The Council on the Ageing has praise for the Act but says there is more improvement possible in matters of choice, control and transparency.
The new Aged Care Act must ensure the rights of the elderly are enforceable, facilitate autonomy and be enacted as soon as possible says the Council on the Ageing, in its response to the DoHAC’s draft consultation.
On 14 December, DoHAC opened a public consultation into their new exposure draft of the Aged Care Act, a follow-on from an earlier consultation last August into the foundations of the new Act.
The new exposure draft, which “includes the parts of the Bill that incorporate the most significant changes proposed to the aged care system” incorporates recommendations from the Aged Care Royal Commission’s report published in 2021.
While COTA praised the new exposure draft for incorporating 29 recommendations from its submission into the foundations of the Act, it added that the draft didn’t “go far enough to deliver choice and control, transparency, an effective complaints process and enforceability of rights”.
“The Aged Care Royal Commission recognised that the design of the current aged care system meant older people and their families had limited power compared to providers and regulators,” said COTA in a statement.
But the new “ground-breaking” legislation proposes “a more transparent rights-based approach to aged care, with stronger regulatory powers to correct the power imbalance”, added COTA.
COTA’s submission, in collaboration with the Older Persons Advocacy Network and 10 other older people and carer organisations, runs to 28 pages outlining its “key issues” with the exposure draft.
Number one on the list? A call for the new Aged Care Act to be implemented ASAP.
“It has been five years since the Royal Commission began and three years since it delivered its landmark report recommending the creation of a new rights-based Aged Care Act,” the paper reads.
“Older people shouldn’t have to wait any longer for their rights to be respected in aged care.”
The paper calls for the Act to commence on 1 July and be reviewed every three years. It suggests that the Bill be introduced into parliament in March to enable a three-month review by parliament.
The paper also calls for the Act to “take a human rights-based approach with a focus on wellbeing, reablement and quality of life” and to ensure that the Act’s statement of rights is directly enforceable.
“Aged care providers must have a requirement or positive duty to uphold rights,” the paper notes.
“There is an obligation on the aged care system to provide services to all older people.”
Older people must have a pathway to complain about aged care services when their rights are not upheld, adds the paper.
“A system that largely relies on individuals to raise a complaint is inherently problematic, as a result of the power differentials between the older person and the provider,” says the paper.
“One way to address the power imbalance is to ensure breaches of rights have consequences.”
COTA and its partners praised the exposure draft’s recognition of the decision-making capabilities of older adults and of the use of supported decision making where relevant.
But limitations proposed in the Bill, such as an inability to have both a supporter (to help them obtain and understand information) and a representative (to assist the older person or make decisions in line with their will and preferences when they can’t) at the same time, should be amended.
COTA also called for greater transparency of aged care providers and governments.
“On an initial read we are pleased to see greater transparency in the Bill, that will give permission for more information to be publicly available,” reads the paper.
“However, some clauses are unclear and appear to leave it up to a decision-maker as to whether the information will be made public.”
The paper asked that the relevant clauses in the Act be clarified to ensure information is publicised.
A detailed outline of all issues and recommendations can be found here.
Despite totalling 28 pages, there will be more to come, said COTA.
“[The paper] is not designed to be an exhaustive list and there will be other issues that arise based on the feedback of older people, carers and stakeholders,” said COTA.
“A final analysis of the Bill will be outlined in our older people and carer organisations joint submission in February 2024.”
The public consultation into the Act is due to close 16 February.
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