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‘No sense of urgency’ for regulatory reforms, inquiry hears


The government has been slow in implementing recommended reforms and regulatory officials lack inquisitiveness, the royal commission has heard.

Last week’s five-day hearing of the aged care royal commission in Brisbane looked into the regulation of aged care and found many of the issues Kate Carnell and Professor Ron Paterson identified in the 2016 review of regulatory processes still existed.

On Friday, Senior Counsel Assisting Peter Gray concluded the week’s evidence exposed serious defects in the regulation of quality and safety of aged care at operational and design levels.

“Equally concerning, these defects are old news. Government has been tardy in implementing previously recommended reforms. There’s been no sense of urgency.

Peter Gray

“Government is yet even to reach a decision on aspects of the actions that have previously been recommended by Carnell-Paterson,” Mr Gray told the hearing.

He also said urgent reform tasks have been outsourced to consultants and appear to be stuck in protracted multi-staged industry consultation processes.

Inside the department, Mr Gray said officials were focused on policies and procedures being in place, standards being met, timing and formal processes.

“On the evidence this week, a spirit of inquisitiveness and curiosity appears to be sadly lacking,” he said.

Mr Gray said the evidence also pointed to a process-driven approach to accreditation in the Aged Care Quality and Safety Commission, an approach Carnell and Paterson criticised in their report almost two years ago.

“The failures of the regulators – I’m referring to both the department and the quality commission – to respond to clear and present risks in the Earle Haven matter are failures in responsive regulation of the kind identified by Carnell-Paterson.

“In the MiCare case study also, the commission heard evidence about what appears to be inconsistent quality assessments undertaken by the quality commission, which seems to have been adhering to the kind of monitoring process critiqued by Carnell-Paterson.”

Professor Paterson, a professor of law at the University of Auckland and co-author of Carnell-Paterson report into the review of aged care regulatory processes, said there didn’t appear to be much progress in the regulator’s agility to respond adequately since their review, ordered in response to failures in care provision at Oakden.

He said there was a disconnect between the evidence, including a February 2019 government report about the progress being made, which seemed hopeful, and what he’s heard at the inquiry.

“But listening to the examples of how cases like Earle Haven are actually being handled this year suggests to me that the lessons have not yet been learnt and I can see why there’s been a need for this royal commission, to be honest.”

Professor Paterson said he was disappointed there was still a lack of adequate benchmarking information available for consumers to compare providers.

The Carnell and Paterson review recommended a star-rating system like the Quality Care Commission in the UK uses (read more here).

In April 2018, the government committed to “a user-friendly provider comparison tool” on My Aged Care so consumers can to see how a provider’s performance rates against the quality standards in April 2018 (read more here).

Mr Gray asked Professor Paterson whether the consumer experience reports administered to about 10 per cent of aged care residents of a given facility generally at the three-yearly accreditation audit was sufficient progress in nearly two years.

“No. I think that’s disappointing… it seems like the progress has been slow and then all the more so when you look at the way in which similar initiatives have been progressed internationally,” Mr Gray told the hearing.

“It’s disappointing, not only because it’s nearly two years since this review but because we noted in our review that” the aged care road map a year-and-a-half earlier “said we should do this” and “as I understand it … going back quite some years ago, this had been talked about.”

Professor Paterson said there was a place for industry consultation on this matter, because everybody needed to believe they could work with whatever the agreed published information was, but for a limited time.

“[I]t needs to be workable and you also need to do it in a way that doesn’t stifle their innovation and their creativity… but there also has to be an end to consultation.

“At some point, you have to get on and do it and it does seem like there has been an awful lot of consultation and it does seem as if the consultation is dominated by the provider groups,” Professor Paterson said.

Consumer-centred regulation

Professor Paterson, who was New Zealand’s Health and Disability Commissioner for 10 years, also gave evidence that consumers lacked a strong voice in Australia’s aged care system.

“The voices of providers are predominant in the Australian system and appear to be highly influential in policy debates with ministers, departments, agencies and officials, but the voices of consumers, families and consumer advocates are relatively weak,” Professor Paterson said.

Elsewhere, Mr Gray said all aspects of quality and safety regulation should put the person receiving care at the centre of decision-making.

“A person-centred approach to regulation would place the needs and aspirations of care recipients at its centre. It would have regard not only to the older person but their family and the important people in their life. It would recognise the importance of the relationship between the older person and their care workers.”

A Senate inquiry into aged care quality assessment and accreditation also called for person-centred approach to regulation in its 2019 report.

It said assessments of care standards should look holistically at the care needs of residents and not be limited by jurisdictional barriers (read our report here).

The next hearing of the Royal Commission into Aged Care Quality and Safety takes place in Melbourne from 9 September and will focus on younger people in residential aged care.

To stay up to date on the latest about the Royal Commission into Aged Care and Quality go to our special coverage. 

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