The Government has received the Royal Commission into Aged Care Quality and Safety (the Royal Commission).[1]
A Split Royal Commission
The Commissioners divided on governance and funding issues.
This is an extremely unusual outcome. Royal Commissions tend to provide unanimous recommendations.
At the very least, there is usually an odd number of Royal Commissioners to avoid the inelegance of a split Commission.
This is not something the Government would have wished.
We will focus on two areas discussed by the Royal Commission: the creation of a rights based system of health care and the duelling governance structures designed by the Commissioners.
A rights-based structure.
The Commissioners framed their view on the basis of Article 12 (1) of the International Covenant on Economic, Social and Cultural Rights[2], which recognises the right to ‘the enjoyment of the highest attainable standard of physical and mental health’ as well as the United Nations Principles for Older Persons[3] (1991) and the Madrid International Plan of Action for the Aging (2002).
To establish this, they recommended:
- legislation should provide a system of aged care based on a universal right to high quality safe and timely support and care;[4]
- a list of rights that could be used to assist the interpretation of the Act and subordinate instruments;[5]
- that the paramount consideration in the administration of the Act be ‘ensuring the safety, health and wellbeing of people receiving aged care, as well as putting older people first so that their preferences and needs drive the delivery of care’, supported by a number of principles such as ‘certainty that (aged care recipients) will receive timely and high quality support and care in accordance with assessed need’;[6]
- creation of a general duty to ensure personal or nursing care provided is ‘of the highest quality and safe so far as is reasonable, having regard to the wishes of the person receiving care and ‘any other relevant circumstances’;[7]
- review of the Aged Care Quality Standards, including a review of standards so as to incorporate ‘elements of care delivery which reflect a focus on the quality of life of people receiving care’;[8] and
- a qualified right of action to sue where a breach of the general duty is also a failure to comply with one of more of the Aged Care Quality Standards.[9]
As will be appreciated, the recognition of what could conceivably fall into a ‘general duty’ (something which is meant to cast a wide net) can be extremely difficult to identify.
We have had experience with legislative schemes that establish general duties.
It is not inconceivable that the ambit of what constitutes a breach of a general duty could be discovered by (presumably) the Federal Circuit Court (at first instance) as it makes rulings on civil prosecutions.
In these circumstances, courts and tribunals typically look at specialist normative documentation to gain some understanding as to what constitutes a reasonable a compliant health care provider should provide so as to comply with a general duty.[10]
This will be particularly important as the duty requires the delivery of ‘high’ quality care – something that’s pretty subjective. Is there a material difference between ‘high’ quality care and ‘adequate’?
What is the dividing line?
The discussion of what constitutes ‘high quality care’ in recommendation 13 of the report does not shed much light on what constitute high quality care.
Perhaps the most appropriate legislative design would be for standards to be designed with broad outcomes (which would operate in some way as a ‘right’) matched with more specific outcomes capable of measurement.
Conclusion
In recent years, Australian Government policy has been to make aged care more ‘consumer-directed’. That might accord a measure of freedom of choice to some people and in some circumstances. However, in our view it will never be enough. People need to be placed at the centre of the system in a manner that meets community expectations and ensures their dignified and respectful care. We consider that a rights-based approach which permeates all aspects of aged care is far more likely to ensure that older people are treated with humanity, dignity and respect.[11]
The transition from a ‘consumer’ to a ‘rights based’ model of aged care provision will be interesting to see.
Patient choice is recognised in the Report: the word ‘choice’ appears 81 times and ‘wishes’ 9 time in Volume 3A of the Report.
However, in a scheme that has at its base a requirement to discharge a general duty (in which patient wishes are something to ‘have regard to’[12]), with a plethora of enforcement tools available to encourage compliance, a possible unintended consequence could be the development of a ‘elf and safety’ view in which providers aim towards abstract compliance according to the ‘manual’ (whatever document is considered ‘best practice’ for a particular activity) rather than patient need.
We will see.
[1] https://agedcare.royalcommission.gov.au/
[2] http://www.austlii.edu.au/au/other/dfat/treaties/1976/5.html
[3] https://www.ohchr.org/EN/ProfessionalInterest/Pages/OlderPersons.aspx
[4] Paragraph 3a of recommendation 1
[5] Recommendation 2
[6] Recommendation 3
[7] Recommendation 14
[8] Recommendations 19-21
[9] Recommendations 101 and 102
[10] Assuming that the proposed general duty is construed in a way that looks at what a provider should have provided rather than could have provided: SKM Services Pty Ltd v. Magistrates Court of Victoria [2019] VSC 460
[11] Page 19, volume 3A
[12] Given the structure of the Report, it is unlikely that a requirement to ‘have regard to’ patient wishes would obviate whatever constitutes high quality and safe care, short of an expression rejection of a particular service proposed to be offered by a provider by a person with competency. One can foresee a lot of use of release and indemnity forms when offering services.