I recently chaired an afternoon session for a “Law in Aged Care” seminar in Perth.  It was a very useful day’s focus on the myriad of interaction that aged care providers have with the law daily.  There can be matters associated with town planning, local government, occupational health and safety, fair work, accreditation and liability issues, and that might be just before morning tea …

In October 2017, the residential aged care sector reaches twenty years since the enactment of the Aged Care Act 1997 (Cth).  As I recall, for Western Australians it started on Monday 1 October being a public holiday Monday.  The then new Act was a mighty and useful change from the Aged and Disabled Persons Homes Act and the Health Act.  Whilst it has not all been plain sailing the Act pertaining specifically to aged care has, in my view, served Australia well.

But after twenty years it is not so much serving aged care providers as much as it might be serving the Commonwealth.  Aged care providers surely have a right to run their businesses fairly and equitably with their Commonwealth partner.  All providers are equal under the Act and most providers do work out their responsibilities well, with good intent to serve those who amongst Australia’s frailest, dependent, and most deserving people.  There are some aspects of the legislation and regulation that make it almost impossible for providers to do fulfill their responsibilities to all stakeholders and beneficiaries all of the time.

Take the matter of security of tenure.  Residents contract with providers to pay for, and receive care and accommodation that meets their assessed needs.  And mostly it works well.  But what if the circumstances of residents’ change, or are not advised to providers upon admission?  Who takes the responsibility?  I know of two recent examples around this matter that have ended with the provider continuing to be responsible for their residents in circumstances, as sad and difficult as they are, with the obligation to continue to care but not being able to secure any additional funding to ensure that they can care for all equally safely.

In one instance a male resident who, not until after admission to care, was identified as a previous sex offender, was witnessed assaulting a cognitively impaired female resident.  He was convicted for assault but not jailed. The facility was unable to have him relocated to another provider because of the security of tenure provisions and so had to provide a higher level of surveillance to protect the female residents.  In a second instance, a person admitted into care but with an unreported, underlying, mental illness began to harass and bully other residents.  The behaviour worsened over a twelve-month period.  Due to the location of the facility the provider was advised (instructed) to “continue to manage behaviour on the site” because no local appropriate alternative service could be found.  Again, no additional funding was made available to the service provider.

In both instances, all other residents are at risk of harm in such circumstances.  In both instances, it is the service provider who is left with the resident, and carrying the responsibility of safety, health, and well-being of the majority, often without any additional funding support.  The provider also carries the burden of care for the inappropriately placed resident, for whom the security of tenure is an inappropriate regulatory barrier.  We all know why the regulation is there but sometimes the law really is an …

I suspect many providers know of more seeming anomalous interpretations of regulation in the application of the Aged Care Act.  Given the forthcoming legislative birthday celebration, perhaps it’s time to undertake a root and branch review of the Act to refresh and remove such inequitable anomalies.  If we are truly heading to a client centred care basis of operation, it really does have to work both ways.

This was originally published on Wayne Belcher’s Blog

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