Criticism of Senate Report Community Affairs April 2019: "Effectiveness of the Aged Care Quality Assessment and accreditation framework for protecting residents from abuse and poor practices, and ensuring proper clinical and medical care standards are maintained and practiced"


A good report but one that fails to deliver

This is an interesting report because even though it does not quote or use evidence, it is a better and more accurate assessment of what has been happening in aged care than any of its predecessors.  It does not accept the plausible rationalisations of the industry, of industry bodies and of the regulators, which it strongly criticises.  The report makes recommendations that it believes will address the problems it identifies and what it aspires to do is good.

Patching is not fixing

It has failed abysmally in fixing the failed regulators, which is what it was set up to do. It simply rubber stamps the systems that have failed and once again tries to patch and adjust them without confronting their fundamental flaws.  It is locked into neoliberal and managerial patterns of thinking and protects these by defensively ignoring any content in the submissions that would remotely erode or threaten these beliefs. This includes anything which might limit the control which these ideas exert over society and over aged care.

From our point of view, we see it as having some limited immediate benefits.  Inevitably, the pressures from a competitive market that is unopposed and not controlled by customers or community, will ensure that its belief systems remain intact and eventually dictate how these changes are managed in order to achieve their commercial objectives rather than those of the recipients of care.  This has happened multiple times before and while it does accept and try to address problems better than its predecessors, it fails to address the core problems in the sector. 

All of this suggests that any improvements will be temporary and we will be back here in a few years.

The good points

Acknowledging the problems

This report finally acknowledges that the problems are widespread and describes them.

1. That care is poor

It confirms that care is poor and it is widespread, particularly for clinical care. The main thrust of the report focuses on this and tries to understand why

- - - - the quality of clinical and medical care in aged care services is not of a consistent standard that any reasonable person would accept. The committee is further of the view that issues of funding and the overall viability of the aged care sector are inextricably linked to the quality standards of aged care. (Page 92)

- - - - there simply is no industry-standard model of care at all. (Page 71)

- - - highly concerned with the lack of appropriate clinical governance frameworks in operation across the RACF sector (Page 71)

2. The lack of support when needed

- - - - people who fall in the gap: people who are vulnerable, frail and aged, and who often lack an advocate who is both aware of their needs and is in a position to ensure their rights. (Page 93)

3. The absence of data

- - - - there is a dearth of data and research to support evidence-based innovation and policy making in the aged care environment. (Page 96)

- - - - a lack of sector- wide data capture which can be used to highlight broad areas for clinical improvement. (Page 96)

4. Poor Staffing levels

- - - - the contribution that low staffing levels make to the low quality of care experienced by residents. (Page 98)

5. That regulators have failed and failed badly

The committee is deeply concerned by the responses from the former regulator, the Australian Aged Care Quality Agency, deflecting any responsibility for the abject failure to regulate the quality of care standards at the facility in Oakden, which has ultimately led to this inquiry and arguably been a catalyst for the Royal Commission into Aged Care Quality and Safety.

The committee remains concerned by some responses from the incoming regulator, the Aged Care Commission, and from the Department. There are some instances where both entities have deflected regulatory and oversight responsibility for care that occurs within the aged care environment.

- - - - there should be a clearly defined principle that the Aged Care Commission has ultimate duty of care for the regulation of aged care. (Page 95)

- - - - The current practice of light-touch regulation of restrictive practice has been proven a failure. (Page 100)

6. Palliative care (Pages 17, 66)

Palliative care is an important issue in clinical care within RACFs, particularly given the increasing acuity in incoming residents (They listed the multiple problems identified in submissions but particularly the needs for staffing) (Page 17)

7. Recognises that for government too, money comes first.  Money and not care, is the driving force.

- - - - aged care works backwards by developing its care model based on funding availability, rather than developing the funding model based on care needs. (Page 90)

8. Has the right sort of objective for regulation, recognising that it works best when the culture and the discourse supports openness and cooperation in addressing issues. This is what we have been pressing for.

- - - - consider how to move the regulatory environment to one which promotes and incentivises open disclosure. (Page 97)

The problem in all this is that the regulation it proposes is unlikely to achieve these goals in the long term because it is treating the symptoms and not the disease in the system.

Discrediting the myth that 'Age is not a Disease' and 'Aged Care is NOT Healthcare'

The report spends a long time discussing the issue of poor care and particularly poor clinical care, and then blames most if not all the failures on the problem created by this myth.  While this issue is very important and the report is partly correct, we suggest that it focuses on a simplistic explanation which plays a minor role at most in causing the problem.   This allows it to avoid the root causes of the problems and the need to confront the failure of the political policies and beliefs of both major parties.

Aged care is not a disease: While it does not specifically spell out one of the early illusions of the free market neoliberal agenda in aged care, it addresses it in its own terms.  The basic illusion expressed by others is that aged care is not a disease but a normal process.  It follows therefore, that aged care is about supporting the elderly and not about providing clinical/medical care.  This is usually called medicalising and that it is claimed compromises care.  Too much bad medicine given by the poorly trained certainly does, but that is not an argument for not providing needed care.

Nursing homes not hospitals: The form that this takes in Australia is the belief that nursing homes are the institutions where the aged are accommodated and their personal needs met.  Clinical/medical care are supplied by others who are brought in to do so.  They are not a responsibility of the aged care providers and have their own regulator.   They should not be regulated by aged care regulators. 

This was put to the committee in different ways by providers and some of the provider organisations.   The committee forcefully rejected the argument and insisted that clinical care was a critically important component of aged care.

For example:  In late 2016 the MD of Seasons Aged Care, a prominent provider, and board member of the industry group LASA strongly asserted that Age is not a Disease – Aged Care does NOT belong in the Healthcare Domain.  Bizarrely, many with views like this see health care not as the foundation for a good quality of life, but as 'medicalising' aged care and so stripping away quality of life. The problem is that medical care is costly and not profitable, so that ideas like this immediately resonate.

The Agency too: Members of the Accreditation Agency's board were drawn from industry.  Its CEO came from the industry body LASA.  Those doing the assessments are recruited from provider organisations - many without clinical skills.  We can understand how the agency would have been captured by this pattern of thinking and would have undervalued clinical skills in its assessors and in its assessments.

The report also creates another illusion by artificially separating clinical from medical care.  It calls the care given by trained nurses 'clinical care' and that given by doctors 'medical care'.  The two are not separable and cannot be handled separately.  That is very unhelpful.  In fact, separating clinical care from personal care is also somewhat artificial

What is needed is a continuum of care by people who are working together, although the skills and training of those involved determines what role they play.  Dividing them up into bits is unhelpful.  We can understand why the system has failed so abysmally to supply or detect clinical failures in aged care.

But we have a different explanation.   The committee's explanation is only a small part of the story.

Where the report failed

The explanation is inaccurate: The way clinical care is downplayed has been an issue that Aged Care Crisis has addressed in several of its submissions. This is the first time it has been addressed by an inquiry.

The explanation offered by the senate committee that this situation came about because the distinction between hostels and nursing homes was abolished in 1997 is of doubtful significance. At best it would have had a minor influence.

The real problem: This explanation serves to divert attention from the real cause which was the commercial priorities of the big companies.  The real problem was commercial because the way money was made from nursing homes in all countries was by keeping costs down.  This meant fewer nurses.  

Justifications were required and a new illusion developed to make it legitimate.  Dysfunctional systems are built on layers of illusions as new ones are needed to support the belief systems used when they are threatened.

In the late 1990's there was intense enthusiasm in the USA to expand globally, partly because government in the USA were cutting back on some money making strategies.  Private care in other countries provided huge opportunities because it was poorly regulated. 

Market strategies:  Consultants were soon offering advice like this:

"Tremblay (person's name) suggests that companies with managed-care expertise approach governments with their ideas on how to save money and improve quality. The key is understanding a government's 'pain,' Tremblay says. 'Governments can be silos of opportunity'.''

Source: 'The new world of managed care'. Modern Healthcare (International articles) November 3, 1997

In aged care that meant persuading governments that you did not need nurses – the biggest cost.  Companies would offer to sort that out.   Over the years since then we have seen some global business organisations advising clients by promoting the idea that aged care is not a disease and it is not about medical care – sometimes describing the problems with medicalisation.

A more direct source: One very charismatic US businessman had built an meteoric nursing home empire by 'double dipping' in providing step down care that hospitals had been paid for in his nursing homes and charging again. Politicians in the USA had been struggling with nursing home costs for years. In the 1980s they saw markets as the solution. His very successful sales pitch was that there was plenty of fat in the system. You did not need trained nurses to wipe bottoms and shower people.  Government needed to butt out and leave it to the market to sort out.  This was music to politician's ears and his claims to be a visionary aged care authority were unquestioningly accepted.

He came to Australia where he met with and was welcomed by politicians and the business community.  Both were soon echoing his ideas in their public statements.  He bought some small hospitals suitable for step down care and the minister announced plans to revolutionise health care using step down care.  He invested in a small company Alpha Healthcare intending to expand into aged care. 

The Foreign Investment and Review Board (FIRB) had been supplied with information.  In spite of its negative report Sun Healthcare was welcomed by politicians.  But authorities in the USA were waking up to what was happening in their industry. Things soon unravelled when the USA stopped the double dipping.  The US company was charged with fraud and some US states blocked it from investing because of poor care. It failed a probity review in Victoria and it was blocked from investing there. 

Sun Healthcare entered bankruptcy in both countries.  It dumped its discredited founder.  He continued to protest his infallible vision but no one was listening.

Applying these ideas: These appealing ideas developed a life of their own in Australia.  They fitted well with the free market neoliberal ideas that were being introduced.  Aged care ministers and politicians have repeated the myth in various ways over the years as have many in the industry.  

Tony Abbott became Minister for Health while Sun was in Australia.  When he became Prime Minister in 2014, his government moved aged care out of the Health Department and into Social Welfare, a clear indication of what government thought about this.  As one geriatrician put it health and aged care passed each other 'like a ship in the night' - without any contact.  It was a move that created problems.  Aged Care was returned to the Department of Health after Abbott was defeated. 

In 2016, a board member of LASA was still insisting that "Aged Care is not a disease" and in 2018 the same sort of arguments were made to the senate committee, which for the first time explicitly rejected them.  That is an important step if it is accepted by the rest of parliament but, like the poor staffing, it is a symptom and not the root cause of the problems that the senate report claims it to be.

Protecting the belief system

Every belief system protects itself and aged care is a challenge to both neoliberalism and managerialism to which both major parties have been  committed.

To have further denied problems was not credible.  But in doing so believers instinctively protect their beliefs and maintain control.  Most of the recent inquiries and reviews but particularly the Carnell/Patterson review have been highly selective in what they say and the material they quote.

Example Braithwaite's criticisms:  Both the senate and Carnell were supplied with detailed information about John Braithwaite's strong criticisms of our regulatory system and the belief system that was responsible. He is one of Australia's leading academic criminologists and has spent much of his life studying and comparing regulation in several countries.   Carnell referenced and spoke of his theories supporting them but did not mention his criticisms as all.  The senate report called specifically to address failures in regulation did not mention him or his criticisms in their reports.

Example an empowered visitors scheme: The Public Guardian in Queensland, and the Public advocates in Queensland and Victoria all strongly advocated for an empowered Visitors scheme in aged care in submissions to this senate review. They had experience with such a system and it had worked well. Our submission strongly supported them. This would have brought in an outside group unlikely to support the belief. Government and industry would not have been able to control this potential threat.

While the advocate and guardian submissions and their findings were quoted to support the finding of failed care, their suggestions (and our support) were totally ignored in both their February 2018 Interim Report and their April 2019 one.  They did not even have the courtesy to explain why that would not work.  Doing that would have opened the idea to public discussion which they would not want.

An inadequate regulatory response

The report comes in behind and uncritically accepts and praises the essential elements of all the previous reports.  They mention the Carnell/Paterson report, the report of the Aged Care Taskforce (which was industry-led and based on another 'voluntary code of conduct') and the Aged Care Minister's new reforms to consolidate the regulators under one umbrella. 

It makes some criticisms of the way it is being done and suggests how it might be done better.  These changes might well result in some improvement in the regulatory effort, but it will not address the real problems in the system and they will resurface in time. 

This was a review dominated by Labor.  We worry that this mirrors what happened in 2007, when in spite of its criticisms in opposition, Labor put aged care on a back burner and kept it out of the public eye as much as it could for several years.   To do otherwise, if it wins the coming election with a narrow majority, will expose it to an emotive attack from the current government when in opposition.

Paradigm paralysis

Criticism of Report Recommendations: This report is set within a top/down managerialist control and structure framework. It uncritically accepts and fails to confront inappropriate neoliberal and managerial ideas.

Those who have made it clearly identify with these patterns of thought and are struggling to make existing structures work.  There is no fundamental change here.  There is simply more of the same and the same people remain.  For them this is how it is done – a process driven system, order and tight control.  There is only one way. This is a political system that claims to value innovation here. This is paradigm paralysis.

The report restricts input and influence to those whom they see as credible and excludes any that might rock the boat and be critical.  It creates a system that seeks to control and exclude. The likelihood that we will see more real transparency and any sort of distributive justice is remote.  In a system that embraces distributive justice there is input from many points of view so that process and outcome are balanced and not biased by only one perspective.

The report states clearly that this is to be an 'industry model' and definitely not a community or citizens model.  This is the model created in 1997.

The same model and wording was adopted for the workforce taskforce. The industry responsible for the problem was expected to solve it.   

This is another report from within a castle defending itself against the hordes of barbarians outside the walls of the citadel.

Neoliberalism, managerialism, markets and freedom

It is useful to look back at the thinkers on whose ideas the Neoliberalism they are defending was built, Friedrich Hayek, Milton Friedman, Ayn Rand and the groups they formed like the Mont Pelerin Society.  

There is the unanimous condemnation of 'the collective' which soon included society itself as well as any other sort of control exerted over the excesses of the individual. If we think of democracy as reflecting the will of the collective, of the people, then it too has been in the firing line although they skated around this when challenged. Collectivism they claimed inevitably resulted in 'totalitarianism' and the loss of freedom.

Mankind was seen as driven entirely by self-interest.   Selflessness and altruism were specifically condemned as evil by Rand.  They condemned social justice and saw social responsibility as socialism.  Both were a threat to a free society.  They saw free and unrestrained markets as the only road to freedom and considered that they were self-correcting provided they were not interfered with – ie regulated or controlled.

In the 1980s managerialism, an existing belief adopted neoliberalism as its own. It incorporated ways of controlling individuals and society in the interests of the market or government.  Employees and citizens were bound to and became servants of the organisation.  The economy became more important than the citizens it should have served. 

This free market system originated in a philosophy that embraced individual selfishness and rejected social responsibility and the society whose members it served.  In 1997, it became the vehicle for providing care. Society and its members (potential threats to freedom) were even denied access to accurate data.  We should not be surprised at the consequences.

We should ask ourselves about the freedom from fascist and socialist totalitarianism that these believers promised. In 2002 George Bush Junior claimed Friedman's ideas had delivered freedom! But surely what we have experienced in aged care is a form of market and economic totalitarianism and this carefully managed report confirms that.

In the book 'The Human Costs of Managerialism', which they edited in 1995, Stuart Rees and Gordon Rodley argued that we were being enslaved and that our humanity was being destroyed.  They included a cartoon from Leunig, which makes the totalitarian point and shows how readily citizens embrace dangerous beliefs when their sources of information are controlled.

List of Recommendations

Yellow = how not to do it; Blue = agree we need it; Red = comments

Recommendation 1

5.13 The committee recommends the Australian Government release its consolidated response to all recommendations in key reports made in the past decade to improve aged care service delivery and regulation, and its interaction with the primary health and acute care sectors.

Recommendation 2

5.19   The  committee  recommends  that  the  Australian  Government clarify that residential aged care providers ultimately hold a duty of care to all residents.

No Change - Fox and the hen house. We argue that citizens in each community are responsible for their fellows. Anyone providing care is acting as their agents and responsible to them. Citizens and communities need the power to insist their agents meet their expectations - to oversee and work with their agents.

Recommendation 3

5.24 The committee recommends that the Australian Government implement a clearly articulated principle that the duty of care for the regulation of all care within the aged care residential setting ultimately rests with the Aged Care Quality and Safety Commission.

Minimal change - Keeping it in the family. We argue that they too are responsible to citizens and communities and should work with them.

Recommendation 4

5.29 The committee recommends the Australian Government establish a body with responsibility for aged care research.

Definitely - but who will it appoint and how vulnerable will its funding be? Will funding be diverted away from more independent research eg from nursing and sociology research projects.

Recommendation 5

5.33 The committee recommends the Australian Government continue work to expand the role of the Aged Care Quality and Safety Commission, in consultation with aged care stakeholders, to drive continuous improvement in levels of quality and safety in aged care.

Keeping it in the family. What about 'citizens'

Recommendation 6

5.38 The committee recommends that the Aged Care Quality and Safety Commission work collaboratively with the Department of Health, the Australian Commission on Safety and Quality in Health Care and aged care stakeholders to develop an industry model of care. This model of care should incorporate a model clinical governance framework which clearly defines the scope of personal and clinical care.

Most of this fits with the Regulatory Capitalist framework — self regulation and bodies that have been captured by 'stakeholders' whose interests are protected. What happened to citizens? Its to be an 'industry model' rather than a citizen's model.

Recommendation 7

5.39 The committee recommends that the requirements for a model of care and clinical governance framework be more clearly articulated within the Single Aged Care Quality Framework, including clearly defined service outcomes expected from those frameworks.

Problem lies in the wording. What are service outcomes. Self regulation for the agency.

Recommendation 8

5.42 The committee recommends that the Aged Care Quality and Safety Commission work collaboratively with the Department of Health, the Australian Commission on Safety and Quality in Health Care and aged care stakeholders to develop benchmarks for staffing levels and skills mix, which includes the requirement to roster an Registered Nurse on duty at all times, to assist residential aged care providers in staff planning and aged care assessors in regulating safe and appropriate staffing.

Will nursing homes publish this data for residents and community to see

Recommendation 9

5.49 The committee recommends the Australian Government take action, as a matter of urgency, to ensure the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector is extended to cover the aged care sector.

How without local oversight??

Recommendation 10

5.50 The committee recommends the Australian Government investigate, as a matter of urgency, changes to ensure that the use of antipsychotic medications in residential aged care facilities must be approved by the Chief Clinical Advisor of the Aged Care Quality and Safety Commission.

From a phone in Canberra??

Recommendation 11

5.52 The committee recommends that the Aged Care Quality and Safety Commission develop a regulatory model to oversee medications management in residential aged care facilities.

Another one when previous ones have not worked

Recommendation 12

5.56 The committee recommends that the Aged Care Quality and Safety Commission work with the Department of Health and aged care stakeholders to improve the palliative care environment in residential aged care facilities.

What about responsible citizens instead of stakeholders?

Recommendation 12

5.59 The committee recommends that the Aged Care Quality and Safety Commission work with the Department of Health to develop mechanisms to increase the focus on wellness and reablement in residential aged care facilities.

More of the same.

Recommendation 14

5.61 The committee recommends the Department of Health work collaboratively with the Aged Care Quality and Safety Commission, the Australian Commission on Safety and Quality in Health Care, Primary Health Networks, residential aged care providers and medical stakeholders to achieve better integration of the aged care environment with the primary health and acute care sectors.

More of the same. What happened to citizen's and their interests?