We have a system that was largely designed by industry, for industry. By consulting with the same architects of the existing broken system, proposed system improvements by the recent Royal Commission and various consultations and inquiries following, are likely to suffer the same malady. We will be back here sometime in the future, but only after more needless suffering of vulnerable residents in aged care.

Industry and government have been locked in a tight embrace since 1997. Industry has advised and been consulted at every step. Nothing has been done without their approval. Every beneficial change has been reluctantly acceded to under pressure from the community and the press. Many proposals have been watered down by industry’s influence.

Industry has turned aged care into a market-driven service that informed seniors and their families are now avoiding at all costs. They know who was responsible. That is not going to change while it is still led by industry and regulated by government.

Some examples of industry-led initiatives in aged care

(2021) Aged Care Quality and Safety Commission seek industry feedback on complaints handling for care recipients

The Department of Health announced 'Consultation Stage 2 - Aligning Regulation across Care and Support Sector', with feedback sought by 17 December 2021.

In an effort to improve complaints handling in aged care, the industry-friendly regulator, the Aged Care Quality and Safety Commission, incredulously invited industry to pick and choose 'Focus Group Participants' for the focus groups supporting this consultation. Hard to believe that they are asking an industry that illustrated to the recent Royal Commission it cannot be trusted and whose mode of operation is based on a rejection of responsibility to take any actions which may impair their reputations or profitability.

In many of the reported failures in care it is clear that there has been a large imbalance in power and the facilities involved have handled the complaint very badly. As is apparent, many family members and staff are reluctant to speak out about failures in care as they are fearful of retribution. Evidence at the Royal Commission illustrated the ineffective responses from government and industry, it appears nothing has changed. How many providers would recruit 'difficult' family members? Why is industry, once again, been asked to lead the feedback for such an important part of the regulatory framework? 

Appointing industry to pick and choose the 'Focus Group Participants' means participants are readily identified and it would be easier to recognise who has the insight to be critical. There is a massive power imbalance. Residents and families fear retribution and nurses fear for their jobs. Many frail residents, for example, are simply unable to voice or document their concerns.

Witnesses giving evidence to the Royal Commission included family members who described the abusive treatment and neglect their loved ones received. Many explained how powerless they were in the face of providers and how frustrating, impersonal and unhelpful they found the distant complaints system.

(2021): Serious Incident Response Scheme (SIRS)

The SIRS is a national framework for incident management and reporting of serious incidents in residential aged care to the regulator, the Aged Care Quality and Safety Commission (ACQSC).

We note that the SIRS depends on the goodwill of providers who have ample opportunity to cover their tracks and whose business models depend on positive public relations, to manage and report on incidents. This is another one of many examples of the close embrace between industry and government, and the exclusion of community.

(2019): Chemical and physical restraints in aged care

Protecting decisions from challenge. An example of the way decisions are protected from criticism by keeping them in the family and the way ministerial proposals are watered down, was revealed in 2019. The minister announced his plan to act strongly in regard to chemical and physical restraints after ABC published a series of stories showing nursing home residents with dementia drugged up on antipsychotics and physically restrained in their chairs. The minister promised to introduce tougher regulations. This left his department scrambling to decide what to do about this contentious issue and get industry’s approval. 

Anne Connolly from the ABC examined these emails. She showed how ‘the family’ are all consulted before the Minister can act. The Minister wanted action, but industry (‘the family’) watered it down until what was left was only a shadow of what he wanted.

The changes were made by ministerial decree and incorporated into the aged care principles without consulting those responsible. There was an immediate protest from public guardians, public advocates and advocacy groups across Australia. The proposals breeched the human rights of citizens and our obligations under international agreements. There was no way of enforcing this. 

There was a hearing of the ‘Parliamentary Joint Committee on Human Rights’ on 20 August 2019 at which these groups called on the parliament to disallow these changes and instead consult widely. Aged Care Crisis made a submission to this inquiry arguing that our model of oversight would be the most effective way of providing oversight, changing the culture and addressing the problem.

Minor changes were made but not enough to avoid overuse of both chemical and physical restraints in aged care.

(2019): Single Aged Care Quality Framework

In 2016 the Quality Agency mounted a public relations exercise about quality before coming up with a proposal to reduce accreditation from 44 standards to only 8 under the guise of the Single Aged Care Quality Framework While benefits and effectiveness were proclaimed, it was clearly based on the neoliberal free-market discourse advocating less regulation. A consultation process was setup and submissions invited. 

We felt that the reduction in the number of standards from 44 standards to just 8, made it even less useful and that it was a response to pressure from the industry and free-market politicians. They were pressing for less regulation and a reduced regulatory burden. This was confirmed when it was revealed that LASA’s response in their April 2017 submission to the draft standards, which came into effect in July 2019, also queried a line that referred to ensuring a “comfortable internal temperature” for residents because this could be interpreted as requiring air conditioning. It was struck from the final code. There was critical press coverage about this to which LASA responded.

LASA in their submission, also objected to Clause 3.7 in the Health Department’s Consultation paper. This was a requirement that nursing homes identify and manage high risk conditions such as "pressure injuries, medication misadventure, choking, malnutrition, dehydration, pain and delirium". The reason given for this was because "Having a list may give the impression only those incidences listed need to be monitored to meet this standard or it could be taken more literally,". It said in its 2017 submission on the draft regulations "LASA has reservations about 'lists' per se, given they can change over time." 

These were also struck from the final code. The same criticism can be made about Quality Indicators where the impact is greater.

Appearing at the Royal Commission in February this year, LASA’s CEO Sean Rooney was asked why his group suggested the federal government remove a reference to “continuously” monitoring the quality of care in the new standards with the word “regularly”, an amendment that was adopted. 

Aged Care Crisis are pressing for a system that monitors continuously.

(2018): An industry-led Aged Care Workforce Taskforce

Incredibly, after the 2016 Aged Care Workforce inquiry, the task of addressing the disastrous staffing situation revealed was delegated to the same industry that was largely responsible for the situation. The Australian Nursing and Midwifery Federation (ANMF) criticised government for excluding nurses and care staff from the Taskforce established by the Minister.

In 2017, Aged Care Crisis supplied the Chair of the newly formed Aged Care Workforce Taskforce with Australian staffing data and tables comparing them with international data. These showed just how bad the situation was.

Not unexpectedly:

  • the resulting report released in September 2018, A matter of care – Australia’s aged care workforce strategy did not publish the data that showed what had happened and the role that industry had played,
  • the future of staffing was dependent on a voluntary code of conduct by the companies responsible for what had happened and whose profitability and existence depended on keeping costs down, and
  • it resulted in more costly committees and processes peopled with many of the same people responsible for the system that we have.

Asking industry to develop a workforce taskforce to deal with the crisis in staffing was a regressive step but illustrates the way discourse operates in defining who is credible and believable and who is not.

Government supported the 'industry-led' aged care workforce strategy's approach.

(2014-2017): Red Tape Reduction - slashing regulation in aged care

The regulation of aged care was markedly reduced between 2014 and 2017 under the pretext of the $6 billion Red Tape Reduction program.

The Aged Care Sector Committee, a selection of representatives of industry stakeholders was set up in 2014 to make policy for government. Reports indicated that “Not for Profit expert Professor Peter Shergold has been named as Chair of the Aged Care Sector Committee tasked to build a working partnership between the Federal Government and the aged-care sector”. This was an “avenue of representation for providers and consumers” comprising “heads of provider, carer and consumer peaks, and unions”. It replaced “the abolished independent Aged Care Reform Implementation Council” which was primarily an independent monitoring body.

Its first task was to “develop the Aged Care Sector Statement of Principles to set out the way in which government and the aged-care sector will work together to progress reform”. Industry and sectors of the community prepared to conform to government's neoliberal discourse were invited to the policy table where they would address the marketised reform including “how the recommendations of the Productivity Commission’s Caring for Older Australians report is considered” and provide guidance on the “new demands and a greater consumer focus”.

Its next task was the development of a ‘Red Tape Reduction Action Plan’ and then the implementation of the ‘Red Tape Reduction Program’. This committee requested assistance from the National Aged Care Alliance (NACA) and they also set up an internal ‘Red Tape Reduction Working Group’. COTA’s Ian Yates was a member of NACA’s internal ‘Red Tape Reduction’ working group along with industry groups ACSA and LASA.

Proposed regulatory reductions were recorded in an August 2015 NACA document “Work in Progress list of Identified Red Tape Opportunities”. ‘Subject Matter Experts’ for each proposal were dominated by LASA, ACSA and COTA. Not only were they extensively consulted, but industry was advising on its own regulation.

In effect, the Abbott government was doing what the Howard government had done in 1997. They were asking the industry to indicate what they wanted government to do and inviting them to rewrite their own regulations.

Reducing unnecessary red tape is an appealing objective and a politically attractive goal, but the real intent of policy was expressed in the title of the Department of Social Services ‘Annual Deregulation Report 2014’ and in the introduction to the 2015 Red Tape Reduction Action Plan. It said: “This Red Tape Reduction Action Plan represents the first step toward reducing the regulation of the aged care sector”.

Targets were set and there was a twice-yearly Red Tape Repeal Day for getting rid of unwanted regulation.

The majority of the changes could be done by ministerial decisions and only a few required legislation. By the time the ‘Budget Savings (Omnibus) Bill 2016’ reached parliament, Abbott had been replaced by Turnbull and aged care had been returned to the Department of Health. The Bill itself was underwhelming for aged care.

Some of the changes included:

  • DIY self-appointment of 'advisers' when sanctioned: Sanctioned providers were previously required to employ an adviser and administrator from a government panel who was approved by the Secretary of the department. The panel also included a registered medical practitioner. The Bill repealed this requirement and the sanctioned providers “would be able to choose their own advisers and administrators” although there were “restrictions on who can be an adviser”. Some have pointed out that It is possible for them to choose an existing employee, as long as they are dedicated to that role only.
  • The reporting requirements around ‘key personnel’ were reduced and providers were trusted to disclose honestly. The justification for lifting the requirement for using consultants/advisers approved by the Secretary given in the government’s Spring Repeal Day (Nov 2015) was that “approved aged care providers have the knowledge and expertise to determine which consultants would be suitable to meet their obligations”.
  • The introduction of penalties for over-claiming from the funding system. We are unaware of any penalties made to date.
  • Reduction of ACFI reviews.
  • The removal in 2015 of the requirement to report infectious diseases (eg, salmonella, influenza, COVID-19, etc) to the federal department. This may have been a factor in the under-reporting of COVID-19 during the pandemic.

After a change of Prime Minister, the deregulation frenzy withered and at a NACA meeting in August 2017 it was recommended that the internal Red Tape Reduction Working Group be disbanded. The harm had been done.

The free-market ‘reforms’, the markedly reduced regulatory effort and greater competition for profit would further compromise care was predictable and that is exactly what happened.

At the same time, Australian accreditation figures showed that performance was improving to near perfect levels. The Royal Commission has revealed that the situation was very different. Residents in nursing homes were getting frailer, overall staffing was decreasing, and neglect and abuse were increasing rapidly. It was not just ineffective, it was deceptive. It was the consumer feedback reports from this accreditation process that COTA recommended to the Aged Care Sector Committee as more reliable than actual data.

These are the business owners and trained managers, few of whom have any real experience of caring. There are many previous assessors who have set up businesses advising and helping providers to pass the accreditation standards. The issue is whether they will appoint those who address the knotty problems in care or instead take the cheaper option of appointing someone who knows how to get past the standards.

(1998 - current): Keeping the aged care regulator in safe hands

Australia's aged care regulator has renamed and rebranded itself over the years as:

  • 1998 - Dec 2013: Aged Care Standards and Accreditation Agency (ACSAA)
  • 1 Jan 2014 - Dec 2018: Australian Aged Care Quality Agency (AACQA)
  • 1 Jan 2019 - current: Aged Care Quality and Safety Commission (ACQSC)

1 Jan 2019 - current: Aged Care Quality and Safety Commission: The Aged Care Quality and Safety Commission (ACQSC) is the body that accredits, trains and works with providers to help them pass accreditation. This has been the role of the accreditation process for the last two decades. The ACQSC currently manages complaints as well. From 1 January 2020, ACQSC took over additional regulatory functions of the department. This included assessing and approving new providers of aged care, compliance and the imposition of sanctions.

Under government’s “Regulator Performance Framework”, ACQSC is required to assess and report on its performance. In addition, the Agency procures feedback from industry and others. Their Key Performance Indicators (KPIs) ensure industry relations are maintained. Significant efforts to procure industry feedback are required including regular meetings with ACQSC. This ensures a close relationship between regulated and regulator.

1 Jan 2014 - Dec 2018: Australian Aged Care Quality Agency: The AACQA started operations on 1 Jan 2014. Then Abbott government (Fifield) appointed Nick Ryan, a past CEO of LASA, the body that represented providers, to be the CEO of the Quality Agency in 2014 (appointed in Apr 2014 - Dec 2018). He was now regulating and reporting on the performance of groups that, in his previous role, he was supporting and acting for. His reports could lead to their being sanctioned. The agency is central to the regulatory system that we all depend on to keep us safe. This was truly the fox guarding the henhouse.

Under Ryan’s tenure, success in accreditation across Australia reached dizzying heights of nearly 98% success. That came crashing down soon after Oakden revelations and ABC Four Corner’s two-part special which forced the PM to call a Royal Commission.

Two months after leaving his post at the Quality Agency, Ryan became Acting CEO for Southern Cross Care Queensland for four months. It has been one of the non-profits reducing staff. A number of its nursing homes have failed standards. Since May 2019, Ryan has been CEO of Lutheran Aged Care Australia. Lutheran Aged Care Australia is a “full member” of the National Aged Care Alliance (NACA).

1998 - Dec 2013: Accreditation Agency: nearly half the board/executive were aged care providers. In later years, this was simply replaced with a government Committee or similar, that was simply more of the same.

Mark Brandon was CEO of the Accreditation Agency from 2002 - 2013. Brandon's good relations with industry were confirmed when he became Chief Quality Officer for private equity owned Estia Health. His knowledge about the accreditation process must have been useful. Would any one dare find a facility mentored by their previous boss wanting?

The Aged Care Quality and Safety Advisory Council ("Advisory Council") is a continuation of its predecessor, the Aged Care Quality Advisory Council. It retains some of the same members that were transferred from its predecessor (and before that, the board of the Accreditation Agency). It provides advice to the Aged Care Quality and Safety Commissioner and to the Minister about matters arising in relation to the performance of the Commissioner’s functions. It is classified as an “Advisory Body - Policy and Stakeholder Consultation” and has paid members.

Legislative requirements included transferring functions and operations from the Aged Care Quality and Safety Commission's predecessors, the Aged Care Quality Agency and the Complaints Commissioner. This included the continuation of appointments of members of the previously named Aged Care Quality Advisory Council, transferring them across as members of the centralised Aged Care Quality and Safety Advisory Council. Several of its members are also National Aged Care Alliance (NACA) members.

Comments about regulatory changes:

Government simply followed the advice of the 2010 Productivity Commission report which advised the formation of a single regulator by combining complaints, department and accreditation. This report was made within the free-market discourse and its recommendations led to the market based Living Longer Living Better reforms which compounded the problems in the sector.

The recommendation that these bodies be amalgamated was firmly rejected by the Accreditation Agency at the time on the basis that accreditation is not a regulatory process and is compromised by being linked to regulation. That criticism was and still is valid.

Combining three failed reluctant regulators into one without addressing the core problems responsible for their failures is not a solution. It is not the tough new cop that the minister boasts of.

Reducing 44 standards to 8 under the guise of the 'Single Aged Care Quality Framework' is neoliberal minimalist regulation thinking in action. While changing to unannounced visits sounds attractive and puts pressure on providers, the evidence does not suggest that this will make a big difference.