Department of Health and Ageing

Conflicting government roles and responsibilities

The Department of Health and Ageing (DOHA) has a multi-faceted role which includes the funding and regulation of aged care, providing policy advice to government as well as applying sanctions to those aged-care homes which are not compliant with standards.

Furthermore, DOHA, through the Complaints Investigation Scheme (CIS), investigates complaints about its own operations and can (and has) reversed the decisions of the Complaints Commissioner who oversees the operations of the CIS and reviews cases on request.

ACC has analysed the interdependencies of the CIS, the Aged Care Standards and Accreditation Agency (the Agency) and the Office of the Aged Care Commissioner and DOHA. Although all three bodies have distinct roles, final decisions regarding regulation and compliance ultimately rest with DOHA.

This issue of conflicted interest was raised as a matter of concern in Professor Merrilyn Walton’s Report following her review of the CIS.

Additionally, the Commonwealth Ombudsman’s submission to the CIS review stated:

Aged Care Crisis is unaware of any other entity which performs functions such as the oversight, funding and regulation of aged care, all activities encompassed under the one umbrella.

Aged Care Standards and Accreditation Agency

ACC believes that the critical role of education and the establishment of exemplar processes and practices within aged-care homes must be separate from the roles of oversight and regulation. The latter roles would be better accomplished by a body independent from the industry. This would address a number of other conflict of interest situations – such as the ones noted below.

Accreditation: An industry friendly initiative

The Australian Aged Care Standards and Accreditation Agency (ACSAA) was set up as an industry friendly body. Industry input has had a potent influence on its design and its operation. They have been consulted at every point and their acceptance of any changes has been crucial.

Without industry agreement the government would not act and without intense public pressure and adverse publicity the industry would not go along with any restrictions on their freedom to operate as they thought fit.

Accreditation: conflicting roles

The Agency, as it is currently structured, has two conflicting roles - a regulatory function and an educative function. While it is beneficial to have a co-operative body assisting aged-care homes improve the quality of care provided, it is problematic when that body also performs a monitoring and assessing role and publishes the results of those assessments within the aged-care market place. Such a conflict of interest cannot be sustained and acts against the well-being of frail people in residential care.

Some facilities prepare for site audits or assessments with the help of outside contractors. Clearly, if the same contractors are retained by both the facility and the Agency then there is the real possibility of further conflict of interest as the contractors would then be effectively working for two masters.

The danger of having people associated with Providers on the Board is that the assessors employed to make the assessment may be subtly influenced by that connection.

An example is where one consultancy, whose core business is in providing "quality and legislative compliance services", also openly markets its links as an assessor, advertising its experiences as an assessor with the Agency. This is an example of where the possibility of conflict of interest and of roles can collide.

Another example of the potential for conflicting roles and interests is that some members of the Board of the Aged Care Standards And Accreditation Agency are or have been  active participants within the aged-care industry. It would be a far better look for the independence of the agency if people were appointed who had no recent connections with aged care providers.

A body charged with the important role of monitoring systems which provide support to vulnerable people should not be governed by those who are, or are connected with, the objects of the oversight process, namely, the operators in the industry. Even where there is no bias, there should not be a perception of bias.

Undue emphasis on documentation

The most common criticism of the current accreditation system relates to the undue emphasis on documentation. ACC receives much feedback about the inadequacy of a system that depends on what is written rather than what is actually done.

A system which takes staff time away from residents in order to complete a myriad of bureaucratic tasks fails both residents and staff. Currently, documenting the minute details of a person’s life seems to have become more important than actually helping them live their lives. Documentation and the keeping of records is an important part of care – as is developing well-formulated care plans. However, the current system is out of balance and the staff time spent on documentation rarely, if ever, appears to result in improved care.

For example, using staff resources to document and update resident classifications does not normally result in the provision of extra carers, nurses or other staff.

Much has been written in recent times about the malnutrition experienced by nearly 50 percent of nursing home residents. ACC questions the point of documenting a person’s weight, diet and food intake in detail if there is neither the time, nor resources, to provide nutritious, tempting meals or the assistance required to encourage and assist residents to eat them.

Reports on homes

Family members wanting to make informed decisions about a residential aged-care placement for their loved ones are often unable to do so. The vast majority of reports published on the Agency website are the cyclical, three year Accreditation site audits. These are the reports of planned visits, performed at a convenient time and after the homes may have spent months preparing for the audit.

Such reports tell us that the management of the aged-care home knows what it is supposed to do but gives little information about what happens on the other 1,093 days of the cycle. They may be nearly three years out of date for those seeking information about prospective homes.

Research shows that 65 per cent of residents stay less than three years in residential care and, of those, 42 per cent stay between one and two years. As a result, many residents will enter and exit a facility without ever taking part in an accreditation audit. In other words, the quality of care they receive will not be assessed while they are alive to benefit from any improvement made as a result of the assessment.

Information arising from other activities carried out by the Agency, such as support visits, contacts, unannounced visits is not available. For example, if a non-compliance is found during an unannounced site visit, these details are not publicly disclosed nor subject to public scrutiny.

In order for frail, aged people to achieve full protection, the community must be able to see what the company or provider is capable of when no one is watching - not just when they have been given time to prepare for an inspection and not simply after providing a response to an adverse finding in order to stay in business.

Of the nearly 8,500 visits and/or reports made to an approximately 3,000 aged-care homes by the Agency and by DOHA in the 2007-2008 year, only the 517 accreditation reports were made publicly available. Approximately 90% of information is withheld from public scrutiny

Missing: responses by providers

The Aged Care Act 1997 stipulates that a home’s response to an adverse finding be made publicly available. In spite of this requirement, and contrary to the intent of the Act, responses can be made in a form which is not actually available to the public.

The Agency seems to openly encourage this practice within the sector. The recent analysis by ACC, Aged Care Report Card for 2007-2008, revealed that not one single response was available for the year 2007-2008. How a home responds to an adverse report is a critical part of understanding the practices and policies of that facility.

The publication of all relevant information is an essential part of achieving transparency. Privacy is an important consideration, but should not be used as an excuse or barrier to transparency and accountability – or as a way to protect those who are unable to protect themselves.

Missing: consumer input

Research has shown us that hospitals are safer and better when the consumer voice is heard. ACC asks why this does not occur in aged care and calls for more consumer input at all levels within the sector.

The accreditation process should be made much more consumer friendly – in particular by including consumer/carer advocates on every audit panel. Furthermore, managers of aged-care homes should ensure that there is an active resident/family member committee which is fully supported and not patronised.

ACC draws attention to the Community Visitor Program managed by the Office of the Public Advocate (OPA) in Victoria. Under this program, trained, volunteer members of the community make regular, unannounced visits to both government and privately funded residential accommodation facilities.

Under the provisions of the relevant legislation, community visitors are permitted open access to all documentation regarding residents, as well as all parts of the home and free discussion with residents.

The value of these unannounced visits is well documented in the Community Visitor’s Annual reports. We urge a closer scrutiny of this system of community visiting which provides a further degree of monitoring of an aged-care system that is critical to the well-being of us all.

Missing: review of the accreditation process

In May 2009, DOHA announced a review of the accreditation process. The review received 147 submissions from a range of stakeholders. DOHA has not published those submissions on its website.

ACC had hoped that the review report would have been released in time for those making submissions to the Productivity Commission’s Inquiry “Caring for Older Australians” to be informed by its findings. Fourteen months should have allowed this to occur.

Provider nomination of assessors

ACC is of the view that scrutiny of individual aged-care facilities requires independent assessment with well-defined and targeted expectations.

It appears that aged-care providers are currently able to influence the accreditation process in two ways. Firstly, an aged-care provider is able to nominate candidates (up to three) for a place on the assessment team which can, and sometimes does, consist of a single member. Secondly, an aged-care assessor must be approved by aged-care providers - a case of the accreditor being accredited by the accreditee. As already stated, ACC calls for the inclusion of consumer advocates on all assessment teams.

Timing and preparation for inspection visits

ACC receives numerous complaints from aged-care workers and from the families of residents about the extensive notice given to providers prior to a site audit. As already noted, such advance notice does not give inspectors the opportunity to accurately review the life of the home on a daily basis. Families do not want to know how homes perform on special occasions. They are interested in having knowledge of day-to-day care.

Elaborate preparations are made by some providers prior to inspection. Staffing rosters are sometimes changed. In some instances, extra furniture is hired; fresh towels and linen are readily supplied.

For example:

We also draw attention to the fact that, to our knowledge, evening or weekend visits rarely occur – the very times where homes are known to have extremely low, even dangerous, staff resident ratios. If visits at these times do actually occur, this information is not disclosed in published reports on the Agency’s website.

ACC welcomes the increased number of unannounced inspections but notes that some prior warning is given of these too.

Providers are also able to nominate "no go" dates and can block dates to give homes time to prepare for these unannounced inspections.

Inspections: lack of consistency

ACC believes that there is a lack of consistency in relation to inspections. We understand that such consistency is hard to achieve when inspections are occurring across Australia. However, it is difficult for the community to be assured of the quality of our aged-care homes when inspections of the same facility by different teams have widely differing results. We are aware of several instances where this has occurred.

For example, we note that the Agency site audit performed during the 9-11th September 2008 awarded a mice-infested home full accreditation. Only after adverse media attention did the Agency investigate the same facility in April 2009, which revealed mice plague conditions existed for months prior to the site audit in September 2008.

Complaints Investigation Scheme (CIS): Third time unlucky?

The current Complaints Investigation Scheme is the third complaints scheme for Australian aged care. Like the others, this one is embedded in DOHA and managed by the Office of Aged Care Quality and Compliance (OACQC). ACC believes that the current complaints scheme is as ineffective as the previous two.

The ingenious naming of the third reincarnation of the scheme provided over 12,000 aged-care consumers in 2008-09 with the false hope that their complaints would actually be "investigated"! Unfortunately for those complainants, many of these investigations failed to provide any real justice for residents and their family members, as well as staff whistleblowers.

This initiative is coupled with the safety net implementation of the Aged Care Complaints Commissioner (for unsatisfied complainants) – and are all conveniently controlled by the Department of Health and Ageing – and ultimately, the responsible minister of that portfolio.

The department’s ability to override the Commissioner’s rulings has been a useful tool in assisting errant providers in continuing to operate their businesses uninterrupted.

ACC receives much feedback from complainants stating that their views are not heard and that evidence provided indicating mismanagement or neglect is often disregarded. Complainants often inform us that the main reasons are " if it isn’t documented in the provider’s notes, then it never happened, right?" This view has also been reinforced in the Aged Care Commissioner’s Annual Report and the recent review of the CIS.

ACC notes that the various conflicting interests affecting the DOHA have been mentioned by Professor Merrilyn Walton who chaired last year's review of the current complaints investigation process.

A further issue is that it is possible for a home to breach responsibilities as an approved provider, as well as having serious complaints substantiated against the home, and yet avoid any public scrutiny. Under the current system, after a complaint has been investigated and found to be valid, aged-care homes are simply required to agree to make some amendments to policies and procedures.

Consumers need to be fully confident that the current scheme, and any future scheme, will protect the residents of our aged-care homes. Publishing the findings of the investigations of complaints is a critical part of providing that protection.

The CIS generally fails to provide any remedy to individual complainants or to resolve issues for residents. This is because it deals primarily with systemic defects in process and breaches of standards.

A resident may have suffered injury, their health may have been seriously affected or perhaps they may have been wrongly restrained. In such cases the CIS is entirely incapable of providing any satisfaction. An ordinary person with full rights would be entitled to seek redress and compensation. Frail aged residents have no such rights, despite the Aged Care Act inferring otherwise.

While residents still have their legal right to make a claim, there is scarcely a recorded case anywhere in Australia of such a claim being made. This is hardly surprising when they are fully dependent upon the very person or corporation responsible for their injury, and are faced with litigation that is financially and emotionally draining - even to the strongest among us.

It is true that residents still have their legal right to make a claim, but considering the situation in which they live, fully dependent upon the very person or corporation which may have been responsible for their injury, faced with litigation which is financially and emotionally draining even to the strongest among us, it is little wonder that there is scarcely a recorded case anywhere in Australia of such a claim being made.

Frail aged residents in aged-care homes are not able to exercise their basic legal rights like other Australians. The community should find ways to bring legal resources to them when they are unable to travel, pay for, or otherwise have recourse to their rights. A possible way forward would be the accreditation of local and legally qualified people to act as arbitrators in appropriate cases.

Numerous reviews and audits have exposed the current, as well as previous Complaints Resolution Schemes as deficient and flawed. These reports also reveal that aged-care staff who report neglect and abuse, remain largely unprotected.

Aged Care Commissioner

The Aged Care Commissioner oversees the operations of the CIS. Consumers may appeal against a decision or the way in which a complaint has been handled by the CIS.

Although the Aged Care Commissioner can review the decisions made by the CIS, he/she has no power to overturn decisions. In some instances, DOHA has ignored the concerns of the Aged Care Commissioner.

Furthermore, ACC asks that careful consideration be given to the appointment of the Aged Care Commissioner. Not only should there be no conflict of interest in the appointment of those charged with ensuring our aged-care system is fair and equitable, but that there should also be the perception that no conflict of interest occurs.

For example, it is essential that those who are adjudicating complaints about aged-care homes are not involved, and never have been involved, in the management or the ownership of aged-care homes.

It is of great concern that, according to the most recent Aged Care Commissioner's Annual Report , there has been an overemphasis on the documentation provided by aged-care providers and not enough on evidence provided by complainants. This view is substantiated by feedback from respondents to ACC. For that reason the Commissioner’s power and authority is illusory.

References:

• Aged Care Act 1997 - Accreditation Grant Principles 1999: 9.1 Publication of original decisions (2)
• Aged Care Report Card
• Office of the Public Advocate – Victoria:
• Community Visitor’s Annual Report 2009
• The visitors are coming
• Accreditation Agency site audit performed on 9th-11th September 2008
• Agency report of the investigation in April 2009
• Residential aged care in Australia 2007–08 (Australian Institute of Health and Welfare): Table 3.9
• Accreditation: An industry friendly initiative
• Transparency in aged care
• Aged Care Commissioner – Annual Report (2008-2009)
• Report: Review of the Aged Care Complaints Investigation Scheme (Prof. Merrily Walton) – October 2009
• Elderly abuse prompts Govt measures (ABC 7.30 Report – 15 Mar 2006)
• Media release (15 June 2010): Conflict of interest - Aged Care Commissioner also a non-executive member of an aged care provider
• Submission by the Commonwealth Ombudsman - Review of the Aged Care Complaints Investigation Scheme