Australia’s law reform body has recommended strengthening protections for seniors in aged care including a more extensive scheme for reporting and investigating alleged incidents.
The Australian Law Reform Commission also proposed a new benchmark for adequate staffing levels in aged care, more extensive employee screening and regulation of “restrictive practices.”
Almost a third of the commission’s 43 recommendations involve changes to the laws governing residential and community aged care.
The commission’s report released yesterday covers areas including family agreements, superannuation, banking and enduring appointments.
- What’s the ALRC’s inquiry? Read our backgrounder here
It suggests the federal and state governments develop a new national plan to combat elder abuse, detailing strategies and priorities for action.
Among its 14 recommendations for legal changes in aged care, the commission proposes a new “serious incident response scheme” to replace the current mandatory reporting regime.
As first flagged in a discussion paper last December, the commission’s proposed scheme would require providers to undertake their own investigation into an alleged or suspected incident.
Providers would also be required to notify a new independent oversight body of the allegation and the outcome of their investigation.
Broader range of incidents covered
The commission proposes that in residential aged care a serious incident would include:
- physical, sexual or financial abuse;
- seriously inappropriate, improper, inhumane or cruel treatment;
- unexplained serious injury;
Serious incidents committed by another care recipient would include:
- sexual abuse;
- physical abuse causing serious injury; or
- an incident that is part of a pattern of abuse.
In home care, a serious incident would include physical, sexual or financial abuse committed by a staff member against a care recipient.
The commission recommends removing the current exemption for serious incidents committed by residents with a pre-diagnosed cognitive impairment.
Police notification dropped, 24 hours extended
Significantly, the commission’s proposals would remove the current requirement that providers report an alleged incident to police. Although it acknowledges some criminal laws may require the reporting of suspicion of serious offences to the police.
It says this change is partly due to the expanded definition of serious incident and reflects the new approach that requires providers to consider how they respond to issues.
In another significant change, the commission suggests the current timeframe for reporting alleged incidents be extended beyond the current 24 hours.
Instead, providers would be required to notify the oversight body “as soon as possible and no later than 30 days” in order to allow services to demonstrate a “considered response to an allegation or suspicion of a serious incident.”
The new oversight body, which the ALRC proposes should be the Aged Care Complaints Commissioner, would monitor and oversee the provider’s investigation of and response to serious incidents.
This body would also be empowered to conduct investigations of such incidents though the commission says it expects such investigations would not be routine.
“Rather, its focus would be on overseeing providers’ own responses to serious incidents, and building the capacity of providers in doing so.”
The oversight body could make recommendations and publicly report on particular incidents or providers, the commission proposes.
The ALRC says there was mixed response from stakeholders to its earlier proposal for the Complaints Commissioner to carry out the new oversight role. But it nonetheless maintains the Complaints Commissioner is the most appropriate of the current officeholders responsible for aged care quality.
The commission said that “significant concerns” had been raised that current staffing practices in residential care involve “staffing levels that are so inadequate as to result in neglect of care recipients.”
It calls for the Department of Health to commission an independent evaluation of research on optimal staffing models and levels in aged care, which would be used as a benchmark to assess the adequacy of staffing in facilities.
The commission also says unregistered personal aged care workers should be subject to the planned National Code of Conduct for Health Care Workers (read AAA’s previous report on the new code here).
And it calls for a more extensive “national employment screening process” for aged care based on an assessment of a person’s criminal history, relevant incidents under the proposed new incident scheme, and disciplinary proceedings or complaints.
Regulation around ‘restrictive practices’
The commission proposes regulation around the use of restrictive practices in residential aged care facilities, under which restraints are the least restrictive, used as a last resort, proportionate to the risk of harm and with the approval of an authorised person.
It also calls for a new independent “senior practitioner” for aged care to provide “expert leadership on and oversight of the use of restrictive practices” and for providers to record and report their use of restraints.
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