Aged Care Regulatory Framework

Update: 3 August 2017

The failure of the aged care regulatory framework to protect residents from harm in aged care has once again, been brought into question this time with the ABC 7.30 Report.

Billions of dollars in public money is handed over the aged care industry each year and for that we should expect more than these all too frequent horror stories. It's time for the regulatory bodies and the aged care industry to come clean and own up to their failings so that we can move to a more transparent system where Government and aged care providers are actually held accountable for the care delivered to elderly Australians.

Background

Following a meeting with The Hon Ken Wyatt, the Minister for Aged Care in May 2017, Aged Care Crisis submitted an analysis of the aged care regulatory framework to the minister on the 7th June 2017.

Experience: We have closely followed the development and implementation of aged care policy for many years and have been concerned at the unwillingness of the market and politicians of both major parties to listen to critics and address their many concerns. In our view, the problems revealed in the accreditation and complaints processes are symptomatic of a wider structural problem in aged care that must be addressed.

Aged Care Crisis and its representatives recently attended public consultation workshops as part of the Aged Care Legislated Review in Melbourne, Sydney and Brisbane. There was much criticism of the accreditation and the complaints systems, as well as the complexity and availability of information for both residential aged care and home care.

Put simply, the aged care system is not working for the elderly or for the community because of flawed policy by both parties. Acknowledging the problems and then working constructively together with the broad community to rebuild the system in a sustainable way can remedy this.

July 2017: Analysis of the National Aged Care Quality Regulatory Framework

Restoring trust

Aged Care is a sector where trust and trustworthiness are vitally important but these are qualities that are in short supply in the predatory marketplace. Aged Care Crisis is a strong critic of the current system and is well aware that this creates further distrust.

We would far rather work constructively with others in making the changes that are necessary.

In Summary

The following is an excerpt from our letter and submission around the Review of National Aged Care Quailty Regulatory Processes.

Regulation of aged care

1. We express our concern that social responsibility is no longer a requirement in the aged care marketplace. We look at the way the politics of responsibility has swung between those who are empathically motivated to care for the vulnerable and those who see their care as a source of profit.
2. We note that on the one hand, neoliberal free-market policy is all about less regulation, but on the other, the practical consequence of the problems created by this policy is that much more regulation has been required.
3. This regulation has been centrally controlled and that control has been vested in the marketplace and those who think in the same way.
4. The revolving door with industry has resulted in “regulatory capture” by the marketplace and the neoliberal discourse. These patterns of thinking are very different to the discourse of care and display little insight into the essential nature of care. As a consequence there is a startling lack of knowledge about care in senior management.
5. The USA and UK have similar policies to Australia and in these countries the same problems have developed. Regulation has been ineffective.
6. Regulating in this way has created major conflicts for those involved:
   1. While the political and market discourse demands that regulation be reduced to a minimum, the problems in the system demand more regulation and not less.
   2. There are strong pressures on regulation to protect the industry and the market from embarrassment. Exposure of the many failures not only challenges and embarrasses industry and government, but confronts those who are in charge of regulation. They too, are believers in the policy of less regulation.
   3. The claimed rigour of the regulatory process is the rock on which the systems legitimacy depends. This is used to counter criticisms of the system when failures occur. It is also the rock on which our claims to a world class system and our ambitions in the global aged care marketplace rest.
   4. There is a deep conflict for those regulating. While they believe that they are regulating to improve standards and protect citizens, the pressure of their beliefs and the unspoken expectation that they will not embarrass government and marketplace are far more powerful. This leads to ritualisation and tokenism that undermines effective regulation. Coalface regulating staff who see what is happening and who try to act are overruled by their superiors. Regulators ultimately regulate in the interests of the system and its participants, ahead of those it is there to serve.
   5. The extent to which the regulators are committed to meeting their responsibilities to government and the market is revealed in the way accreditation bodies have reported their data to hide and even counter evidence that would challenge governments claims and to support the illusion of 'world class' care.
7. When failures have increased, when regulation has come under pressure and when doubt has crept in to the minds of regulators, government has abandoned all pretence of regulatory independence and put senior industry figures in charge.
8. Formal regulation is far less effective than the social control exerted in discourse with community members in direct contact with care. They come to the problems from different points of view. In a civil society formal regulation is there to support but not replace the community. Both are necessary and should work together. Current managerial policies have negatively impacted the discourse on which social control depends so that there is little social control in aged care.

Accreditation

1. Accreditation was designed to assist motivated providers develop processes that improve care and not for any other purpose.
2. It was not intended to be a measure of standards of care, be a regulator or be used as a marketing tool. It has failed when required to perform any of these functions.
3. Accreditation has presided over and sanctioned a system where staffing levels and skills are so poor by international standards that it is impossible to provide good care and many failures are likely.
4. A focus on consumer experience when assessing standards, while ignoring the clinical outcomes of care, results in a distorted view of what is happening in the sector.
5. There are multiple inadequacies in the accreditation process.

The Complaints System

1. There has been intense and continuing unhappiness about the manner in which complaints have been handled.
2. The Walton review in 2009/10 was very critical but its recommendations compounded the problems by attempting resolution within a context where those who complained were powerless.
3. The government responded to the critical report and the expected consequences by putting appeals to decisions about complaints in the hands of a safe commissioner from the industry.
4. There is a list of concerns about its ineffectiveness.

The Department of Health

1. Whistleblowers spoke out in 2012 about the way the funding system was being rorted and the way in which the health department blocked their attempts to have action taken.
2. The health department responded by educating instead of sanctioning.
3. A 2014 review of the Department of Health revealed a toxic culture in which unpopular information was not welcomed.

Part of a systemic problem

1. The aged care system is bureaucratised and controlled in a way that frustrates and inhibits the flexibility and the qualities that are needed for care.
2. The many failures in aged care are largely due to inadequate numbers as well as insufficient skilled staff, and the motivation of some staff. This is due to competition to be profitable rather than to care, an ineffective customer, a disengaged community and a regulator that protects the system rather than those it is charged to care for.
3. There are major problems and deficiencies in the collection and reporting of data.
4. Ineffective regulation has become burdensome to the industry.
5. The use of an unchecked free-market to provide care has resulted in a multitude of extra costs for both providers and consumers. It may be an efficient way of making money but it is an inefficient method for providing care.

Responsibility

1. The Government was criticised in 1997 and warned of the consequences of this sort of regulation again in 2007.
2. The responsibility for the problems lies firmly with policy makers who have adopted and imposed processes and patterns of thinking on the sector, which inhibit and prevent it from functioning effectively.
3. There are significant problems for politicians in addressing consequences, which will require a level of integrity and cooperation from politicians that the community is not used to.

The Review Panel

1. Reservations are expressed about the failure of consultation in the review process and about the appointees. We are concerned that this review has once again been set up to take the short-term expedient and paper over the problems in the system. This will be a disservice to all Australians.

Suggestions for change

1. The current aged care system has been created within a neoliberal free-market discourse and the discourse of care has been delegitimised and tokenised.
2. The values and motives required for effective care are vested in the community, which is the home of the discourse of care. It has been excluded.
3. To address the problems in care and in regulation it is essential that the discourse of care be fostered and become the driving discourse.
4. We propose an alternative approach to regulation, one which embraces the community and harnesses their strengths to manage and regulate the industry.
5. Proposals are made as to how that might be accomplished and how changes that are occurring in society can be harnessed to the effort.