'Neglect' in the Interim: Aged Care Royal Commission releases preliminary conclusions

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This article was written by Kim O'ConnellLuke Hawthorne, Chloe Moore and Diana Liu.

The Royal Commission into Aged Care Quality and Safety (Aged Care Royal Commission) has released its Interim Report, Neglect.  This alert focuses on the inconvenient truths considered by the Aged Care Royal Commission, the preliminary conclusions reached in the Interim Report, and outlines a roadmap for the hearings next year.

The report was prepared by Commissioners Tracey and Briggs, before the unexpected passing of Commissioner Tracey on 11 October 2019.  It provides an update on the progress of the Aged Care Royal Commission.

In summary, the Aged Care Royal Commission has found the aged care system fails to meet the needs of older Australians, and that the sector fails to provide "uniformly safe and quality care", is too often "unkind and uncaring towards older people" and, "in too many instances, it neglects them."  The Interim Report finds that a fundamental overhaul is needed of the aged care system and the way it is designed, funded and regulated.

Service providers, Government agencies and other participants in the aged care and health sectors should expect significant regulatory review and potentially comprehensive overhaul of legislative requirements for the sector following from the ultimate findings of the Aged Care Royal Commission.

In its Interim Report, The Aged Care Royal Commission identifies three areas where immediate action can be taken:

  • provision of more Home Care Packages to reduce the waiting list for higher level care at home
  • a reduction of the significant over-reliance on chemical restraint in aged care, including through the seventh Community Pharmacy Agreement; and
  • stopping the flow of younger people with a disability into aged care, and speeding up the process of getting those young people who are already in aged care, into suitable alternative accommodation.

The Interim Report also identifies the following systemic failures, reporting that the aged care sector:

  • is designed around transactions, not relationships or care
  • minimises the voices of people receiving care and their loved ones
  • is hard to navigate and does not provide information for individuals and their families needing to make informed choices about their care
  • relies on a regulatory model that does not provide transparency or an incentive to improve; and
  • has a workforce that is under pressure and under-appreciated that lacks key skills.

Of course, the Interim Report does not contain the final recommendations of the Aged Care Royal Commission – however, all participants in the Australian health care sector should anticipate significant systemic reforms being proposed in the Final Report of the Aged Care Royal Commission, arising from the issues it has identified so far.

Background to the Aged Care Royal Commission

The Aged Care Royal Commission was established on 8 October 2018, and was initially headed by Royal Commissioners the Honourable Richard Tracey AM, RFD, QC and Ms Lynelle Briggs AO. The Honourable Tony Pagone QC was appointed on 13 September 2019 and has replaced Commissioner Tracey as Chairman.  To date, the Aged Care Royal Commission has received 6824 public submissions and it will continue to accept submissions until the end of April 2020.

The Final Report is due on 12 November 2020.

Inconvenient truths observed by the Royal Commission to date

  • Information about, and access to, aged care
    • The aged care system is difficult to navigate, complex and confusing.
    • My Aged Care is not yet successfully working as the front door to the aged care system, and older people face challenges in accessing the website or call centre.
    • Older people face confusing and duplicative assessments and are not supported to connect to services.
    • There are gaps in information available to compare the availability and quality of services.
  • Waiting list for home care
    • Many older people face a very long waiting list for aged care services, in which some people can die before they are able to access care.
    • People in regional and remote areas have to wait longer for the services that they need.
    • There are long waiting times for Home Care Packages because demand has far outstripped supply, without up to date information available on a person's place in the queue.
  • Circumstances and challenges facing Aboriginal and Torres Strait Islander people
    • Aboriginal and Torres Strait Islander people have a strong preference to remain with their family in their communities. However, this can be challenging in remote communities with few aged care services and a lack of respite care.
    • Aboriginal and Torres Strait Islander people face additional barriers in accessing aged care services.
    • They want to receive aged care services from people and organisations they know and trust, and, where possible, that are Aboriginal and Torres Strait Islander controlled and staffed.
    • Place-based models may be more sustainable in providing services to meet the needs identified by and for local Aboriginal and Torres Strait Islander communities.
  • Restrictive practices to restrain or pacify people
    • Restrictive practices are common in Australia, however restrictive practices have been found to have adverse impacts and are not supported by evidence of efficacy or safety.
    • An overarching reason for the use of restraint in aged care is because of a focus on managing symptoms rather than addressing the underlying cause.
    • The use of restrictive practices arises from neglect, with staff inadequately educated and trained.
    • The recommendations in the Final Report will be to reduce and eliminate reliance on restrictive practices.
  • Workforce problems
    • Aged care workers and professionals often have limited on-the-job training and insufficient knowledge, compounded by personal care workers having no mandatory minimum qualification.
    • The aged care sector has difficulty attracting sufficient numbers of people with the right skills, especially registered nurses, particularly in regional and remote areas.
    • A coordinated approach to workforce planning is required to create a much larger workforce with the skills to care for people with forms of dementia and significant levels of frailty or impairment in home or residential settings.
    • The Aged Care Royal Commission's further inquiries will explore the reforms needed in the aged care, vocational education and training, and higher education sectors to provide aged care workers with the skills and knowledge to deliver person-centred and specialised care.
    • The Final Report will consider options to ensure staffing levels, and the mix of staffing, are sufficient to ensure quality and safe care.
  • Plight of younger people forced into aged care
    • There is a lack of clarity about who the younger people in residential aged care are, however most are either people with a disability, people who have palliative and end of life care needs, people with age-related conditions (for example, early onset dementia) or people assessed as having an early need for aged care services.
    • The admission of younger people to residential aged care is a symptom of the failures of other systems.
    • Aged care is inappropriate for younger people, as they face social isolation and frustration and do not have access to the care available for people with complex care needs.
    • There is evidence that the placement of younger people in residential aged care is inappropriate from a human rights perspective.

Preliminary conclusions of the Aged Care Royal Commission identified in the Interim Report

We have identified four key conclusions about the need for change that clearly emerge from the Interim Report.

These are early observations. The Interim Report notes the Aged Care Royal Commission will make recommendations on how to improve the experience of older people and their families in the Final Report.

Access to the system and information

From the numerous instances identified throughout the Interim Report, the Aged Care Royal Commission reasons that the aged care system can be improved to provide users with greater access to the information necessary to compare the quality, safety and cost of aged care services in their area - including to find accurate information about waiting lists. The preliminary conclusion of the Aged Care Royal Commission calls for:

  • information to enable people to make comparisons of the quality safety and cost of services in their local area;
  • information about where to go to get help, including appropriate advocacy services; and
  • accurate information about the length and progress on home care waiting lists, including well informed call centre staff, and the use of plain and direct language in correspondence.

Home care packages

The Aged Care Royal Commission believes that significant additional funding is "needed immediately and in the future" to increase older Australians' access to home care. The Interim Report calls for additional funding to be provided for Home Care Packages to ensure that supply meets community expectations.

Most options proposed for reform of home care packages are focused on the national prioritisation queue – however, the Interim Report argues there is a systemic failure in the delivery of home care.

Restrictive practices

The Aged Care Royal Commission believes a significant change in medical and operational practice is required to address the issue of restrictive practices in Australia. While the Interim Report foreshadows definitive recommendations for reform, the following key issues emerge:

(a) Training and education

Both the aged care and health sector, including medical practitioners, should receive greater training to "effectively respond to the complex behavioural and psychological symptoms of dementia". Personal care workers, nurses, medical practitioners and allied health professionals should all receive training and support as part of their core competencies and through ongoing training.

(b) Regular and targeted review of people taking psychotropic medication

The finding that there is significant over-reliance on chemical restraints in aged care,  has resulted in a preliminary recommendation that the Government should intervene early in the current negotiations regarding the seventh Community Pharmacy Agreement (7CPA).

The Aged Care Royal Commission's preliminary view is that the Australian Government, the Pharmacy Guild of Australia, and the Pharmaceutical Society of Australia should:

  • lift the cap on funding to enable reviews to be conducted once every year, including when a person enters a residential aged care facility, or otherwise where there is a significant change to the resident's condition or medication regimen;
  • amend the Residential Medication Management Review Patient Eligibility Criteria to incorporate people in residential respite care and transitional care;
  • consider mechanisms to enhance the quality and consistency of reviews, including auditing of service provision; and
  • consider mechanisms, including additional government-subsidised processes, to support pharmacists to be involved in the implementation and monitoring of recommendations made during the review process.

(c) Reform to the pharmaceutical benefits scheme

Greater safeguards against the inappropriate prescription of antipsychotic medications may be needed, including limiting their indication on the PBS in residential aged care facilities to registered psychiatrists who are likely to have greater knowledge about the diagnosis and treatment of psychiatric and psychological disorders

(d) A national framework for restrictive practices

A key conclusion of the Interim Report is the lack of a national framework for the use of restrictive practices in Aged Care, noting in contrast the implementation by the disability sector of the Australian Law Reform Commission's recommendations in relation to the use of restrictive practices for people with disabilities.

In particular, the Aged Care Royal Commission singles out the model implemented by the National Disability Insurance Agency which includes a requirement to engage a 'behaviour support practitioner', whom the National Disability Insurance Scheme Quality and Safeguard Commissioner approves, the development and lodgement of a behaviour support plan, and monthly reporting and oversight by a Senior Practitioner in the Quality and Safeguard Commission.

Young People in Residential Aged Care

The Commonwealth Department of Health told the Aged Care Royal Commission that the 6,000 younger people with a disability living in aged care is a "somewhat intractable problem" – instead, the Aged Care Royal Commission has indicated that it considers the situation of younger people living in aged care to be a "national embarrassment".

The Interim Report indicates that the Aged Care Royal Commission will continue to examine the issues of policy and service interfaces between State, Territory and Commonwealth Government programs and will hold a future hearing dedicated to this issue – in the meantime, the Commission has identified the following as some of the priorities for action:

(a) To improve data collection

The Aged Care Royal Commission will continue to seek data in relation to young people in residential aged care to monitor their number and characteristics.  The Interim Report foreshadows that this data may inform "more ambitious and specific targets" for a reduction of the number of young people residing in aged care facilities.

(b) Avoiding new admissions to residential aged care from hospital

Reform is needed to avoid young people entering the aged care system after hospital, including greater access and regulatory provision for interim accommodation.

(c) Independent and individualised advocacy

Drawing comparisons with other statutory insurance schemes, the Interim Report advocates for 'system wranglers' to assist young people in aged care to exit the system and find alternative accommodation and care.

(d) Government action rather than "waiting for the market"

The Interim Report calls for government intervention – including proposals to actively participate in the market (as do other statutory insurers), or by direct investment in housing or Specialist Disability Accommodation.

The Aged Care Royal Commission believes that (subject to very limited exceptions) by 2022 no young people should be entering residential aged care, and by 2025 no young people should be living in residential aged care,except for those who choose to be there. The Aged Care Royal Commission does not consider that the Commonwealth Government's Younger People in Residential Aged Care – Action Plan in its current form will achieve even its limited targets – it does not "do enough, soon enough".

Key areas for Royal Commission's work over the next 12 months

The Interim Report draws primarily on hearings conducted between February and July 2019 to outline key areas for work over the next 12 months.  Below are principal findings in the Interim Report and how the Aged Care Royal Commission anticipates it will address them moving forward.

Key themes of future hearings

The hearings for the remainder of 2019 will focus on:

  • 4 November 2019 – Mudgee, provision of aged care in regional areas
  • 11 November 2019 – Hobart: aged care operations of selected approved providers
  • 9 December 2019 – Canberra: access and interface issues between aged care and health services

In 2020, the Aged Care Royal Commission will focus on how to design a future aged care system and the operation, governance and leadership of certain approved providers, exploring issues including:

  • the funding of aged care and the impact it has on how care is delivered
  • integration and transition between different parts of the aged care system, including home, residential and respite care
  • governance and accountability in aged care
  • how to identify and encourage innovation and improvement in aged care
  • models for the delivery aged care
  • system architecture and design to support a good quality of life for people using aged care services
  • how best to deliver aged care in a sustainable way

The Aged Care Royal Commission anticipates holding a number of additional community forums in the first half of 2020 in a range of metropolitan and regional locations, and further roundtable discussions. 

Changing demographics to be examined

The Aged Care Royal Commission recognised that there is a changing demographic impacting the future of aged care that will lead to an increase in demand for services, particularly for people developing neurological conditions such as dementia.  In this context, the Aged Care Royal Commission is looking to examine the systemic barriers to innovation and flexibility which currently impede positive change. 

Systemic reform to the aged care sector foreshadowed

Over the next 12 months the Aged Care Royal Commission will examine whether there are societal barriers to reforms to aged care, such as lack of representation in the media, in making recommendations on whole-of-system reform and redesign.  It will also examine the issue of waiting times as the current aged care system is not able to deal with the current level of unmet need for home care services and the demographic pressures behind it.

The Aged Care Royal Commission will make recommendations on how to improve the experience of older people and their families in navigating the system and accessing information about aged care services in its Final Report.

The experience of Aboriginal and Torres Strait Islander people in aged care

Geographic diversity presents a range of challenges for the delivery of all aged care services across remote and very remote Australia.  In particular, the Interim Report has reported that Aboriginal and Torres Strait Islander people are not being well served by the current aged care system.  Accordingly, the Aged Care Royal Commission will carefully consider whether aged care can be integrated with other services such as primary health, mental health and disability services, devising culturally appropriate assessment processes to access aged care, and ways to support aged care services to be staffed and managed by Aboriginal and Torres Strait Islander people.

How to reform restrictive practices to achieve best practice

The Aged Care Royal Commission will make recommendations to enact significant change in medical and operational practice in residential aged care to address unsafe and substandard care regimes as a result of restrictive practices.

Future proofing the aged care workforce

In addressing the aged care workforce that is under pressure, under-appreciated and lacks key skills, the Aged Care Royal Commission is going to closely examine workforce issues, namely: attraction and retention; education and training; choosing the right staff; remuneration and careers; continuity of care; and staffing levels and staff mix.

Next steps for the aged care and health sector

The Interim Report sets out clearly and in considerable detail, the views the Aged Care Royal Commission has formed.  The Commission indicates that it is clear that a "fundamental overhaul of the design, objectives, regulation and funding of aged care in Australia" is required and we can expect recommendations in relation to how the overhaul should be approached and implemented.

The Aged Care Royal Commission has invited submissions on the workforce issues identified by 6 December 2019.

As outlined above, the Interim Report also provides a road map for the work of the Aged Care Royal Commission in 2020.  Areas for likely recommendations and those where the Commission plans to dig deeper in future hearings are described in considerable detail.

The Aged Care Royal Commission will continue to accept submissions until 30 April 2020.  Agencies and service providers affected by the Interim Report's preliminary views and the conclusions expressed should consider making submissions – and should expect increased legal, compliance, community and media scrutiny in the short and long-term.

On 2 August 2022, the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 was passed (Aged Care Bill), introducing important regulatory changes to Australia’s aged care sector. The Bill makes numerous legislative amendments, including to the Aged Care Act 1997 (Cth) (Aged Care Act) and the Aged Care (Transitional Provisions) Act 1997 (Cth) (Transitional Provisions Act), and responds to various recommendations made by the Royal Commission into Aged Care Quality and Safety (Royal Commission) Final Report (Report). The Report identified the provision of substandard aged care services and perceived systemic failures in the aged care sector.[1]

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