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Newsletter
Wednesday, 25 September 2024
Newsletter Snapshot
1. The new Aged Care Bill 2024 - to what extent is it 'rights-based'?
2. ACJ Legal Fact Sheets: Misuse of Power to Restrict Visitors in Aged Care
3. Legal Update: Complaints received by ACJ
4. Aged Care Star Ratings Evaluation: ACJ relay complainant criticism of the ratings system to Government
5. ACJ's CEO, Anna Willis, speaks to Consumer Advocacy Group, CHOICE, on home care issues
Aged Care Justice (ACJ) is a not-for-profit charity connecting aged care recipients and their loved ones to legal services.
If an aged care recipient is experiencing problems with their treatment or quality of care, we can connect them or their representative to a lawyer for a free legal consultation.
Call (03) 9016 3248, email info@agedcarejustice.org.au or click the button below to fill in the Get Help Form.
The new Aged Care Bill 2024 - to what extent is it 'rights-based'?
On September 12, the new Aged Care Bill 2024 (the Act) was introduced to Parliament, and will next be subject to Senate review.
Media attention on the long-awaited Act has focussed on additional Government funding for the already strained sector and a revised cost model for those accessing care services. The additional Government funding and lifetime individual contribution caps proposed in the Act are welcomed by Aged Care Justice (ACJ).
However, "funding alone is not the solution to the systemic issues identified by the Royal Commission into Aged Care", says ACJ Chair Sue Williamson.
The aged care reforms rely on the Statement of Rights and the Quality Care Standards to guide the delivery of care and ensure the protection of older people receiving care services. As central as they are to the legislative framework, they do not include consumer rights, and they are not required to be a part of any aged care agreement, leaving them contractually unenforceable.
ACJ would like the content and function of the Statement of Rights and Quality Care Standards to be reviewed, with public consultation, to ensure they can be relied upon to protect the older person.
Complaint handling, provision of remedies including compensation, and restorative justice are important to enforce change in poor practices.
The Act has made some changes to the role of the Complaints Commissioner, who will now be appointed by the Minister, and complaint handling will, to some extent, be handled independently of the ACQSC. This is a welcomed change, but it is unclear on how it will operate in practice, specifically the powers to investigate a complaint and impose a remedy. It appears complaints reporting and compensation orders will stay with the ACQSC. This raises the question of the level of independence granted to the Complaints Commissioner and how it will benefit the complaint process.
A major change since the Aged Care Bill 2023, is the removal of criminal penalties for high level neglect and abuse which have been replaced by financial penalties. ACJ receive a variety of complaints regarding neglect and poor care. Any fall or untreated wound can go from a low-level injury causing distress to significant injury, and even death. Low-level complaints can quickly lead to catastrophic outcomes. ACJ believe financial penalties are not a sufficient deterrent to change poor and harmful practices.
The Act includes some important regulatory changes and funding provisions, but ACJ believe it is insufficient in implementing the reforms required to achieve enforceable rights, legal accountability, and significant change for older Australians.
ACJ is forming a Submission in response to the Act for the Senate Standing Committee on Community Affairs, which will be made available on the ACJ website.
ACJ Legal Fact Sheets: Misuse of Power to Restrict Visitors in Aged Care
“I have been a carer for my Mum for years, now my siblings are banning me from visiting her. I’m devastated. I need urgent help.”
– Aged Care Justice Complainant
Aged Care Justice (ACJ) has created a series of Fact Sheets to support the aged care community in response to complaints from people banned or restricted from visiting their loved ones.
Unlawfully banning family members or friends from visiting a loved one in aged care has devastating consequences.
The laws in Australia are complex, and differ in each State and Territory, so specific knowledge is required to prevent misuse and abuse of the powers to ban visitors in aged care settings.
“The person banning the visitor may be acting beyond their power. What we have found is that a person with some designated authority believes they have the power to control who the aged care resident associates with, and that’s not necessarily accurate", says Anna Willis, Solicitor and ACJ CEO.
A person can make decisions on behalf of an aged care resident, if it has been determined the resident is unable to make their own decisions, that is, they have ‘impaired decision making capacity”. However, people making decisions for an aged care resident must be formally appointed in accordance with the law of the State or Territory in which the affected aged care resident resides. The law provides specific requirements for people to follow when making decisions on behalf of someone else.
If you have been banned from visiting someone who resides in residential aged care, it is important to know your rights. The Fact Sheets below provide general information and include: (1) who does and does not have the power to ban, (2) in what circumstances someone can make a decision on behalf of the aged care resident, (3) the obligations of the aged care facility, and (4) what a banned person can do if they want to challenge the person applying the ban.
If you would like to know more about the laws on banning in your State or Territory, see below link.
To read ACJ's BANNING Fact Sheets click here
Legal Update: Complaints Received by ACJ
ACJ has received over 23 complaints and queries over the past 8 weeks, involving a range of issues including;
banning a family member from visiting a resident in an aged care facility due to misuse of decision making power
lack of appropriate care after returning to the facility from hospital causing significant injury
injury resulting from the facility failing to seek urgent medical attention
failure to appropriately monitor health issues leading to illness
- contract queries relating to exit fees
We were able to assist most complainants, however, for some issues there were no remedies, and we will continue to advocate for reforms.
If you or your family member, or friend, is experiencing an issue with their aged care provider and are unsure of their rights or options, ACJ may be able to arrange an initial free legal consultation with a lawyer.
Use our Get Help Form, or email info@agedcarejustice.org.au, or call 03 9016 3248.
Aged Care Star Ratings Evaluation: ACJ relay complainant criticism of the ratings system to Government
On August 8, ACJ took part in a virtual focus group about Star Ratings held by Allen+Clarke Consulting, on behalf of the Department of Health and Aged Care (DoH). The aim of the focus group was to gauge the public's perception and use of the Star Ratings system.
Star Ratings were introduced by the DoH in December 2022. Aged care providers that choose to participate in the system receive a possible 1 to 5 stars for their overall performance on Resident Experience, Compliance, Staffing and Quality Measures, with 5 being the highest score.
Aged care advocacy organisations were asked to join the focus group to relay the thoughts of the people they represent in the community, who engage with aged care services.
ACJ provided input on behalf of complainants who have discussed their thoughts on the ratings system.
Complainants have expressed that they feel it is inappropriate to apply a star rating, which is typically used to rate hotels, to facilities responsible for the delivery of complex clinical care to older and vulnerable Australians.
The general feedback is that the ratings do not accurately reflect the care that is delivered by their provider. Complainants have reported feeling confused and angry that the facility at which their parents reside has a 4 or 5 star rating, yet has a history of non-compliance and residents are still experiencing poor care outcomes.
Another criticism is the fact that a facility can have a high overall rating yet have a poor rating for staffing due to staff shortages.
We acknowledge that it is challenging, if not impossible, to deliver quality aged care services without the appropriate number of skilled staff. However, accuracy and transparency of performance data are critical in promoting public confidence in the aged care system.
The DoH have not made any announcements regarding the Star Ratings System since the consultation.
ACJ will continue to relay complainant feedback to ensure policymakers are aware of the views and experiences of aged care residents and their families, in order to help advance reform.
ACJ's CEO, Anna Willis, speaks to Consumer Advocacy Group, CHOICE, on home care issues
On September 3, ACJ and other consumer advocates spoke to CHOICE on the downfalls of the current home care system and the potential for exploitation.
"We have had cases of providers charging for services but carers not turning up. Or they turn up and stay for a limited time without providing quality service", said Willis when referring to the types of complaints received by ACJ.
One particular complainant, who was a home care recipient in poor health had a water system which had failed. She couldn't afford another one, and it was not included in her home care package.
"How can that person stay at home comfortably without hot water, which is excluded from home care package expenditure?" asked Willis.
ACJ also find that there is a lack of understanding amongst home care recipients of what they are entitled to and how they can ensure they are receiving their full service offering. Older Australians who are experiencing various health issues are particularly vulnerable.
"Recipients who have been diagnosed with cognitive decline or physical impairment need support to understand and administer the home care package", advised Willis.
Since the CHOICE article's publication, the new Aged Care Bill 2024 was released with proposals to improve protections for home care recipients. These include extending the Serious Incident Reporting Scheme (SIRS) to home care, implementing assurance reviews to make sure home care providers use government funding to deliver services to older people, and the banning of exit fees and capping of administrative and management charges.
A more flexible system is needed to ensure home care recipients receive care that is relevant to their needs, and a high level of resources and monitoring will be required to effectively ensure the safeguarding of older Australians accessing home care services.
To read CHOICE's full article click here
Access to legal information and support is vital for our most vulnerable, as is legal education and lobbying for sector reform.
If you would like to support ACJ in delivering its aims please donate today.
