In this article we speak with Julia Abrahams, chief counsel at Catholic Healthcare Limited and a leader in aged care law, on the challenges facing older people in Australia and what legal practitioners must do to ensure their wellbeing.
For the benefit of our international readers who may not be familiar with the term, what does 'aged care' encompass?
Aged care typically refers to the private and government-funded ageing-related supports and services that are available in Australia for persons aged over 65 years of age.
It can include supports and services for person younger than 65 years of age if they are assessed as requiring aged care. This includes persons in populations known to develop conditions of ageing at a younger age and persons who, because of significant permanent disability and lack of specialist disability accommodation, require residential care through residential aged care services.
It also includes retirement communities (independent and assisted living for persons over 55 years) and, in terms of legal practice, can include related areas such as guardianship and administration, privacy, end of life, human rights and mental health.
What is the key legislation that governs the administration of aged care in Australia?
In Australia, residential aged care and community aged care are currently governed by:
- the Aged Care Act (Cth) 1997 and the Principles under that Act; and
- the Aged Care Quality and Safety Commission Act (Cth) 2018 and the Rules under that Act.
A new Aged Care Act is expected in or around 2024.
Legislation regulating retirement communities is not regulated at the Commonwealth level. It is regulated on a state-by-state basis.
Disability is regulated under both state and Commonwealth law. The National Disability Insurance Act (Cth) 2013 and its Standards are key pieces of legislation.
In your extensive experience in the field of aged care, what are the greatest issues that the practice faces today?
The greatest issues currently impacting aged care legal practice in Australia are the speed, volume and far-reaching implications of regulatory change, largely arising as a response to the Royal Commission into Aged Care Quality and Safety which tabled its final report in September 2021.
This report, ‘Care Dignity and Respect’, followed two years of well-publicised hearings, public consultation, reports and research which highlighted deficiencies across the aged care sector and made numerous recommendations for reform. The Australian government is committed to introducing as many of these reforms as possible, as swiftly as possible.
Aged care regulatory reform also coincides with regulatory reform occurring across a number of other domains also highly relevant to aged care service provision. These include the most significant workforce reforms in the last 10 years, a dramatic increase in penalties for serious privacy breaches with further privacy/cyber reforms to come, dramatically increased penalties under the unfair contracts regime, progressive implementation of the voluntary assisted dying regimes, persistent agitation for change in human rights laws and promises of change in environmental stewardship requirements to come.
Practitioners advising aged care clients need to be aware of all these reforms and able to support aged care providers as they respond to the changes. Frequently, the need for legal advice and support is urgent.
The greatest issues currently impacting aged care legal practice in Australia are the speed, volume and far-reaching implications of regulatory change.
In some cases, these reforms, together with the impact of funding deficits and significant workforce pressures, may include assisting providers with consolidation and transformation as they rebalance their portfolios.
Recently, the Australian government has embarked on what it describes as a legislative reform of aged care. Can you tell us more about these reforms and what has been achieved to date?
Arising from the Royal Commission into Aged Care Quality and Safety, two reform Acts were passed in 2022: the Aged Care and Other Legislation Amendment (Royal Commission Response) Act (Cth) 2022 and the Aged Care Amendment (Implementing Care Reform) Act (Cth) 2022.
Reforms under these Acts that have already commenced include, but are not limited to:
- The introduction of a new funding model.
- The introduction of an Aged Care Code of Conduct and further regulation of those working in aged care.
- Changes relating to the composition of boards, regulation of key personnel of aged care providers and issues of materiality for aged care providers.
- Changes relating to the consent to restrictive practices.
- The extension of the Serious Incident Response Scheme (a scheme requiring mandatory reporting of significant incidents to the regulator).
- The capping and tightening of home care fees.
- The introduction of quarterly reporting of star ratings of aged care services.
- The introduction of an Independent Health and Aged Care Pricing Authority.
- The creation of an Independent Commissioner of Aged Care, a precursor to a permanent Commissioner and function.
- Extension of some prudential compliance requirements.
Reforms under these Acts to commence in 2023 and 2024 include, but are not limited to:
- The introduction of a requirement for a registered nurse to be on duty in residential aged care homes 24/7.
- The introduction of a mandatory 200 care minutes per resident per day. This requirement is dependent on the size of the residential aged care home. This requirement is to increase to 215 minutes in 2024.
- The increase of the consumer and the on-the-ground clinical care voice in governance via the introduction of Quality Care Advisory Bodies and Consumer Advisory Bodies.
- Provision of monthly care statements to better inform consumers about their care.
- New aged care quality standards.
- Radical transformation of the approach to home and community service provision.
- An Aged Care Complaints Commission
- A new Aged Care Act.
What are your hopes for the future of aged care in Australia?
My greatest hope is that Australian aged care can be a place where all older persons are provided with quality care and services and treated with profound dignity and respect.
Consumers of aged care are our mothers, fathers, aunts, uncles, and grandparents. They are also us in years to come. They deserve our best.
How can individual care practitioners and firms help to shape positive change?
First and foremost, aged care clients require accurate, timely, insightful and helpful legal advice and supports. This requires up-to-date knowledge of the law and the provision of helpful advice and support that takes the realities of aged care service provision into account.
Some of these realities include workforce shortages and transience, costs’ increases and funding shortfalls, increase in regulation and regulatory scrutiny and penalties, increased focus on privacy and cyber, impact of severe weather events and pandemics, crisis response and management, and transformation and consolidation of the aged care sector.
My greatest hope is that Australian aged care can be a place where all older persons are provided with quality care and services and treated with profound dignity and respect.
Next, many providers need legal advice and supports that they can afford; many providers are small- or medium-sized with limited resources.
Legal practitioners can also assist by providing alerts about legislative and regulatory changes and by working with providers, peak bodies and regulators in relation to profound legislative and regulatory change and change across the sector.
Julia Abrahams, Chief Counsel
Suite 1, Level 5, 15 Talavera Road, Macquarie Park, NSW 2113, Australia
Tel: +62 02 8876 2125
Julia Abrahams has served as the chief counsel of Catholic Healthcare Limited for more than 20 years. She has also served for a term on the advisory board of the School of Law, Sydney campus, of the University of Notre Dame Australia and was recently named one of the top 12 In-house counsel in the Health and Aged Care category in Australia in the Doyle’s list. In 2022, she received Lawyer Monthly’s Aged Care Law Counsel of the Year award.
Catholic Healthcare Limited is a for-purpose provider of residential aged care services, community aged care services and retirement communities. The organisation’s staff of almost 4,000 also support aged care residents who participate in the National Disability Scheme, older persons who are homeless or at risk of homelessness and older persons who live in conditions of severe hoarding and squalor. Catholic Healthcare’s services are provided from over 60 sites across New South Wales and South East Queensland.
