Proposed new Aged Care Act leaves gaps in rights

Jan 12, 2024
Nurse, portrait smile and medical for elderly care, retirement home or visit from doctor for appointment or checkup. Happy senior woman smiling with healthcare professional for therapy exam at clinic Image: iStock/PeopleImages

The current Aged Care Act, dating from the Howard Government era and infused with its neo-liberal ideology, is set to be repealed and replaced by a new one, purportedly incorporating a ‘rights basis’ as recommended by the Royal Commission on Aged Care Quality and Safety which reported in 2021.

The government released a draft of the new Act on December 14, the start of Australia’s summer holiday season, with comment due back as we are dusting the sand from our feet mid next month. The draft sets out a new governance framework for aged care, undoubtedly better than the old which, however, is a very low bar indeed.

Unfortunately, it is hard to kill the zombies that stalk the aged care policy corridors. Although some of the right words might now be there, the draft Act is still riddled with the old ideology – of a health department (‘System Governor’) which is all care but no responsibility, extensive reliance on markets to address consumer needs, albeit with some improvement in regulatory oversight.

What rights?

First the good news. The Act defines quality care in a good way and incorporates a long list of individual rights for participants in the aged care system. These are much needed and welcome advances. In many cases, the rights are carried over into other sections of the Act to shape the governance minutiae, and rights language appears to be scattered randomly through many other sections.

The general phrasing for each articulated right in section 20 is ‘An individual has a right to xxx’. Core to the new Act is this focus on the individual as a rights-bearing entity. Appropriately, the Act accepts that individual’s choices should be emphasised, recognised, and accepted.

However, the Act appears to ignore the reality that an individual is not a completely free-standing entity, disconnected from their surrounding context. Pace Margaret Thatcher, there is such a thing as a community. The draft Act has a Thatcherian individualistic emphasis, founded on a naïve belief in markets which can fix everything, and that government’s role is to sit back and weed out the occasional bad apple. This is not good enough.

These fundamental failures are most in evidence in the section on the right to ‘equitable access’ (section 20 (2)) which states:

An individual has a right to equitable access to:
(a) have the individual’s need for funded aged care services assessed, or reassessed, in a manner which is culturally safe, culturally appropriate, trauma-aware and healing-informed; and accessible and suitable for individuals living with dementia or other cognitive impairment; and
(b) palliative care and end-of-life care when required.

So, an individual has a right to assessment, and a right to palliative care, but nothing in between. Section 45 provides that the assessment report must be provided to the Health Department ‘as soon as practicable’, but there is no parallel requirement to provide it to the individual assessed in the same time frame.

Most importantly, there is no right to services to respond to assessed need. There is a weak ‘function’ assigned to the Department of Health ‘to facilitate equitable access to funded aged care services’ (Section 132) but no parallel right that needed services exist. Government has effectively washed its hands of any obligation to ensure that people can get the services they need, presumably on the invalid assumption that services will just emerge to respond to demand expressed in a perfectly functioning market. Section 20 does not create a right to information about quality of care that a person might experience, thus vitiating a key assumption that market participants can make informed choices. The idea of a government role in service development is missing from the Act.

The Aged Care Quality and Safety Commission is given a number of functions (section 141), but publishing information about relative quality of care is not one of them. Worse, in a later section (section 322), disclosure of information which might impact on a provider’s commercial interests is absolutely protected, with no offsetting consideration about how that protection might impact adversely on consumers’ interests.

The draft Act recognises decisions might be automated (Part 7), but nothing seems to have been learned from the Robodebt tragedy, and there is no requirement that decision algorithms are consistent with the Act’s right-based principles or any of the other provisions of the Act.

Finally, the new Act smacks of ‘rights washing’ – high sounding rhetoric is simply there to placate consumers and advocates, allowing providers to continue on their way unimpeded, and government to eschew any role in creating and steering a consumer-focused service system. And this ‘rights washing’ is up there for all to see. The draft Section 21 of the Act literally provides government and industry with a ‘get out of jail free’ card: ‘Nothing in this (aged care rights division of the new Act) creates rights or duties that are enforceable by proceedings in a court or tribunal’.

Although the government’s plan is for the new system to be in place from July 2024, there is still a lot of work to be done in making sure the new Act responds in a meaningful way to the issues raised in the Royal Commission on Aged Care Quality and Safety.

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