Review of the Aged Care Complaints Investigation Scheme - Assoc Prof Merrilyn Walton, October 2009
This was a very thorough review that found that, in spite of good intentions, the complaints system (CIS) run by the Department of Health and Ageing did not operate effectively. Professor Walton went to the heart of the matter and made many criticisms. Essentially the department was trapped in regulations and obsessed with natural justice rather that resolution for the distressed resident and family.
Walton recommended that a separate independent complaints unit be set up. That will be very welcome if the government agrees and I think it is essential. In my submission I had urged her to advise that the complaints system be sited in the local community who should oversee the process. She stopped short of advising this.
Introduction
In late 2007, I participated as an observer in a meeting between a community group acting on behalf of residents who had made complaints, and senior staff from the department's complaints unit. This followed adverse press reports criticising their failure to adequately address multiple complaints. There was clearly substance to many of the concerns.
It soon became clear that the staff were well motivated and hard working, but that the structure of the complaints system rendered them ineffective. The department staff were distressed by the allegations being made as they felt they were doing a good job. It was clear to me that it was impossible for them to effectively address the residents complaints because of the constraints and structure imposed on them but they did not recognise this. As I recall I made this point to them at the time.
In my submission to Professor Walton review I wrote of this meeting:
In my view this was because they were frozen in processes and simply did not have the capacity to respond appropriately to the situations.
I was told by the group that an investigator, speaking on the phone, had responded to a question asking why he had failed to interview a nurse, who was a key witness. He had responded that the nurse had been fired (or was it resigned?) after a dispute with management and so lacked credibility.
It is this sort of attitude that destroys the credibility of the scheme and any confidence in it. Complainants have no means of knowing whether their complaints have been fairly investigated or not. Past experience with the all too common failure of systems that lack transparency fuels our distrust and anger.
Before dealing with Professors Walton's review I am going to deal with my submission and include some extracts. This is because the vast majority of my comments and those of others were taken on board by Professor Walton. But her otherwise excellent recommendations did not include changes that I thought were critically important. Much of the content in my submission to this review and that to the review of the accreditation process, which was submitted before this, are similar. First the summary.
Submission to the Review of the Aged Care Complaints Investigation Scheme (J M Wynne)
Summary
This submission comes from an outside and very different perspective to that which currently prevails in the sector.
It uses this perspective to critically examine what has happened to the nursing home sector over the last 12 years and to identify what appear to be key and very fundamental problems not only in the whole sector but particularly in the accreditation and complaint handling processes. It is clear that there is insufficient information and that the accreditation and complaints processes are not working for the community.
Four key problems for the Complaints Scheme are identified:
- The disenfranchisement and disempowerment of the community
- A lack of on site empathic person to person communication
- An excessive emphasis on process rather than resolution for the parties
- An almost total lack of transparency
It is suggested that the key to redesigning both accreditation and complaint handling is to place the community at the centre of both processes and give them responsibility.
To show that this is a real and a practical possibility and not a pie in the sky cop out, I have outlined a possible model in some detail. It is not intended to be final or definitive but to open discussion. There are problems and to be successful the community must embrace it and become involved. For this reason its implementation will require careful and staged introduction and close monitoring.
The consultation paper opens debate by detailing some of the areas in which the complaints system has been criticized. Simply addressing individual items will do little more than tinker with the problems which are systemic. They will not disappear.
This submission examines the consultation paper and shows that, with a model like that proposed, objectives will be better met, processes will be simpler and more effective, and it will be far less burdensome than either the current system or any of the modifications proposed. Many of the issues will simply drop away.
Because the way we use language has played an important part in what has happened in the past, and because it will play an important role in any fundamental changes made, I have included an appendix in which this is explored.
A few extracts from my submission will show the thrust of my criticisms:
Many complain that witnesses are not interviewed, offered evidence is not examined and that communication is delayed and impersonal.
It is here that the problems lie. If no solace is provided, and if the parties are left aggrieved and hurt because there is no resolution for them, then it matters little if "natural justice" is provided. The current process is excessively legalistic. In my view all of those cases aired on the recent Four Corners programme could and should have been resolved in a way that salved the hurt they had suffered.
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There is a sense of disenfranchisement, distrust, disbelief and suspicion as a consequence of the lack of transparency and the unsuitable and often meaningless nature of the information that is publicly available. The recurrent scandals, and the way in which the press pick these up as newsworthy, is a measure of the distrust.
I addressed the difficulties created for the aged care system and the complaints mechanism by defining this as a market and subjecting it to market processes are addressed:
The very nature of nursing home care when bundled as a commodity is such that the product will of necessity be flawed - outcomes will ultimately be unsuccessful. In such an emotive area many "customers" will inevitably be aggrieved, angry and questioning of the product purchased. As a commodity, aged care has future unhappiness with the product built into it. Additional care is needed to address their hardly unexpected suspicions.
Financial and staffing constraints operate in a sector that is open ended so rationing is necessary. Market strategies promote and promise in order to sell so creating expectations that the system is unable to meet. Rationing requires community involvement, understanding and the sharing of responsibility.
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Members of the community making complaints have become supplicants to an arbitrary and largely impersonal and legalistic process concerned with rights more than resolution. They are often left bruised and unhappy about decisions that seem incomprehensible and unjust to them.
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The actual standards of care in Australia's nursing homes and the validity of the current resolution of complaints are not critical to my argument here. What is critical is that we do not have the information to make valid decisions in regard to either, and that neither is working for the community.
While both DOHA and the agency may have brought in outside agencies to review their practices, this has not resonated with the community or satisfied them. It has not been positioned within frames of understanding and fields of relevance that they relate to.
What must be done if accreditation, oversight and complaints are to work is to fully engage the community in the process and to produce valid information that will mean something to them.
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Critically important in resolving any complaint is a sympathetic and understanding hearing, preferably by someone the complainant knows and already trusts. The most common cause of litigation and unhappiness is a lack of person to person interaction and simple people skills. The most serious errors that can be made are an outright denial, an attempt to demean or belittle, an attempt to claim superior knowledge, to embroil the family in a drawn out process, or not to properly address issues when they are real. Problems can be addressed and improvements made promptly, with gratitude and grace, and without admitting fault. Briefing on process and, where possible, direct involvement in resolving the issues provide a sense of involvement and fulfillment for the complainant. It is clear that this is not happening in aged care.
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The proposal I am making very specifically puts the community in possession of the knowledge and the negotiating power needed to successfully challenge owners when what they propose is not in the best interests of the residents and the community.
I went on to show that a structure which placed the community at the heart of the complaints system, of accreditation and of oversight, was practical, and had the potential to address the majority of the problems we have. (download this submission).
Submission by Aged Care Crisis
Aged Care Crisis made an excellent submission to this review. There was a great deal of uninamity between this and other consumer admissions including my own. Their submission focussed on:
- the need for a truly independent CIS,
- the fear of retribution,
- delays in investigating,
- excessive reliance on documentation,
- the power imbalance between provider and resident,
- the lack of transparency in the process
- and the unsatisfactory relationship of dealings with the deapartment.
Other issues related to whistleblower protection, attention to the evidence and documentation provided by complainants, accurate documentation, training of investigators, and lack of power for the aged care commissioner.
The Walton Report
There were 119 submissions. Face-to-face consultations were held with more than 20 stakeholders.
A step like that I suggested would require courage. Although it would ultimately benefit good providers as well as the community, my criticism of markets and the situation that has arisen as a consequence, will make them suspicious of any proposal I make - to say nothing of my criticisms of the department. While Professor Walton's report acknowledged the importance of transparency, of the community, and of addressing the complaints locally, it lacked the courage to actually involve local communities directly and to create a structure which will give the community effective leverage.
This is certainly the most insightful and practical of all the reviews that have been conducted into aged care. My criticisms of this report are not of its findings but of its lack of courage in not going far enough in its proposed changes. In fairness Walton is very experienced. She is well able to distinguish between what is desirable and what is possible - especially for a single person review. Courage is of little avail when the odd against accomplishing what you advise are overwhelming. To progress this further she needs allies who will press these issues strongly. The current productivity commission inquiry into aged care provides an opportunity to do this and the opportunity should not be lost.
Walton's review not only confirms what I said and what many others have said in their submissions but it explores and explains the reasons for that in great detail. It goes further than I did in one respect, it advises that the complaints process no longer be the responsibility of the department of health and aging. Instead she proposes an independent body responsible directly to the minister.
Because of Walton's findings I fully support this. It is critical though that this new body, if it is to gain trust, be a community based body. It would represent the community and not the providers. This would put the community in close communication with providers, both locally and centrally and they would have no choice but to listen. I will explore this further in my submission to the productivity commission.
The Brief
The terms of reference related to natural justice, communication issues, staff training, access to expertise, the risk assessment framework, adequacy of information collected, relationship of the CIS with others, processes, practices, timeliness and suggestions for improvement.
Walton's findings
The review concluded that although no one was to blame there were major problems in the way in which the CIS operated. This resulted in an inappropriate complaint system that did not serve residents well.
The extracts I have selected are those which most interested me and they are not even in the same order. While they hopefully give the flavour of this report, they are out of context and reflect my selection. Please keep that in mind. I think Professor Walton's words will speak better than my interpretations of them. That I have only given attention to a small number of the matters she raised does not reflect disagreement or lack of importance - simply my focus. The comments are mine and try to provide context.
Overview
During the review it became clear to me that the difficulties experienced by consumers, providers, staff working in the CIS and the Office related mainly to the design and inadequate structure and resources of the CIS. Therefore my main recommendations relate to the structure and location of the CIS. I recommend that the aged care complaint scheme be restructured into three divisions; Assessment and Early Resolution, Investigations, and Communications and Stakeholder Relations. (Page 11)
Natural Justice
The common touch, it seems, has been lost in a legalistic approach. The department were strongly motivated to provide natural justice
Conclusion
Taking a strictly legal approach to natural justice, the CIS does in the main afford natural justice to those owed the duty. The CIS focus on procedural elements and administrative outcomes in relation to whether a breach has occurred under the Act or the Principles has created confusion and a lack of clarity about the process. There is confusion within CIS about their obligations to afford natural justice both to providers and complainants who do not have a clear understanding of the role and obligations of CIS in the complaint process. (Page 23)
Common themes in the submissions and covered throughout this report, include:
- Lack of transparency in the investigation and decision-making process;
- Over-investigation and CIS demands for voluminous documentation on minor matters;
- Perception that greater weight is given to the evidence of the provider (including documentation) than to the evidence of the complainant;
- The information, including the Statement of Reasons for the decision, provided to the complainant at the end of an investigation does not provide sufficient useful information to the complainant, nor does it clearly explain the reasons why certain decisions were made and what outcomes they could expect;
- Investigations by the CIS do not always meet the expectations of the complainants; and
- Many complaints would best be resolved at the local level or by CIS staff using alternative options such as mediation. (Page 78)
Communication
A common theme in most complaints, irrespective of the type of service, is poor communication. There are many reasons for this - pressure of time, workload, misunderstanding one's role and responsibilities, administrative requirements and inefficiencies within the system. We know that only a small proportion of people who are dissatisfied with a service will lodge a complaint. ------------------------- Overwhelmingly the submissions in this review have portrayed a complaints scheme which is not currently meeting the expectations of its stakeholders. (Page 24)
This review has found that the CIS has significant communication problems with both the providers and the complainants. While the context is different, providers and complainants are saying the same thing (Page 25):
• need for upfront clarification about the nature of the complaint and the issues;
• better assessment and more appropriate resolution methods;
• more involvement in the complaint process;
• access to final investigation reports; and
• quality statement of reasons.
The lack of a clear management structure for the national complaint scheme and the overly complex reporting and accountability requirements has led to different complaints management arrangements developing across the STOs (State and Territory Offices). This is impacted by the pressure on STOs to maintain service delivery in the face of increasing numbers of complaints, compulsory reporting requirements and follow up, a growing backlog of cases, and external criticisms of their operations. This has resulted in wide variation and inconsistent handling of complaints across Australia.
Whilst doing their best to meet the requirements of the CIS, many investigators have competing priorities and responsibilities and feel that they are have not received sufficient training to meet these requirements. Some staff appeared to either adopt an overly legalistic approach to their role in relation to investigating potential breaches, or adopt a quality improvement approach necessitating working hand-in-hand with the providers. -------------------------------- The problem is one of design and resourcing. The CIS is not designed to be a streamlined and professional complaint body, yet the stakeholders have those expectations. (Page 28)
Many submissions raised the lack of involvement of family members or care recipients in the investigation process: residents not interviewed, complainants not interviewed, family members not consulted (investigators take details from the resident's file which may not be an accurate portrayal of the situation or events). Conflicting statements are not resolved. (Page 35)
Reportedly where, the provider's documentation does not disclose a breach, or a breach is not witnesses by an investigator when present at the facility, a breach is not found to have occurred. One complainant reported to the advocacy service that information given to the CIS by the provider, including details of supposed conversations with the complainant was untrue. However the CIS accepted this information at face value and did not verify with the complainant whether it was correct.
They (advocacy service) reported that the CIS told them that it cannot determine that a breach has occurred unless it finds evidence at the aged care facility substantiating what the informant has said. Reportedly where, the provider's documentation does not disclose a breach, or a breach is not witnesses by an investigator when present at the facility, a breach is not found to have occurred. One complainant reported to the advocacy service that information given to the CIS by the provider, including details of supposed conversations with the complainant was untrue. However the CIS accepted this information at face value and did not verify with the complainant whether it was correct. (Page 36)
A review of a sample of investigation files and the correspondence with family members and advocacy groups suggests that there is substantial variation in the quality of final investigation reports and Statements of Reason. (page 37)
Many submissions described the approach to investigations as almost entirely based on an exhaustive examination of documentation rather than reliance on discussions with staff to elicit information and explanations. Providers also described the disruption to the normal operations and the enormous stress on staff involved in the investigation process. They observed that many situations could have been clarified and resolved quickly through more open communication with staff and management during the course of the investigation. (Page 47)
Most established health complaint bodies try to resolve the majority of complaints locally and in the assessment phase and only investigating those that raise significant questions about the health and safety of care recipients or significant clinical issues. About 85-100% of complaints are resolved satisfactorily without investigation. (Page 28)
Mistrust in the outcome of a complaints investigation can be a powerful motivation for further examination through external review of the decisions. Creating a professional and trustworthy complaints scheme requires dedication and focus. -------------------------- The scheme as currently designed is fragmented throughout many layers in the Department. (Page 30)
A prevailing theme in complaints to the Commonwealth Ombudsman about the CIS is that the CIS processes do not meet the expectations of the complainants in resolving their particular matter. Complainants want explanations, accountability and redress for a particular incident which impacts on them or their relative. Many will also be seeking assurance that the incidence will not be repeated. The current CIS focus on its regulatory functions - has there or has there not been a breach of the legislation and whether that breach has been rectified - does not offer complainants accountability for past incidents. (Page 33)
The Commonwealth Ombudsman observed that while issuing an NRA and identifying breaches of provider obligations are important, they should not drive the response to a complaint at the expense of resolving complaints amicably. It is important that the delivery of training and setting of performance indicators for the CIS includes a strong focus on complaint resolution as well as investigation, because different skills and training are required for the two activities. (Page 43)
Reluctance to complain for fear of reprisal from the service was raised during the consultations and in the written submission many times. It was noted that while there may not be overt victimisation or retribution for making a complaint there can be hostility ---------------------
The submissions also highlight that care recipients and family members who live in rural and remote areas have the added fear that there may be no other care alternatives, and maintaining anonymity is more difficult in smaller place.
My Plea for an independent local resolution structure
One submission on behalf of care recipients from culturally and linguistically diverse backgrounds highlighted the necessity to have complaints resolved as close as possible to the source (Page 32)
The role of family members is vital to the successful transition for the care recipient. They can be a valuable resource for the aged care service. In this context the CIS should aim to resolve complaints as close to the situation as possible and involving all the relevant parties. The move towards a focus on investigations has had the unintended effect of alienating many complainants from the complaint process and has left them feeling they are left in the dark after having made their complaint. ------------------------- A consistent theme in the submissions was the lack of involvement of the complainant in resolving their matter. Many had the experience that having made the complaint the next contact was the receipt of a letter about the outcome. (Page 33)
Walton devoted a whole section to the question of resolving the issues locally, which she recognised as desirable. She also recognised that "A focus on local complaint resolution requires a commitment on the part of the providers to providing open accessible and competent complaint resolution."
The volume of unhappiness and the accounts given by complainants speak for the sort of negativity complainants must confront in the nursing homes and the deep distrust that now exists. Many fear, probably with good reason, that they will be belittled and even threatened. Complainants are too often timid and reluctant and don't complain. They think providers are the experts and know best. Without a local mediator this simply will not work. Having someone there to support, mediate and then be there to be sure that there is no retribution is vital.
One of the commonest complaints is that records are falsified and the complainants accounts contradicted by pointing to records. A local facilitator, as the first point of contact, provides an opportunity to preserve the integrity of data at an early stage. When the provider is told of a complaint as the first step, then the opportunity is lost, as is the trust of the complainant.
Most established complaint systems refer matters to be resolved as close to the source of the complaint as possible, unless it raises significant issues that require investigation. (Page 34)
The need for a local facilitator and mediator to focus the complainants issues and help to conceptualise them is in my view reinforced by quoted research.
The first step is to understand the problem. Submissions from care recipients, relatives and advocates report that instructions/information from complainants may not reflect their real concerns. ---------------------- Professor Linda Mulcahy in the United Kingdom found that up to 40 per cent of people who had made complaints to the National Health Service were not clear about what they wanted, or minimised the seriousness of their complaint because they did not feel confident to question the standard of clinical care. Residents and carers who are equally vulnerable may need assistance with articulating their complaint and exploration of the issues they are worried about. (Page 53)
Many local providers complained about malicious complaints by aggrieved staff and relatives too sometimes. While that might be the case occasionally, it must be unusual. I have heard these sort of comments by a frustrated hospital management but my experience dealing with nurses over a 40 year period tells me this is nonsense. A sympathetic but perceptive non-judgemental mediator, who could be trusted, who is guided by an experienced mentor and, who has come to know both staff and management, would be in the best position to sort this rapidly. The question of managing anonymous complaints and tip offs about problems would also be simplified.
Many provider submissions suggested that complaints are being made by aggrieved staff members (anonymously) and may be malicious or vexatious in nature, and the CIS does not have an evidence based approach to recognising and managing such complaints. (Page 39)
Providers complained of a lack of knowledge. The solution is to have someone in frequent attendance who knows what happens in a nursing home and, if not, would soon learn.
Submissions, particularly from the providers, referred to CIS investigator's lack of knowledge about the aged care industry, which they surmised led to unrealistic expectations on providers in terms of the level of care and services that are available to a care recipient (Page 47)
When receiving a report setting out the reasons for a finding (most should not get that far) the complainant often finds the reasons confusing. By this stage beliefs and attitudes have usually hardened. REjection of the complaint comes as a personal defeat and a loss of face. It is particularly important that the reasons be provided by a sympathetic and trusted source, who can work through some of the issues - and ask for clarification when necessary.
The Aged Care Commissioner in her submission and face-to-face consultation with me raised her long standing concerns about the inadequacy of the CIS's Statements of Reason. She particularly noted that the CIS's decisions she has examined are deficient in relation to the findings on the material questions of fact, the evidence used in coming to those findings and the reasons for the decision. (Page 57)
There are already advocacy groups working in this area and their role might be embedded in a community based service or else be cooperative.
The role of advocacy groups in early resolution is important and can provide complainants with support during local resolution. (Page 69)
The CIS reported that it had problems with staff turnover. A local community might be a fertile source of stable staff - who just might be "nice folk" that all parties can relate to.
In addition, a complaints system needs to nurture, train and retain a skilled workforce which does not easily fit into a bureaucracy where people move around to gain experience of different sections. (Page 75)
Staff located in the community would be particularly well placed to resolve difficulties in community care.
As a result of the limited information that I have received on community care, I have consulted with the Department on work that they have undertaken in relation to community care programs. (Page 76)
While an effective organisation structure (bureaucracy) is clearly essential nothing raises hackles more than actually confronting it. This is well illustrated by the response to the CIS and to accreditation. Its impersonal face should be kept well out of the nursing homes and away from people who have crises in their lives.
The current system in which complaints are part of the bureaucracy responsible for aged care services makes it harder for a complainant to accept the final outcome if it is not favourable to their case. This adds to disquiet in the administration of the complaint scheme, as evidenced by the submissions from consumers and providers who shared their concerns about the impartiality or unreliability of decisions.
A final point to make is that when contradictory statements are made, someone on site soon gets to know if similar things are alleged by others and which staff are involved. They generally learn who can be trusted. It is important that an unresolved complaint does not simply die - but will be "watched" - which is what the complainant would hopefully want in those circumstances. Being rejected as a liar is no resolution for the complainant, any more than it is for a staff member.
The recommendations
Walton found that the department was focused on aged care services and, without a dedicated focus on complaints , they suffered. A dedicated professional service with vision was needed. The bureaucratic nature of the response was alienating, and complainants found it difficult to accept that their complaints did not have merit. There were many deficiencies in the way complaints were handled and investigated. In a highly emotional context a complaints system required transparency and this was lacking. She recommended that as a first step the Complaints Investigation Scheme be separated from the department. I agree completely. I differ in urging that the process of complaints resolution should be primarily based in the local community.
I recommend the establishment of an independent Aged Care Complaints Commission and the creation of the position of Aged Care Complaints Commissioner who will report directly to the Minister for Ageing. The Commissioner would be required to consult with the Secretary or their delegate as required, particularly in relation to sharing of information that relates to the regulatory requirements under the Act and the Principles. (Page 12)
The Aged Care Complaints Commission should replace the current CIS and be a statutory body headed by the Aged Care Complaints Commissioner who would be appointed as a statutory office holder appointed by and reportable to the Minister for Ageing. ---------------------------- The Senate Inquiry in 2005 heard similar issues with the then Complaint Resolution Scheme ('the CRS') to those raised in this review. While there was a strong voice for an independent complaint scheme, that inquiry fell short of recommending a separate body. Over the last four years the issue of independence or perception of independence has not receded with the introduction of the CIS; rather the call for an independent complaint body has consolidated. (Page 13)
In comparison to other bodies, the CIS is the only complaints body that sits within the agency responsible for regulating the same services that it investigates. (Page 75)
