A legal perspective aged care

By 31 October 2017Uncategorized

This is a general comment about the current state of information available to intending residents and their families and supporters in the aged care system in Australia. I have been moved to think about these issues by the campaign which has begun on the Aged care crisis website.

There is much which is lacking in the system and which is very important to intending residents to know about. Also there is an unsatisfactory system of complaints which also lacks some of the important elements of an open information system so important to consumers of these services. – Rodney Lewis, Solicitor

Transparency, accountability and disclosure under the Australian aged care system – some comments

So what do I mean by these terms, transparency, disclosure and accountability? Here are my definitions which I think are applicable to the context of aged care.

Transparency is an important tool in helping outsiders understand how a system or an organisation works. That is, the rules by which they are governed and how they are expected to operate. In a democracy there are laws available for all to discover and read on how government and its agencies must conduct their affairs. Companies likewise are governed by organisational rules and by law. These are also open to public scrutiny. In Australia, they are the company constitution and the Corporations Act 2001.

Accountability is the process by which organizations are judged when they fail to conform to their obligations. Governments are accountable to Parliament and to the people, at an election. Companies are accountable to the official company regulators, to its shareholders and to the general community through laws such as environment, work safety and so on. In serious breaches the law requires penalties, including fines and even imprisonment for serious offenders. That is what is generally understood by being ‘accountable’.

Disclosure is an important foundation for and a tool to implement transparency. In a company for example, disclosure is mandated for annual reports to shareholders. In a publicly listed company disclosure is driven by public interest and the right to know on the part of intending or potential investors and there is an obligation to keep the public informed continually, by publishing market sensitive information.


Lets have a look at the aged care industry. The Commonwealth Aged Care Act 1997 and its accompanying Principlesare assumed to form the entire body of rules which apply to it. This is not so however, because State and Territory law also applies to such important matters as, for example, food preparation through to regulation of health care professionals (nurses, physiotherapists, doctors).

In a sense there is transparency because of the easy access to the aged care laws which are the main rules applying to the industry. The Principles also allow access at all times to the aged care service by the resident’s representative. The resident has access to her/his records. There is more serious concern however about the stage at which a person (an intending resident) is considering entry into and choosing a residential aged care home (RACH) and also when there is a complaint by a resident.

Consider the position of an intending resident. They or their family supporters are about to enter a lifetime commitment for care and accommodation. To make that kind of commitment and choice requires ample and reliable information to enable proper assessment and comparisons. However, at this time in the development of the system in Australia, that kind and quality of information is absent.

There are (currently) three official websites available to those who are computer literate, with information on making a decision about where to make that lifetime commitment. They are the Aged Care Australia website; the Aged Care Standards and Accreditation Agency (ACSAA) website and the Department oHealth and Ageing (DOHA) website.

What do each of these official websites tell us?

The Aged Care Home Finder feature on the Aged Care Australia website assists in the selection of a RACH on a geographical basis. Information provided includes the number of high/low care places in each home, whether or not it is certified and the aged care provider accredited under the law, and whether there are sanctions or notices of non-compliance, but no indication that the breaches are current or historical or both.

In both cases the stated advice is for the inquirer to make further investigations and satisfy themselves. This presumably means asking the aged care provider directly. This is just like buying a second hand car…”caveat emptor” or “buyer beware”!

The ACSAA website responds to inquiries for particular establishments and provides reports on inquirer nominated RACHs. Intending residents are entitled to rely upon them. Accreditation reports are published. The bulk of the reports published are a result of the cyclical three yearly Site Accreditation audits. No references appear on this website to sanctions and notices except that if there are any such, and an accreditation report has been done in the meantime, reference is made in the report.

The currency of these reports can be seen in the table below, and it can clearly be seen that this is simply not good enough:

*Source: information sourced as at 10 March 2010 – Aged Care Standards and Accreditation Agency

Facility name State Report date
(most current published)
Report age
 Abbey Gardens QLD 1 Oct 2007 891
 Bellhaven Aged Care Facility NSW 17 Apr 2007 1,058
 Bethsalem Care SA 6 Jun 2007 1,008
 Bupa Dural NSW 27 Mar 2007 1,079
 Christies Beach Residential Care Service SA 17 May 2007 1,028
 City of Bayswater Hostel WA 27 Mar 2007 1,079
 Corumbene Hostel TAS 30 Jan 2007 1,135
 Eventide Homes (Stawell) Inc VIC 19 Jun 2007 995
 Goodhew Gardens NSW 13 Feb 2007 1,121
 Margaret Hubery House WA 11 Jul 2007 973
 Miroma Residential Care Facility SA 2 May 2007 1,043
 Noble Gardens Residential Aged Care VIC 12 Jun 2007 1,002
 Raynbird Place QLD 31 May 2007 1,014
 Regis Corinya QLD 24 Jul 2007 960
 San Carlo Homes for the Aged VIC 3 Sep 2007 919
 Uniting Aged Care – Aldersgate Village TAS 10 Jul 2007 974

In one random case which I have looked at, the DOHA website disclosed a current set of sanctions. However the ACSAA website report included only the most recent accreditation report, which happened to be dated in the middle of the six month term of sanctions for three apparently serious breaches of standards including health and personal care.

The accreditation report devotes two lines in a 28 page report in which it is stated “the Agency has considered the Home’s recent history of non-compliance and the actions taken…to address (them)”. Since that amount of information is risible and only barely enough to put a reader upon notice, could it be that the vital missing information is available on the Departmental website for this RACH?

The DOHA website provides information on sanctions and notices of non-compliance. This is only right and proper because it is DOHA which issues them (although that is no reason for the ACSAA not to carry the information). If we look at the same RACH as noted above on the ACSAA website, we find that with the details of the Provider are given the “reasons for sanction”. These ‘reasons’ are barely reasons at all, but rather they are references to a ‘serious risk‘ of breach of particular Standards including Management systems, staffing and organisational development” and “Health and personal care“.

These ‘reasons’ could be as trivial as a nurse discovered smoking on duty (‘staffing’), to a failure of proper nursing care leading to serious infection, or perhaps unbearable pain for a resident (‘Health & personal care’). The point is, we are not told. Once again the onus is on the intending resident to make further inquiries and the official regulator of the industry has failed to provide essential information on which to base the decision of choice.

This lack of information and transparency at the critical stage of entry into residential care is matched in some ways by its absence in the complaints handling scheme.

The DOHA website contains the following statement:

“The information, complaint or concern may be about anything regarding the care and services provided to aged care recipients. For example care, catering, financial matters, hygiene, equipment, security, activities, choice, comfort and safety”

(see http://www.health.gov.au/internet/main/publishing.nsf/Content/ageing-complaints-index.htm).

Note that the list does not include health care. It is carefully and deliberately omitted, but the omission is not disclosed.

This is because the Provider is not obliged to provide health care except on the advice and at the direction of the treating health professional. The nursing staff provide health care in accordance with the treatment plan developed in consultation with the resident’s doctor. Accordingly, contrary to all expectations, the CIS will not investigate any complaint about negligent medical treatment. This has come as a shock to some complainants.

The much promoted and well resourced Complaints Investigation Scheme (formerly described as the Complaints Resolution Scheme – resolution being presumably a faint hope in some cases) has many flaws and shortcomings which are not part of or featured in the promotional material which is sponsored by DOHA. These all have a bearing on transparency for the complainant who enters the scheme with unwarranted expectations of results for the individual . These shortcomings include the following:

(i) There is an insufficient flexibility in the system to cope with serious complaints of individuals. For example, there is no power to make orders to do or to cease doing things which affect the resident, and no compensation for loss, damage, pain and suffering.
Yes, there are notices of non-compliance and sanctions at the end of which the Provider may lose its licence, but nowhere in that process is there any satisfaction for an individual complainant;
(ii) There is a bewildering array of administrative appeals (Aged Care Commissioner, Ombudsman, Administrative Appeals Tribunal) but they are only able to deliver results confined by the CIS Scheme itself, which addresses systemic fault and dysfunctional processes, not individual satisfaction;
(iii) There is an inability to address actively and satisfactorily complaints about medical carelessness and negligence springing from the actions or omissions of health professionals (see above). There appears to me to be an unannounced dividing line beyond which the CIS will not trespass into matters of professional misconduct, indiscipline and negligence. This is a line drawn by the Constitution but which is by no means an insurmountable barrier to policymakers if they are paying proper attention to the needs of residents first.


Lets again look at a couple of areas where accountability is lacking. The first is in accommodation bonds.

When an accommodation bond is taken by a Provider, the Provider is obliged to issue a ‘guarantee’ to the resident, to the effect of confirming intention to repay. As I have written before, this is merely a second promise to pay, since the guarantor in this instance is the Commonwealth of Australia and its taxpayers.

The Australian government by legislation has committed itself to reimburse residents who have paid bonds and have not, or their representatives have not been repaid. The government will seek repayment from the Provider but if the company has been liquidated, and there are no other causes of action against others, such as directors of the company , it will be the taxpayer who pays. The government is then entitled to recover its loss through a levy upon other Providers. Until now no levy has been made, and perhaps there has been no need for one. However, it is likely in my view that some Providers have invested in financial securities which have been devalued or lost in the recent financial crisis. Those losses have yet to come to attention – or have they?

In October 2008 a register of “Homes of Concern” was established by the DOHA. That coincided with the height of the global financial crisis. One may fairly wonder on the grounds of lack of transparency and disclosure whether those “Homes of Concern” appear on any of the websites referred to above, and whether or not they ought to do so. It is precisely because of the lack of transparency that observers of the industry are unable to say.

The second area where accountability is lacking is in the matter of consequences for serious breach. The Aged Care Act 1997 is notable among Commonwealth Acts of Parliament for the absence of any criminal penalties, whether fines or imprisonment, for egregious breach. Such a breach might involve gross misconduct, avoidance or even concealment of acts or omissions, in non-compliance with the Principles, or the Act. There are no mechanisms established, for example a Tribunal which has power and authority, for the claiming of damages, or other orders which might be helpful to a resident who has been injured or has suffered loss or damage in a residential aged care home – high or low care. It is time these issues were addressed. If anyone is in any doubt, have a look at the sad case recently brought to my notice.


In New South Wales there is a requirement to make information available in a formal disclosure statement to a person intending to enter into a retirement village contract. These statements include information on management, legal compliance, services, financial issues and previous breaches of the relevant law. There is no similar requirement in the aged care law and it is left to the individual intending resident or their family and carers to make their own inquiries. However they can only do so by looking at the websites which we have already briefly reviewed. They are for internet computer and English speaking literate people.

To improve the level of disclosure the aged care system requires a carefully designed disclosure statement which not only includes references to breaches but also some reasonably informative details rather than generalities to enable a reasonable understanding of them and thus an informed choice.

They might include details of breaches leading to notices of non-compliance or sanctions which enable an intending resident to discover in respect of each incident over the past three years –

  • What were the circumstances of the breach?
  • What were the consequences of the breach for the resident?
  • What conciliation or mediation has taken place and with what result?
  • If there was injury or damage to the resident what arrangements for compensation or resident satisfaction have been made?
  • Have there been complaints of a serious nature capable of provoking a notice of non-compliance(NNC), sanction, or a breach of the aged care provider’s responsibilities under the Aged Care Act 1997 which have not been disclosed or reported but have been resolved with the resident or her/his representative?

This last point in the list (above) would cover the situation which apparently has occurred in the case referred to earlier in the article but as a result of which, although leading to a death, no public disclosure of the breaches or events occuring in this facility have apparently been made.

It is still possible for a home to breach their responsibilities as an approved provider, as well as having serious complaints substantiated against the facility, and avoid any public scrutiny whatsoever.

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