The current (fifth) incarnation of the troubled scheme sees the Aged Care Complaints Commissioner (since 1 January 2016) replacing the troubled Aged Care Complaints Scheme with a resolve to separate complaints handling from the department - although we note that the Commissioner remains firmly under the thumb of the Minister.  It is hoped that this will truly provide the independent the scheme desperately needs to protect vulnerable people in care.

Changes were announced in the 2015 Budget that confirms the government's absolving of their responsibilities of caring of the aged, exposing vulnerable seniors to a largely uncaring open market.

The aim of shifting complaints management across to the Aged Care Commissioner from 2016 is that it should be independent from the department's control, thereby minimising any departmental conflicts of interest, as is currently the case. Whether the new regime will have the teeth and resources to tackle complaints is still to be seen.

The government is promoting this and other changes as 'More choice and better care for older Australians':

... The Government’s Aged Care Agenda will progressively move aged care from a welfare-style system to one that empowers older Australians to choose their own care services, through a market-based system. This will encourage care providers to offer competitive, high-quality and innovative services.

Source: More choice and better care for older Australians - MyAgedCare, 13 May 2015

Aged Care Crisis have been vocal about the current and previous regulatory environment around the protection of older people in care. We hope that the new arrangements will deliver at the very least, some acceptable outcomes for those in care.

Aged Care Crisis spoke around their concerns regarding the protections around vulnerable residents in care at the Community Affairs References Committee - Care and management of younger and older Australians living with dementia and behavioural and psychiatric symptoms of dementia earlier this year.

We highlighted the inadequate protections afforded to vulnerable people in care in relation to the Complaints Scheme, including the accreditation of homes, and the reasons for this in the following parts of the Transcript, below:

Community Affairs References Committee: 14 February 2014

Care and management of younger and older Australians living with dementia and behavioural and psychiatric symptoms of dementia

SALTARELLI, Ms Lynda, Communications Advisor, Aged Care Crisis

SPARROW, Ms Linda, Committee Member, Aged Care Crisis

Evidence was taken via teleconference — (Link to Transcript)

CHAIR: I welcome representatives from Aged Care Crisis, who are appearing via teleconference. Thank you for appearing. I appreciate that it is a little more difficult on teleconference, so thank you.

I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. We have your submission, thank you very much. I would like to invite one or both of you to make an opening statement and then we will ask you some questions.

Ms Sparrow: In a moment, Lynda Saltarelli and I will be doing a joint presentation on behalf of Aged Care Crisis. I will speak now about the prevailing culture within residential care and some of the very urgent staffing needs which we believe must be addressed to achieve the sort of care we would all wish for those living with dementia and BPSD. After I have finished, Lynda Saltarelli will speak about the issues relating to the current complaints scheme and the need for greater transparency in the aged-care residential sector.

Ms Saltarelli: One of the cornerstones of providing good dementia care and care for those with behavioural and psychiatric symptoms of dementia is information for family members seeking to provide care. The regulation of aged care is the mechanism whereby the public develops trust in the system. Confusion about how regulation works and who takes responsibility for it and how it performs makes this trust very hard to achieve.

The current complaints scheme is the fourth reincarnation for Australian aged care. Like its predecessors, this one is embedded within the now Department of Social Services under the Office of Aged Care Quality and Compliance. We believe the complaints scheme should not fit under the same body responsible for funding approvals and setting policies. We feel that successive reviews and inquiries have ignored the logic of various submissions and cherry-picked items that have then been incorporated into policy and practice, adversely influencing the way in which the aged-care system operates.

An example of this is the way in which the review of the Aged Care Complaints Investigation Scheme, the Walton review back in 2009-10, virtually destroyed the utility of the whole complaints system by embracing our recommendation to place more focus on local resolution, but critically ignored supporting information on the logic behind this and the essential linked recommendation that the complainant should be supported and advised by a trained local facilitator with investigative powers.

Not surprisingly, this unequal barrier — in which there is a gross imbalance in power, where victimisation is possible — has proved to be an effective barrier to lodging a complaint as well as resolution, leading the disaffected even more disillusioned.

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. Residents with dementia, especially, may have suffered injury; their health may have been seriously affected or perhaps they may have been wrongly physically or chemically restrained. In such cases the complaints scheme 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 implying otherwise. To the contrary, these instances perpetuate a system where, judging by the numerous stories of neglect, abuse and premature death, poor care is endemic.

The complaints scheme 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. Consumers need to be fully confident that the current scheme, and any future scheme, will protect the residents of our aged-care homes. How a home responds to an adverse report is a critical part of understanding the practices and policies of that facility, as is publishing the findings of the investigation of complaints. 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 a barrier to transparency and accountability or as a way not to protect those who are unable to protect themselves.

Many people who contact Aged Care Crisis are shocked to learn that it is still possible for a home to breach its responsibilities as an approved provider under the Aged Care Act, have serious complaints substantiated against them, including assaults, and yet still manage a perfect accreditation score and avoid any public scrutiny whatsoever. Family members wanting to make informed decisions about a residential aged-care placement for their loved ones, especially those with dementia, are often unable to do so.

Aged Care Crisis are concerned about the proposed extended scope of the Aged Care Standards and Accreditation Agency, renamed the Australian Aged Care Quality Agency from 1 January this year, with regard to regulatory powers previously vested in the Department of Health and Ageing. The Quality Agency, as it is currently structured, has two conflicting roles: a regulatory function and an educative function. Such a conflict of interest cannot be sustained and acts against the wellbeing of frail people in residential care. The critical roles of education and the establishment of exemplar processes and practices within aged-care homes must be separate from the roles of oversight and regulation. A body independent from the industry would better accomplish the latter roles. This would address a number of other conflict-of-interest situations.

The then agency, in its second submission to the Productivity Commission's inquiry into caring for older Australians, emphatically argued that the Department of Health and Ageing was—and the agency should not be—the principal regulator. It clearly stated the danger of the duality of the roles. To quote directly from their submission:

"... The accreditation agency's responsibility is to support and encourage a quality environment that supports quality care and improvement in aged care while identifying where homes have failed to meet the standards. This approach is in the interests of the residents, who are usually frail, vulnerable and elderly. To do this role adequately requires a strongly collaborative approach with their stakeholders. This does not align with an inspectorial policing approach ..."

The agency goes on to say:

A change to an enforcement and compliance-monitoring arrangement, as suggested in the Productivity Commission report, seems to be underpinned by a belief that enforcement will promote continuous improvement. It would be a return to the practices of the late 1990s. This is a retrograde step that is contrary to international trends and would undo what the current arrangements have achieved.

Aged Care Crisis concurs. Logic dictates that the new agency should have been relieved of this burden and a new, more appropriate, non-conflicted system built around community surveillance substituted.

Aged-care providers receive billions of dollars of taxpayer funding. There should be full disclosure as to how that money is being spent. As well as providing increased transparency for consumers, such disclosure would undoubtedly encourage improvement in residential aged-care services.

The vast majority of reports on aged-care homes 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. Other reports, as a result of unannounced visits, are never published nor made publicly available. For example, if failures are identified during an unannounced site visit, these details are not publicly disclosed nor subject to public scrutiny. The agency is also FOI exempt (apparently, the NEW Agency isn't – yet to test it)

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. It is critically important that there be regular, informed, ongoing surveillance within the community by trained individuals closely linked to both to each accreditation visit and to groups advising and supporting recipients of care and their families. All accreditation and inspection reports should be published and available publicly so that residents and their representatives can make their own informed assessments.

The current accreditation system does not adequately measure the delivery of care to frail Australians in our aged-care homes. The agency concentrates on processes rather than on measurable adverse events. These often remain hidden. Measurable levels of real care or performance, such as bed sores and weight loss, are not recorded nor reported publicly. Instead, the agency refers to indicators and looks at whether processes are in place to prevent and treat these failures in care. Their success in doing so is neither evaluated nor reported. While these processes are important for improvement, they are not the measures of performance with informed regulators, researchers or citizens. That concludes my statement.

CHAIR: Thank you very much.