Consultation of the new Aged Care Act

Response to Consultation on the draft of the new Aged Care Act (2024)

Submission to Department of Health and Aged Care by Aged Care Crisis (ACC)

Introduction

In response to the Royal Commission into aged care’s final report in 2021, government has been developing a new aged care act. It has also developed what it considers to be a new model for regulating aged care. It has supported extensive community discussions, explaining the nature of these reforms. We worry that they are more interested in selling the changes wanted by government than in addressing the challenging problems in the system.

During 2023, Aged Care Crisis engaged with several other advocacy groups discussing the proposed reforms including this new act. Many have some concerns about what is being done. While smaller than most ACC has been studying this complex system in greater depth and for longer than most.

In 1999 the government were supplied with information by an ACC member. These showed that the policies based on the free-market ideology (Neoliberalism) that was sweeping the world and had been applied to aged care in 1997 had already failed in the USA where serious problems had developed. ACC was formed in 2005 after these same problems developed in Australia. 

It has been describing these problems and pressing for the system to be reformed ever since but flawed ideologies are always deeply resistant to evidence and challenge. Many others are now calling for these issues to be addressed. Our 2024 submission specifically addresses these problems.

Background

On a page we wrote in 2023 to explain our detailed submission about the ‘new model for regulating aged care’ we summarised

1. the story of aged care in Australia
2. what happened at the Royal Commission and our involvement
3. how government responded to the Royal Commission’s findings
4. our concerns about the Department of Health
5. Summary of our lengthy submission about the new regulations and its nine appendices
6. the recent global interest in “place-based collaborative” solutions for complex social problems like this.

Learn more:  New model for regulating aged care

Introduction to the new Act

Stephen Duckett was in charge of our health department from 1994 to 1996 when free-market policy (Neoliberalism) was being considered for health and aged care. Over the years he has played a major role in health policy in Canada and Australia as these policies failed. He was head of the Grattan Institute Health program section from 2012 to 2022. 

The Royal Commission was deeply conflicted. When Commissioner Pagone (a judge) recommended ‘rebuilding’ the aged care system by decentralising management and oversight and making the system more independent of government, he adopted the model that the Grattan Institute developed. He disagreed strongly with Commissioner Briggs (long time public servant) and condemned the ‘renovation model’ she advised. This model retained the structure of the current system with all its problems. Government simply ignored Pagone’s recommendations and his criticisms. The new act is part of the renovation model.

Duckett’s frustration with the proposed new aged care act is reflected in an article he wrote in January 2024. In this he points out that the old act was “infused with” the Howard Government’s “neoliberal ideology”. He explains that it is “hard to kill the zombies that stalk the aged care policy corridors” and “the draft Act is still riddled with the old ideology”. 

He indicates that “The draft Act has a Thatcherian individualistic emphasis, founded on a naïve belief in markets which can fix everything”. (Thatcher’s individualistic neoliberalism claimed there was no such thing as community). The act assumes “a perfectly functioning market” and aged care is not a perfect market. The act “provides government and industry with a ‘get out of jail free’ card”.

Aged Care Crisis’ submission1.7 MB focuses directly on this neoliberal free-market ideology and its central role in creating a system which the Royal Commission found had “deep and entrenched systemic flaws”, one which needed “whole-of-system reform and redesign”. It analyses this ideology and its impact on aged care and indicates what needs to be done to address this “systemic flaw” and set the system on a path to real reform. As Duckett indicates the new act may be better than the old one but it still does not do that.

Learn more:  Aged Care Crisis’ submission1.7 MB

Outline of Aged Care Crisis submission on the draft of the new Aged Care Act

1. We briefly describe the 2023/4 discussions between aged care advocacy groups.
2. We describe our background and previous attempts to address these problems including how we challenged the Royal Commission’s failure to address these issues in 2020 - after promising it would in 2019.
3. We show how the new Labor government that replaced the Morrison government in 2022 has not changed policy in developing the new act.
4. We note the extent to which neoliberal ideology is being challenged globally and quote from chapters in a recent Australian book to show
   1. how this ideology developed and spread globally, its impact on our societies and our sense of community as well as the extensive problems that have developed in multiple other sectors.
   2. the way it was introduced into aged care and how it caused the many problems we see there.
5. We address five major issues in some depth
   1. the huge power imbalance in this neoliberal market and the consequences
   2. the failure of neoliberal competition policy
   3. the consequences of the conflicts between marketplace patterns of thought and those required in humanitarian services.
   4. The loss of trust and trustworthiness – how to restore it
   5. Regulatory and state capture, and the erosion of our democracy
6. In each section we stress the critical role that communities will need to play in rebalancing the system. We indicate how we can address these issues in aged care by rebuilding and empowering our citizens and our communities so that they can hold both markets and governments accountable
7. We describe how despite the promises made to address them in the Royal Commissions 2019 interim report, these issues largely disappeared from subsequent debate at the Royal Commission after one of the commissioners died - as well as in subsequent policy debate.
   1. We consider what has happened as revealed in this act to be an appalling betrayal of Australia and its older citizens.
   2. The Royal Commission ignored evidence and advice from its own commissioned investigations.
   3. Research commissioned by the Royal Commission described how multiple previous inquiries into system failure over the last 20 years failed to address these problems, yet this Royal Commission did much the same. We include the Executive Summary of a 2010 submission made to a Productivity Commission inquiry into aged care to illustrate the problem. It addressed these issues and made similar recommendations ten years earlier.
8. We express our concern about the manner in which the work of developing and evaluating the new policies and claimed reforms has been outsourced to marketplace advisors. They are deeply conflicted not only by their long-standing neoliberal beliefs, and by their role in advising both government regulators and the providers they regulate, but by the likely consequences for their own businesses that effectively addressing these issues would have.
9. We address a number of additional related worrying issues.
   1. The problems in the assessment process that are being compounded by the decision to privatise the assessment process for aged care and the inappropriate way in which computers and artificial intelligence is to be used.
   2. The limits placed on advocacy and visitor schemes over the years, the issues surrounding them, their ineffectiveness in exposing problems and the failure to address this in the new act.
   3. Limits to the protection provided to the elderly in the new act by restricting those protections and rights only to services funded by the government,
   4. The way that greater regulatory complexity being introduced is causing municipalities and smaller providers, who generally provide better care, to vacate the sector.
10. An appendix in which we summarise five other recent submissions we have made to the Department of Health Consultations. These are:
    1. Exposure draft of the Aged Care Quality and Safety Commission Amendment (Code of Conduct and Banning Orders) Rules 2022 18 October 2022 
    2. Aged Care Quality Standards Consultation 21 Nov 2022 
    3. Consultation Paper No. 2: A new model for regulating aged care June 2023
    4. Response to Consultation Paper on the Aged Care Taskforce Submission to Department of Health and Aged Care August 2023
    5. Response to Consultation Foundations of the new Aged Care Act Sept 2023

Learn more:  Aged Care Crisis’ submission1.7 MB