The new Aged Care Act is a welcome departure from its predecessor but lacks detail.
Imagine being handed a map promising to guide you through uncharted territories, only to find that key parts are missing and treacherous waters ignored or reframed as sunny climes.
This is the conundrum facing aged care providers, who must respond to the new Aged Care Act 2023 (part of the most fundamental reform of the aged care system since 1997) within a consultation period of eight weeks, much 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 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.
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 ageing population, and an aged care sector under significant strain.
It is also interesting to note the 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 raises the question of whether the system is going to be able to deliver the care required.
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’.
While there are plenty of requirements imposed on other stakeholders, one struggles to find many that 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 recognise the individual aged care consumer as a person who lives in a community and who, along with their families, has responsibilities to the broader community they live in.
That could be in the form of treating workers with respect, paying their bills or, in the case of residential care, acknowledging 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, without robust safeguards, is a recipe for disaster given the vulnerability of the Australians who will rely on these decisions.
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 (e.g. the 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 is needed to deal with issues that 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 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 ageing 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 approach at all levels.
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.
- Amber Crosthwaite is a commercial lawyer specialising in seniors living, aged care and disability
