Imagine being handed a map promising to guide you through uncharted territories, only to find that key parts are missing and that treacherous waters had been ignored or re-framed as sunny climes.
This is the conundrum facing aged care providers who must respond to the new Aged Care Act, part of the most fundamental reform of the aged care system since 1997, within a vanishingly small consultation period of eight weeks (most of which straddled the Christmas/New Year break).
The Good News First. The exposure draft of the new Act suggests a welcome departure from its predecessor (which was conceived more as a funding manual than a consumer-focused framework). It is relatively well-drafted and its rights-based premise is not just a facelift but a foundational change.
However, let’s not get too carried away. For all the talk about ‘rights’, this is not the NDIS and our elderly Australians will not have the right to ‘reasonable and necessary’ supports to help them to age with dignity and as much choice and independence as possible. That is, the new Act is not an all-access pass to the aged care system but rather a token for a rationed system where the government still holds the reins on determining care levels and funding.
Now, here we see a tightrope walk between ambition and fiscal prudence. Indeed, rationing may be a pragmatic response to lessons learned from the financial challenges posed by the NDIS, the growing costs of an aging population and an aged care sector that is under significant strain. It is also interesting to note that the new Act explicitly introduces the concept of a user-pays system ‘for those individuals who have the financial means to do so’. However, an Act guaranteeing each older person the right to be ‘assessed’ for supports but not the right to receive the ‘required level’ of supports? This does beg the question of whether the system is going to be able to deliver the care our elders will actually need.
Sadly, the Act's progressive spirit is also tempered by its reluctance to hold the Department of Health and Ageing accountable for delivering on its own role as ‘System Governor’. Whilst there are plenty of requirements imposed on other stakeholders, one struggles to find many which would be enforceable against the Department.
The Act also misses the opportunity to address the long-standing conflicts with other laws, such as work health and safety laws and state guardianship laws. Further, like its predecessor, it fails to see the individual aged care consumer as a person who lives in a community and who, along with their families, also have responsibilities to the broader community they live in – whether that be to treat workers with respect, to pay their bills or, in the case of residential care, to acknowledge that they live in a congregate setting where their fellow residents also have rights.
The Act's recognition of automated decisions around assessments and prioritisation, sans robust safeguards, is a recipe for disaster given the vulnerability of the Australians who will rely on these decisions, particularly those in crisis (as new aged care entrants so often are). It is extraordinary that no safeguards are provided in a post-Robodebt world.
Of significant concern to me is the brief public consultation period and the lack of detail around key parts of the framework (eg. the pressing question of how aged care supports will be paid for). This raises real questions about the level of meaningful engagement that is going to be achieved during the consultation period and, in turn, the sector’s preparedness for such a transformative change. It also suggests a rewrite in fairly short-order to deal with issues which should have been foreseen prior to the Act’s implementation.
Finally, we must not forget the real prize in the response to the rapid population ageing that is now upon us. That is, an Australia where the focus shifts from crisis management to prevention. By prioritising primary care and prevention, we have the power to reshape the future of aging in Australia, ensuring a life of dignity and independence for our seniors. This, of course, is not the job of the new Aged Care Act and requires a ‘whole of government’ at all levels of government approach. However, we must not lose sight of it in the rush to implement the upcoming reform.
This opinion has been submitted to the Department of Health and Aged Care as part of the public consultation process on the new Act.
This article first appeared in Amber Crosthwaite's article for Business News Magazine on 23rd of February 2024.
