Aged Care Quality Principles
The submission to the Department of Health (Department) in relation to the Aged Care Quality Standards (Standards) was prepared by the Law Council of Australia.
The responsibilities of approved aged care providers under the Aged Care Act 1997 (Cth) (Aged Care Act) include to provide a quality of aged care which complies with the Standards.1 The Standards are prescribed in Schedule 2 to the Quality of Care Standards 2014 (Cth) (Quality of Care Principles) 2 – an instrument made by the Health Minister under the Aged Care Act.
The Final Report of the Royal Commission into Aged Care Quality and Safety (Final Report) 3 recommended, to improve the efficacy of the Standards, that:
- responsibility for setting the Standards be given to the Australian Commission on Safety and Quality in Health Care (Health Care Commission) by 1 July 2021, which already sets standards regarding the quality and safety of health care (Recommendation 18);
- there be an urgent review of the Standards by the Health Care Commission, including in relation to matters within the standards regarding which concerns were raised by witnesses before the Royal Commission (Recommendation 19).
To date, those recommendations have not been fully implemented. The responsibility for setting the Standards does not appear to have been transferred to the Health Care Commission. Further, while the Standards are now subject to a review, the review is by the Department rather than the Health Care Commission. As part of that review, the Department has commissioned a survey of the aged care sector, seeking views on the current Standards.
In this context of that Departmental review, the Law Council makes the following recommendations:
In relation to the Royal Commission recommendations
- the Health Care Commission be given statutory responsibility for setting Standards, as recommended in Recommendation 18 of the Final Report;
In relation to the Aged Care Act
- starting from Recommendation 14 of the Final Report, the Aged Care Act should make clear the content of an aged care provider’s duty to provide high quality and safe care, balancing a consumer’s wishes and foreseeable risks of giving effect to those wishes.
In relation to the Standards themselves
- the Standards be amended to: (a) make the obligations of aged care providers clear; and (b) ensure those obligations are expressed in consistent terminology;
- the Standards be amended to better clarify the requirements imposed on aged care providers where an aged care recipient’s rights to exercise choice and to dignity intersect (and possibly conflicts with) an aged care provider’s duty to provide a safe environment;
- there be clarification as to the relationship between representative decisionmaking under the new Aged Care Act and under state and territory laws.
1 Aged Care Act, paragraph 54-1(1)(d).
2 Ibid, section 96-1.
3 Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect (2021)