The complaints system has been structured so that information is opaque and that a lid can be kept on exposures. In 2009, Professor Walton carried out a review to which both Aged Care Crisis and I made submissions. Professor Walton’s scathing review of the department's performance confirmed our own observations. Walton recommended that complaints be handled by an independent agency. This did not happen.

The sliders below look at what went wrong, what can be done about it and what the objectives should be:

Problems with Walton's recommendations

One of Walton's major criticisms was an excessive legalism and the need for a process of conciliation and resolution as well as remediation. I had stressed in my submission that the process should be based locally and that a community structure and a suitably-trained local person should be investigator, mediator and, when required, initiate a formal departmental investigation.

Unfortunately, Walton's recommendation that local mediation between the complainant and the provider be the first step was fatally flawed because there was no knowledgeable mediator to advise and help the vulnerable complainant, who would be justifiably concerned that the staff would respond by targeting their loved one in the facility.

Professor Walton's proposal was throwing vulnerable people into the lion's den.

As a consequence, many feel that the changes following her review have made the new system, based on the recommendations, even worse that the old one it replaced.

Families are frightened to complain and when they do they are too often talked down to. As a result, there have been fewer complaints, which the department looks on as a measure of success.

Aged Care Crisis again highlighted their concerns regarding inadequate protections for vulnerable people in care at the Community Affairs References Committee - Care and management of younger and older Australians living with dementia and behavioural and psychiatric symptoms of dementia (14 Feb 2014):

"... We feel that successive reviews and inquiries have ignored the logic of various submissions and cherry-picked items that have then been incorporated into policy and practice, adversely influencing the way in which the aged-care system operates.

An example of this is the way in which the review of the Aged Care Complaints Investigation Scheme, the Walton review back in 2009-10, virtually destroyed the utility of the whole complaints system by embracing our recommendation to place more focus on local resolution, but critically ignored supporting information on the logic behind this and the essential linked recommendation that the complainant should be supported and advised by a trained local facilitator with investigative powers.

Not surprisingly, this unequal barrier - in which there is a gross imbalance in power, where victimisation is possible - has proved to be an effective barrier to lodging a complaint as well as resolution, leaving the disaffected even more disillusioned ..."

Source: Quote from Ms Saltarelli from Aged Care Crisis to Senate Community Affairs References Committee - 14 Feb 2014

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The proposal

Community Complaints Officer: The first port of call for families, residents and nursing staff, who are concerned about standards of care, should be the community hub and more specifically the surveillance staff, who would need training in evaluating complaints and in mediating them. While surveillance staff should all be able to do this when needed, one person would generally be the main complaints officer.

Confidentiality: Confidentiality would be guaranteed if the person complaining desired it. Family and nursing sources would become key sources of information for the surveillance staff, prompting them to observe and check to see if there were problems and whether they were isolated or systemic. When it was not requested or not possible to hide the identity of informants, then it would be the responsibility of these staff and the hub’s committee to watch over residents. It is essential to ensure that residents are not targeted and that staff who supply information are not penalized or their careers adversely impacted. If this occurred the facility should be severely sanctioned. There have been many complaints about this.

First step: The first step when information is provided or a serious complaint is made would be to secure records. The complaints officer would take copies of the records to ensure their integrity and then make preliminary enquiries among staff and residents to see what actually happened. If there was any non-compliance in this then a departmental investigation would automatically follow.

Mediation and resolution: The complaints officer would then discuss the issues with the complainant and proceed to mediation and resolution. In negotiations with the provider the complaints officer would support, advise and, if the complaint was soundly based, represent the person complaining. They would monitor remediation and verify to the complainant when remedial action had been taken.

Compensation: If damage has been sustained they would advise the complainant of their right to seek recompense. Complaints would be discussed with their mentor in the department and with the chairperson of the hub. Where there are failures that might warrant sanctions then a formal departmental investigation would be mounted.

Keeping track: Failures in care and breeches of process will inevitably occur sometimes in all homes. These should be recorded and included in the assessment of standards. If the infringements are minor and no harm has resulted then the initial approach should be to assist management by advising them and asking them to address the issue. Generally the chairperson would take this up with management. Further action would be taken if there were multiple problems or remediation did not result. The initial approach should always be constructive and helpful.

Complaints structure: In spite of multiple changes since 1997, the current complaints system has been a failure and no one is happy with it. Policy for 2015 is to place most if not all of the onus on providers to resolve the complaints by residents. Complaints made to the current government complaints system by residents and staff will be referred back to providers to resolve. This will simply increase the problems created by the power imbalance and is a retrograde step. Too often providers first step, when there has been a failure in care is to bring in their legal team to protect their interests. The legal advice given can direct them to protect their own interests and ignore their social responsibilities to the more vulnerable.

A major recommendation of the 2009 Walton review was that the complaints system be made the responsibility of an independent body. That did not happen. Instead government in 2015 is handing the investigation of complaints over to the providers and distancing themselves.

In the proposed hub the government remains the regulator and as such would be made aware of any complaints and should monitor effective remediation by working through the hub. But it must be remembered that when there has been a mishap causing harm, most complainants primary concern is that others should not suffer a similar fate. The complainant should be involved with the hub in ensuring effective remediation so that their concerns are resolved.

Government has failed badly when it comes to the resolution of complaints and some other mechanism is required for this. The court system is too costly and carries too much financial risk to be effective in resolving most issues. It clearly remains the final resource for any dispute, particularly when there are broad issues with precedents that need to be set. Some form of less onerous resolution is required for the majority of cases.

One of the roles of the local and central sections of the proposed hub would be to review the contracts between resident and provider to ensure that the interests of residents and their families are protected. This would very probably include the creation of a system of independent arbitration and restitution. Most issues would be fairly resolved with both parties on an equal footing, and without the need for costly and stressful litigation. This would be in keeping with the spirit of Walton's 2009 recommendation for independence, and the hub would address the problems in her other recommendations.

The government announced at the end of May 2015  that in 2016 the complaint system would be moved from the Department of Social services and would now be run by the Aged Care Commissioner, who would be funded to do this.  They claim that this would be the independence Walton recommended.  Details have not been revealed but the hub could certainly work with the commissioner.

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The objectives

All complaints would be recorded and their relevance assessed. While mediation and resolution would be important objectives, these should not be at the expense of thorough investigations, remediation, natural justice, sanctions and compensation for those who suffer due to provider or staff negligence.

The current power imbalance between the residents and their families on the one hand and the providers on the other must be addressed. As suggested above the most sensible solution might be to leave regulation and remediation to government and the hub, but create a separate arbitration and restitution process to which both parties agree long before disputes arise.

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We would love to hear your thoughts on the direction aged care should take in order to make life worth living and working in Australian nursing homes: Join our conversation  Author: Dr. Michael Wynne, Copyright 2015