The disturbing findings of the Aged Care Royal Commission and its recommendations outline a clear case for root and branch systemic reform. Morry Bailes explains the legal changes needed.
If there was ever a clear-cut case for law reform, it would be in Australia’s aged care sector.
Now that the final report of the Aged Care Royal Commission has been published, it is more apparent than ever that there is an inordinate amount of work to be done.
Lawyers who work with older people in an area of the law we describe as elder law – providing advice to clients not only about their testamentary arrangements but in relation to aged care choices – are well aware of the vulnerability experienced by many elderly Australians.
The number of people that will require aged care in Australia is expected to increase from 500,000 to 1.5m by about the middle of the century. As life expectancy increases, there are many more examples of older people suffering from a range of morbidities including dementia.
Elder abuse at the hands of friends, relatives and family, in a variety of forms both subtle and overt, is something that lawyers practising in the area know very well. It is well known that friends and relatives can filch from the elderly people who may be in their care, but there can also be physical mistreatment against which many elderly people are defenceless.
The final report of the Aged Care Royal Commission is broken down into an analysis of aged care as it is now, and then what the foundations of a new aged care system should look like.
The summary of the current problems make for concerning reading. There are problems in just about every area. Access to care is a problem, particularly given that the majority of care is actually dispensed in people’s homes. Navigability of the system is difficult. Disadvantaged groups in society are even more disadvantaged when it comes to trying to access care. Interoperability between dealing with the aged care system and other government agencies, such as the NDIS, can be a nightmare.
There is abuse metered out in various forms, complex cases, say those involving dementia are often inadequately cared for. People suffer nutritional problems, dental problems, skincare problems and there exists a failure to properly care for those with incontinence. In over 30% of cases, care was substandard. Moreover there is clear evidence of the over use of physical and chemical restraint.
Government facilities are better than not-for-profits and for-profit aged care homes. There is a finding of insufficient government intervention in the sector, which has largely been allowed to manage and develop responses on its own. The ‘system is understaffed and workforce underpaid and undertrained’. There is inadequate health care, and a lack of transparency making it difficult for users of aged care in Australia to make meaningful choices.
Unfortunately, when it comes to how to address the problem there is a difference of opinion between the two Commissioners as to how repair of the system should be funded. However what is crystal clear from reading the report, and in spite of the fact that we frequently overcomplicate and overregulate in Australia, is that this is one area where law reform is urgently called for.
This is not merely a problem of funding, but an impending train wreck that requires intervention by governments to reinvent the system from ground up in order to provide clarity and protection for elderly Australians and family members attempting to look after their health and welfare.
What we have at the moment are aged care providers doing in the main their very best, but with holes in a system too big to fill without government action.
What then needs to change? According to the final report the very first issue to recognise is that we require a rights-based approach. That is to say, to legislate that vulnerable elderly people have a clear, recognisable and workable set of rights.
In family law, it has been children’s’ rights that have been put first and foremost since 1975. In the same way elderly people must have their rights placed first in the aged care system. It is the high water mark against which everything must be evaluated. Once that principle is established, the rest of our aged care system must be designed around it.
The second plank to reform is governance of our aged care system. Although the Commissioners again cannot seem to agree on precisely what form that governance should take—government led or independent of government—it is clear that there is agreement over the fact that proper and adequate governance of the system is imperative.
In the same way that other industries are regulated, such as banking and finance, there is a requirement for aged care to have governance addressing systems, quality, prudential necessities and pricing. The current lack of quality in the system must be addressed by introducing an ability to measure and report on outcomes. In other words, our governance systems must be based on reaching the standard we require for elderly people, and our institutions must be able to be measured and held to account. At present, we are all over the shop, and it is showing.
We must introduce an entitlement to care, with a system that puts people first, applying to all aspects of the aged care system from respite through to residential care.
Now and again an industry in Australia needs to be improved not by nips and tucks, not by tinkering, but by wholesale reform. Law is the starting point for such reform. It’s a big job, but something both our federal and state governments must tackle together. The dignity and respect of so many Australians is on the line, and there is no entity other than governments that have any chance of bringing about the type of reform and law reform that is required in this area.
The Commissioners single out Aboriginal and Torres Straight Islander people and those in regional, rural and remote Australia for particular comment. It is timely to remind ourselves that something like 30% of Australians do not live in a major city. There are over seven million of us who need to be looked after outside of our cities. The bush and those in regional and remote areas are often overlooked when it comes to city-centric law reform. They cannot be overlooked in this instance.
As medical and dental care is so hopelessly inadequate in our current aged care system, that element needs to be turned on its head according to the final report. It is simply not good enough, and constitutes a national shame, that elderly people should be suffering the levels of inadequate medical and dental care that many are currently enduring. Levels of depression are disturbingly high – entirely unsurprising given the conditions in which some older people live. All that one must do is to live the experience of trying to navigate our aged care system, and you know this to be true. Our aged care providers might be in the main doing their best, but it is woefully inadequate without the muscle of government behind the problem.
Before us is an intergenerational opportunity to entirely change our approach to aged care in this country. The Australian government must be very clear sighted as it commences the enormous task of righting our aged care system. It is certainly not responsible for what we currently have. This problem has built-up over many generations. But with the final report in its hands, it is this government that is responsible for commencing the fix.
Some have suggested that the lack of agreement between the two Commissioners who undertook the two year task of this Royal Commission, will offer an opportunity for governments to prevaricate and avoid meeting the problems head on. I disagree. A reading of the final report leaves one in no doubt about what has to happen. Disagreements about whether this should be government led or led by independent regulatory agencies, as well as how it should be funded are big policy issues that governments must address.
However, the recommendations are clear. Only root and branch law reform, adopting the principles set out by the Commissioners of a comprehensive statement of rights, of a people-centric approach, and an insistence on transparency and quality, will bring about the extent of the reform required.
We, every one of us, has a stake in this game, because we are all without exception going to age, and many of us will need care of some nature. This is a challenge that we cannot refuse and that we must embrace as a nation, because investment in the care of older Australians will be the litmus test of whether we are up to it as a country and as a community, or whether we will collectively fail ourselves. We need to give our governments, irrespective of their political persuasion, nowhere to go but to introduce thorough and comprehensive law reform that is so required in the sector.
Governments have just been handed the blueprint. We must together ask of them whether they are up to the challenge. Just as we value our universal healthcare, we must elevate aged care to a similar level, because we are all going to get there some day. That is not to rule out means testing, but rather to encourage the creation of an aged care system that will be regarded as the envy of other countries, on a par with the excellence we have created as a nation in other critical service areas, such as our universal healthcare.
In the words of Ehsan Sehgal, ‘before you become elderly, learn how to care, respect, and love elder-ones since you will be that one there upon and ultimately’.
Put frankly, we not only owe it to others, we owe it to ourselves.
Published by INDAILY 04/03/2021. Morry Bailes is Senior Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.