Royal Commission into Aged Care Time for a paradigm shift to protect the human rights of older Australians

Royal Commission into Aged Care Quality and Safety: Time for a paradigm shift to protect the human rights of older Australians

DR SARAH MOULDS, SENIOR LECTURER, UNISA JUSTICE & SOCIETY

The deeply disturbing findings of the Royal Commission into Aged Care Quality and Safety (the Royal Commission), and the stories of personal anguish, abuse and neglect so courageously shared by older Australians and their families, demand our full attention. In its Final Report, publicly released in March, 2021, the Royal Commission confirmed what many older Australians and their families had known for some time: Australia’s aged care system is in crisis. In 2019–20, residential aged care services reported 5718 allegations of assault under the mandatory reporting requirements of the Aged Care Act 1997 (Cth).1 In a survey considered by the Commission, one in every 20 residents in aged-care facilities reported having been physically abused.2 Just over 30% of respondents said they had experienced neglect.3 Older people are waiting for years for home care packages, some dying or suffering significant physical harm before receiving the care they need.4 Accountability mechanisms remain insufficient and weak.5 Those working in the aged care system (87% of whom are women) are also suffering from low wages, high workloads and workplace abuse as they ‘plug the gaps in the system’.6

Against this backdrop of deep and systemic failings, the Royal Commission made 148 recommendations, some of which are focused on effecting a fundamental restructuring of Australia’s aged care system and others seek to implement urgent changes to existing processes. One central idea permeates the Final Report’s eight volumes: the concept of dignity. The core idea is to promote the right of older Australians to play an active, empowered role in managing their own lives and making decisions about their own care.

The concept of dignity underpins internationally recognised human rights instruments including the Universal Declaration of Human Rights, which describes the ‘recognition of the inherent dignity … of all members of the human family as the foundation of freedom, justice and peace in the world’.7 The concept of dignity is the first and primary principle within the 1991 UN Principles for Older Persons, which also include principles of independence, participation, care, and self-fulfilment.8 The concept of dignity and the need to protect and promote the rights of older Australians is also familiar to policy makers in South Australia, particularly those who have developed the South Australian Charter of the Rights and Freedoms of Vulnerable Adults. 9

However, as the Royal Commission into Aged Care shows, integrating the concept of dignity into aged care policies, service delivery and regulatory and oversight frameworks takes more than familiarity with human rights concepts and language. It demands a ‘paradigm shift’ in the way we go about developing, implementing, enforcing and reviewing these frameworks. This article seeks to briefly summarise some of the key rightsrelated recommendations made by the Royal Commission in its Final Report and discusses their relevance for South Australia. It concludes by offering some thoughts as to the potential benefits of adopting a human rights approach to policy-making in this area in the future.

THE KEY HUMAN RIGHTS RECOMMENDATIONS MADE BY THE ROYAL COMMISSION INTO AGED CARE QUALITY AND SAFETY

Many of the Royal Commission’s recommendations addressed issues relating to functioning of the system of aged care in Australia and its resourcing,10 but two key areas of recommended legal reform related to: • Developing a rights-based legislative

and regulatory framework for a new aged care system,11 and • Implementing new legal duties and standards relating to quality and safety.12

The Royal Commission’s very first recommendation is that the Aged Care Act 1997 (Cth) should be replaced with a new Act to come into force by no later than 1 July, 2023.13 The new Act should contain a list of rights of people seeking and receiving aged care and make it clear that those rights should be taken into account in interpreting the new law.14

The list of rights should empower people seeking aged care to have equitable access to care services and the right to exercise choice between available services.15 The rights of those already receiving aged care should also be included, in particular the right to: • liberty, freedom of movement, and freedom from restraint; • autonomy and the presumption of legal capacity; • make decisions about their care and the quality of their lives; • social participation; • fair, equitable and non-discriminatory treatment in receiving care; and • voice opinions and make complaints.16

The Royal Commission also explained that the rights of those receiving end of life care should also be specifically protected, as well as the rights of those providing informal care for others.17

These rights are to be supported by a set of key principles, also enshrined in the new Act, that would guide the administration of the Act. These principles include ensuring the safety, health and wellbeing of people receiving aged care and putting older people first so that their preferences and needs drive the delivery of care.18 Additional principles focus on ensuring that older people are treated as individuals and are provided with

support and care in a way that promotes their dignity and respects them as equal citizens.19 Specific principles relating to the rights of Aboriginal and Torres Strait Islander peoples and those with diverse backgrounds were also recommended.20 The Royal Commission further recommended that the Act specifically include the principle that the Australian Government will ‘fund the aged care system at the level necessary to deliver high quality and safe aged care and ensure the aged care system’s sustainability, resilience and endurance.’21 Sufficient funding will be critical to ensuring that the rights proposed to be set out in the new Act can be realised.

Under the model recommended by the Royal Commission, compliance with these rights and principles would be supported by new governance structures: either a new Australian Aged Care Commission and an Australian Aged Care Advisory Council22 or a Cabinet Minister and Department of Health and Aged Care supported by a Council of Elders.23 The Federal Government has accepted the latter recommendation with the addition of an Australian Aged Care Advisory Council.24

Taken alongside a range of other specific recommendations designed to address particular aspects of abuse within the current aged care system such as those relating to the overuse of chemical restraints,25 the lack of culturallyappropriate care for Aboriginal and Torres Strait Islander peoples26 and the urgent need to remove young people with disabilities from aged care settings,27 these recommendations have been described as supporting the development of a new ‘human rights-based approach’ to legislative and regulatory design of aged care services in Australia.28

The concept of dignity is central to this human rights based approach, which is also supplemented by recommendations that aim to support older people’s autonomy and choice, for example by recommending greater access to support services at home,29 known as home care packages, and to clear the waiting list for this assistance.

BUT CAN IT WORK? IMPLEMENTING A RIGHTS-BASED APPROACH TO AGED CARE QUALITY AND SAFETY

In order to achieve this type of transition, the rights and principles listed in the new Act must be supported by robust oversight and accountability mechanisms, and there must be real consequences and remedies for breaches. The rights and principles must also be supported by sufficient funding to provide for the larger and better skilled workforce necessary to deliver high quality and safe aged care.

The Royal Commission’s recommendations move beyond the existing Charter of Aged Care Rights30 by linking rights concepts and principles with new legal duties on providers, including a general, positive and nondelegable statutory duty on providers to provide high quality and safe aged care.31 The Final Report also dedicates a number of chapters to describing the bodies and processes needed to enforce rights standards and key principles in practice, and to ensure accountability for performance breaches and remedies for sub-standard care. These include making changes to the Aged Care Quality Standards to better reflect rights-based concepts32 and amending the Quality of Care Principles 2014 (Cth) to require that the use of restrictive practices in aged care must be based on an independent expert assessment and subject to ongoing reporting and monitoring,33 similar to the approach in the National Disability Insurance Scheme.34

By recommending the inclusion of specific prohibitions (for example on the use of chemical restraints in the absence of direct doctor oversight)35 and targets (for example that no person under the age of 45 years lives in residential aged care from 1 January, 2022)36 within the proposed new legislative and regulatory regime, the Royal Commission has also sought to give legal ‘teeth’ to the normative standards articulated in internationally recognised human rights instruments.

Perhaps even more significantly, the new aged care system envisaged by the Royal Commission recognises the legal and political agency of older Australians by equipping consumers of aged care services with a range of new legal structures and pathways to assess and access the types of aged care services they consider will best promote and protect their dignity and rights. For example, establishing an independent Aged Care Safety and Quality Authority to provide an independent source of information for those seeking to understand and enforce care service standards37 as well as an Inspector-General of Aged Care to investigate, monitor and report on the administration and governance of the aged care system.38

It is this combination of features – the structural recognition of human rights concepts and principles within the proposed new legislative framework as well as the mechanisms designed to give individuals the power to access and enforce those standards in practice – that should inspire South Australian law and policy makers to re-imagine how it participates in the provision and regulation of aged care services in this State.

IMPLICATIONS FOR SOUTH AUSTRALIA

The federalisation of aged care services and the heavy reliance on federal funding across the sector has been increasing in

intensity since the enactment of the Aged Care Act 1997. As a result, it is not surprising that the vast bulk of recommendations contained in the Royal Commission’s report are directed at the federal jurisdiction. However, the new aged care system envisaged in the Final Report has significant implications – and opportunities – for the States and Territories.

Currently, there are over 20 separate South Australian Acts that interact with or regulate the provision of aged care services in South Australia, or that seek to protect and promote the rights of older South Australians.39 However, at a state level, there are only weak accountability measures in place to protect Australians suffering from elder abuse or substandard care. This is despite efforts to introduce a rights-based framework to protect older people in the form of the Ageing and Adult Safeguarding Act 1995 (which established the Adult Safeguarding Unit) and the adoption of the Strategy to Safeguard the Rights of Older South Australians 2014-2021 which includes a South Australian Charter of the Rights and Freedoms of Vulnerable Adults.40

The South Australian Charter contains rights principles that align closely with those recommended by the Royal Commission, including the right to be treated with dignity and humanity,41 the right to live an autonomous and self-determined life, and the right to enjoy the highest attainable standard of physical and mental health.42

However, despite the reference to rightsbased principles in the Strategy and the Ageing and Adult Safeguarding Act 1995 (SA), the Adult Safeguarding Unit is limited in power, because it can only investigate and escalate reports of abuse. It has no legal authority to enforce rights standards in care or treatment. It cannot offer a legal remedy for those experiencing abuse. Moreover, despite the best intentions of those involved in designing and implementing these policies, neither the Adult Safeguarding Unit nor the Charter have proven capable of providing the type of ‘paradigm shift’ the Royal Commission envisages in its Final Report.

The Royal Commission’s recommendations offer an important opportunity for South Australia to address these shortcomings. Immediate action could be taken at the State level to respond to specific practical problems identified by the Royal Commission including improving access to aids, equipment and assistive technology within residential care settings, improving access to state-based health services and improving transfers between hospitals and residential care.43 This would align directly with the Royal Commission’s recommendation to improve access to State and Territory health services by people receiving aged care by 1 July, 2022.44

South Australia could also take a leadership role at the federal and state level in facilitating active participation by older Australians in policy and program design. This could include active participation in the proposed federal Council of Elders,45 a high-level older people’s advisory body with a wide remit to consult older people and advise the Minister and Department on any aspect of aged care.46 A similar Council of Elders should be established at the State level to guide South Australian policy and program development and to review existing regulatory frameworks.

South Australia could also play a leadership role in amending the National Health Reform Agreement47 to include an explicit statement of the respective roles and responsibilities of approved aged care providers and State and Territory health care providers to deliver health care to people receiving aged care. South Australia could also conduct a state-wide audit of existing laws and policies relating to aged care and the protection and promotion of the rights of older South Australians – perhaps through an expansion of the existing consultative process related to the development of a new Strategy to Safeguard the Rights of Older South Australians by the Office for Ageing Well or through a reference to the South Australian Law Reform Institute - to determine the extent to which these laws and policies adhere to and promote the human rights standards articulated by the Royal commission in its Final Report. Existing independent and not-for-profit agencies, such as the Council of the Aged (SA) and the Aged Rights Advocacy Service, may be well placed to facilitate or contribute to such an audit.

CONCLUSION

The shameful realities documented by the Royal Commission into Australia’s aged care system go well beyond legislative shortcomings and resource inadequacies. They speak to a culture of abuse and neglect that has been ingrained in the systems designed to support our elders, our parents and grandparents, including during their most vulnerable years.

Through its lengthy Final Report, the Royal Commission has signalled a pathway forward. It envisages a new aged care system for Australia that is not just ‘addressing gaps’ in existing systems. The new aged care system outlined by the Royal Commission is led by and for older Australians and funded to protect and promote their dignity. It is a system that is underpinned by a legal framework that acknowledges the human rights of older Australians and seeks to give practical meaning to these standards by imposing legal duties on providers and introducing new independent oversight and enforcement mechanisms. This new aged care system also offers opportunities for South Australia to build on its commitment to protect and promote the rights of older South Australians.

There are signs of hope from the Federal Government’s response to the Final Report including a commitment to a new Act and the $17.7 billion aged care package (spent over five years) announced in the 2021-2022 Federal Budget.48 This expenditure includes 80,000 more home care packages, as well as funding for providers to increase the time nurses and carers are required to spend with their patients, a commitment to provide an additional 33,800 training places for personal carers, and the development of an Indigenous workforce.49 Another sign of hope is the development of a new Strategy to Safeguard the Rights of Older South Australians by the South Australian Office for Ageing Well, which appears to have a genuine commitment to including the voices of older South Australians.

As the Australian Human Rights Commission has warned, the stakes are high:

If we don’t listen to older people, we end up with systems that fail to meet their needs. We need to put people at the heart of all aged care initiatives, so that the care received by every Australian is not ‘just good enough’ but is ‘more than good enough’.50

Nothing short of a ‘paradigm shift’ can make this vision come to reality. B

Endnotes 1 Royal Commission into Aged Care Quality and Safety, (Final Report, March 2021) ‘A Summary of the

Final Report’ p. 68 (referred to as Summary of

Final Report) available at < https://agedcare. royalcommission.gov.au/sites/default/ files/2021-03/final-report-executive-summary.pdf> 2 Mary Lloyd, Almost 40 per cent of residents in aged care facilities have been abused, data released by royal commission shows, ABC Online, 22

December 2021 available at <https://www.abc.net. au/news/2020-12-22/royal-commission-estimates40-pc-aged-care-residents-face-abuse/13007864 > 3 Ibid. 4 Summary of Final Report, p. 66. 5 Ibid, p. 154.

6 Tracey Burton, ‘Want to help women?

Pay more for aged care’ Probono Australia , 21 April 2021 available at <https:// probonoaustralia.com.au/news/2021/04/ want-to-help-women-pay-more-for-agedcare/?utm_source=Pro+Bono+Australia++email+updates&utm_campaign=a9b08c9d8b-

News+22_April_21&utm_medium=email&utm_ term=0_5ee68172fb-a9b08c9d8b-148096224&mc_ cid=a9b08c9d8b&mc_eid=2f7320a758 > 7 United Nations General Assembly, Universal

Declaration of Human Rights, 10 December 1948, 217

A (III), Preamble. 8 United Nations General Assembly, Principles for

Older Persons (Resolution 46/91) 16 December 1991. 9 Government of South Australia, Department of

Health, South Australian Charter of the Rights and

Freedoms of Older People, (2014) available at <https:// www.sahealth.sa.gov.au/wps/wcm/connect/ public+content/sa+health+internet/conditions/ stop+elder+abuse/stop+elder+abuse> 10 Summary of Final Report, above n 2, Chapters 4-16 and 26. 11 Ibid, Chapters 1 & 2. 12 Ibid, Chapter 3. 13 Royal Commission into Aged Care Quality and

Safety, (Final Report, March 2021) ‘List of

Recommendations’ Recommendation 2 (referred to as List of Recommendations) available at <https:// agedcare.royalcommission.gov.au/publications/ final-report-list-recommendations>. 14 Ibid. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid, Recommendation 3. 19 Ibid. 20 Ibid, Recommendation 47. 21 Ibid, Recommendation 3. 22 Ibid, Recommendations 5 and 7. (as recommended by Commissioner Pagone). 23 Ibid, Recommendations 8-9 (as recommended by

Commissioner Briggs) 24 Australian Government, Department of Health,

Australian Government Response to the Final Report of the Royal Commission into Aged Care Quality and Safety, (2021) p. 4-11 (referred to as Federal Government’s

Response to Final Report) available at <https:// www.health.gov.au/resources/publications/

australian-government-response-to-the-final-reportof-the-royal-commission-into-aged-care-qualityand-safety>. 25 Ibid, Recommendation 17. 26 Ibid, Recommendation 47. 27 Ibid, Recommendation 30. 28 Stephen Duckett and Hal Swerissen, Report:

Rethinking aged care: emphasising the rights of older

Australians (Grattan Institute, October 2020) available at < https://grattan.edu.au/wp-content/ uploads/2020/10/Rethinking-Aged-Care-Grattan-

Report.pdf> 29 List of Recommendations, above n 27,

Recommendation 39. 30 User Rights Principles 2014 (Cth), Schedule 1. 31 List of Recommendations, above n 27,

Recommendation 14. In addition, it was recommended that any entity that facilitates the provision of aged care services funded in whole or in part under the new Act should have a duty to ensure that any worker whom it makes available to perform personal care work has the experience, qualifications, skills and training to perform the particular personal care or nursing care work the person is being asked to perform. 32 Ibid, Recommendation 13. 33 Ibid, Recommendation 14. 34 See National Disability Insurance Scheme (Restrictive

Practices and Behaviour Support) Rules 2018 (Cth). 35 Ibid, Recommendation 17. 36 Ibid, Recommendation 74. 37 Ibid, Recommendation 10 (recommend by

Commissioner Briggs). 38 Ibid, Recommendation, 12. 39 See e.g. Advance Care Directives Act 2013 (SA); Aged and Infirm Persons Property Act 1940 (SA); Ageing and

Adult Safeguarding Act 1995 (SA); Carers Recognition

Act 2005 (SA); Consent to Medical Treatment and

Palliative Care Act 1995 (SA); Coroners Act 2003 (SA); Correctional Services Act 1982 (SA); Criminal

Law Consolidation Act 1935 (SA); Equal Opportunity

Act 1984 (SA); Guardianship and Administration Act 1993 (SA); Intervention Orders (Prevention of Abuse) Act 2009 (SA); Mental Health Act 2009 (SA); ; Powers of

Attorney and Agency Act 1984 (SA); Residential Parks

Act 2007 (SA); Retirement Villages Act 1987 (SA);

South Australian Civil Administrative Tribunal Act 2014 (SA); South Australian Public Health Act 2011 (SA);

Summary Offences Act 1953 (SA); Supported Residential

Facilities Act 1992 (SA). 40 Government of South Australia, Office for

Ageing Well, Strategy to Safeguard the Rights of Older

South Australians 2014-2021 (2014) available at <https://www.sahealth.sa.gov.au/wps/wcm/ connect/2e5d0e004459d5af88d9aa76d172935c/

Strategy+to+Safeguard+the+Rights+of+

Older+South+Australians+WEB+FINAL.pdf?M

OD=AJPERES&amp;CACHEID=ROOTWOR

KSPACE-2e5d0e004459d5af88d9aa76d172935cnwKmYs7>. 41 Government of South Australia, Department of

Health, South Australian Charter of the Rights and

Freedoms of Older People, (2014) available at <https:// www.sahealth.sa.gov.au/wps/wcm/connect/ public+content/sa+health+internet/conditions/ stop+elder+abuse/stop+elder+abuse> 42 Government of South Australia, Office for Ageing

Well, Strategy to Safeguard the Rights of Older South

Australians 2014-2021 (2014) p. 8. 43 See e.g. Council of the Aged, ‘Royal Commission into Aged Care Quality and Safety’ webpage, available at < https://www.cotasa.org.au/policy/ royal-commission-aged-care-quality-safety.aspx>. 44 List of Recommendations, above n 27,

Recommendation 70. 45 Ibid, recommended by Commissioner Briggs. 46 Ibid, Recommendation 9. 47 Ibid, Recommendation 69 48 Michell Grattan, ‘Budget splashes cash, with $17.7 billion for aged care and a pitch to women’, The Conversation, online, 11 May 2021 available at < https://theconversation.com/ budget-splashes-cash-with-17-7-billion-foraged-care-and-a-pitch-to-women-159227?utm_ medium=email&utm_campaign=Budget%20 newsletter&utm_content=Budget%20newsletter +CID_0a40dbb70de7f95e714dc644b807c51d& utm_source=campaign_monitor&utm_ term=Budget%20splashes%20cash%20with%20 177%20billion%20for%20aged%20care%20 and%20a%20pitch%20to%20women>. 49 Ibid. 50 Australian Human Rights Commission, ‘Statement on the Aged Care Royal Commission Report’,

Medial Release, Canberra, 1 March 2021, available at < https://humanrights.gov.au/about/news/ media-releases/statement-aged-care-royalcommission-report>.

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