided. This should include the regulation and accreditation of aged care providers and facilities, the compliance of aged care providers with relevant laws, and the need to address any legislative gaps or inconsistencies. The following issues should, for example, be addressed:
- the appropriateness of existing practices and regulation concerning admissions to aged care facilities; o challenges in aged care with regards to the law and substituted decision-making;
- unconscionable industry practices of aged care operators, including contracting practices;
- the effectiveness of the current complaints system within the aged care sector; and
- the adequacy of protections available to ‘whistle-blower’ employees in the residential aged care sector to encourage the reporting of elder abuse without fear of retribution;
- The economic basis of the aged care system, including its overheads and profits, and its impact upon the care of individuals, their families and dependents affected by it. This should include:
- an evaluation of the standard of care provided by not-for-profit aged care providers, compared to the for-profit sector; and
- measures to increase access to quality residential aged care to more Australians lacking financial means;
- Access to legal education and legal assistance services within residential aged care to build an increased understanding of residents’ rights and remedies under the law amongst residents, their families and their carers; and
- The need for the Royal Commission to have regard to the findings and recommendations of the Australian Law Reform Commission’s (ALRC’s) recent Elder Abuse: A National Legal Response report as an important starting point for its work.
The Law Council may also make a submission to the Royal Commission in due course.