THE COMING OF AGE

New Aged Care Legislation for the Commonwealth

Since August 1992 the Australian Law Reform Commission has been reviewing the legislation administered by the Commonwealth Department of Human Services and Health. As part of this process the Commission looked into the Aged Care Program. This is an adapted Overview of the Commission's report.

The Coming of Age (ALRC 72) is the second report of the Australian Law Reform Commission (ALRC)'s review of the legislation administered by the Commonwealth Department of Human Services and Health (the Department) - the first being Child Care for Kids (ALRC 70). It examines the Aged Care Program including the Domiciliary Nursing Care Benefit (DNCB, a benefit paid to carers of frail older people who live at home), and reviews some of the services they provide, such as nursing homes, hostels and Care Packages.

What the ALRC was asked to do

• report on how Commonwealth legal policies, social justice and human rights should be reflected in new legislation
• advise on the inclusion of elements common to all programs run by the Department (eg. privacy provisions, review mechanisms) with a view to achieving consistency as far as possible across programs
• have regard to the need to ensure proper standards of accountability while retaining flexibility and innovation in the delivery of services.

Public consultation

• Flexibility. There should be programs and policies that ensure that older people can choose from a variety of different kinds of services. People should be able to choose services that meet their needs rather than having to modify their needs to suit available services.
• Access and equity. There are groups in the community, for example, people of non-English speaking backgrounds and people from Aboriginal and Torres Strait Islander communities, whose access to culturally appropriate services may be limited unless special measures are taken. People with dementia and their carers also face special problems.
• Community attitudes to older people. Strategies to promote the rights of older people who receive Commonwealth funded services are not going to be really effective until there is a change in community attitudes so that older people are treated with more dignity and respect.
• Information. Many older people and their carers do not have access to clear and comprehensive information about aged care services generally as well as matters specifically of interest to them, including how to get a service, their rights and obligations, and what to do if they want to make a complaint about a service.

Key principles

• the focus should be on meeting the individual care needs of older people
• programs should be delivered in a way that is consistent with access, equity and social justice
• the program should promote and protect the rights of consumers of the services it funds
• the program should promote the quality of care and quality of life for older people.

• the Department's decision-making should be transparent
• there should be consistency in the regulation of different service types (home care, hostels and nursing homes) where appropriate
• the program should promote flexible service delivery.

The main recommendations

Access to services

• Consultation and planning. The new legislation should reflect the importance of consultation with those who use the services. One of the objects of the Act should be to develop policies, administer programs and evaluate them in the light of appropriate consultation. The legislation should outline the program's planning process and the outcomes the Commonwealth seeks to achieve.
• Getting a service. The new legislation should set out the outcomes that the eligibility assessment process seeks to achieve. It should also set out the basic steps in this process. A decision not to approve a person for service should be reviewable by the Administrative Appeals Tribunal (AAT).
• Access, equity and social justice. The new legislation should contain a clear statement of the Commonwealth's commitment to administering its Aged Care Program in a way that ensures compliance with social justice, access and equity principles. It should give the Minister authority to direct funds to initiatives designed to achieve this.
• People in the community. The Commonwealth should review its respite schemes to ensure that people in the community can choose from a range of services that meet their needs. People must have effective access to these services, especially in an emergency.
• Domiciliary Nursing Care Benefit. The Commonwealth should review and clarify the policy focus of the DNCB, including the eligibility requirements for the benefit. Decisions about the DNCB should be reviewable by the AAT.

Quality care and user rights

• Quality services. The statements written by Commonwealth officers who monitor the quality of residential services should include a short plain English summary of the service's compliance with the standards. This should be available as an information tool to both users of the service and those who might wish to use the service.
• User rights. There should be a single charter of rights and responsibilities for residential services. There should also be a charter of rights and responsibilities for Care Packages. People receiving hostel care or Care Packages who are socially isolated should have access to a volunteer visitor scheme.
• Information for consumers. The Commonwealth should develop a coherent and continuing national strategy for providing information about aged care services to older people and their carers. It should require service providers to give their clients an information package about their service.
• Complaints. Services should be obliged to have an appropriate procedure for dealing with complaints. There should be a body, independent of the service and the Department, to which people can take their complaints.
• Privacy. The Commonwealth and services often hold very sensitive personal information about older people. The privacy of personal information held by the Commonwealth and services should be protected.

Funding Services

• Funding. The legislation should set out the steps a service must take to receive funding. This will help the process become more transparent and accountable. As far as possible the criteria for approving funding and the conditions of funding for all service types should be consistent. This will make it easier to promote flexible service provision.

As a general rule, capital funding arrangements should impose an obligation to provide the service for which funds are given for a fixed period of time and the Commonwealth should take security over the land on which a capital funded service is built. Generally speaking, decisions to approve or remove funding should be reviewable by the AAT.

• Accountability. Service providers should be obliged to keep records that enable the Commonwealth to verify that the service has received the money it should have received and that money given for specific purposes has been spent for those purposes. Commonwealth officers whose duty it is to monitor services should have the powers necessary to do so.
• Enforcing obligations. The Commonwealth should have an effective sanctions regime so that it can enforce its conditions of funding. The sanctions regime should be well known to service providers and should be applied fairly and consistently.