24/7 RNs, mandatory minimum staffing levels, ratios and allied health, a register and Code of Conduct for care workers: Senior Counsel proposes 10 recommendations for reforms of residential aged care workforce reforms

Published on

Senior Counsel Assisting Peter Rozen QC (pictured above) has laid out the Counsel Assisting team’s findings from the submissions and evidence presented at the Melbourne workforce hearings in October, putting forward 10 recommendations on the residential aged care workforce to the Commissioners.

You can read the full submission here.

Speaking for just over two hours from the Counsel Assisting team’s 160-page workforce submission, the Senior Counsel detailed a series of reforms that they believe the Commissioners should implement:


An approved provider of a residential aged care facility should be required by law to have a minimum ratio of care staff to residents working at all times. The ratio should be set at the level that is necessary to provide high quality and safe care to the residents in its facility and should be based on the following:

  • It must be sufficient to achieve a 4-star rating under the current CMS staffing star rating as adjusted for Australian conditions.
  • Average case-mixed total care minutes of between 186 and 265 minutes per resident per day from a trained workforce comprising nurses (including registered and enrolled nurses), and personal care workers.
  • A minimum of 30 minutes of registered nurse care time per resident per day.
  • In addition, at least 22 minutes of allied health care per resident per day.
  • That there is a registered nurse (RN) present on each shift and available to direct or provide care subject to limited exceptions.


All approved providers must provide the Department with quarterly staffing levels for registered and enrolled nurses, allied health and other care staff by shift in residential care.

The Department must publish this information at a service level. There needs to be clear explanatory material for older people and their families and carers to access to enable them to understand the published information and compare services.


The Medical Deans of Australia, in conjunction with the Australian Medical Council, the Royal Australian College of General Practitioners and the Australia Medical Association, should establish a working group to:

  • Review the skills needed by GPs to enable them to meet the anticipated aged care needs of the Australian Population over the next 30 years.
  • Determine the anticipated need for GPs to deliver geriatric medical services, particularly in the aged care context over the next 30 years.
  • Review the state of geriatric undergraduate medical education with a view to mandating a core subject that enables the medical graduate to adequately meet clinical needs and anticipate demand.

They should have express regard to the ANZSGM Position Statement number 4 – Education and Training in Geriatric Medicine for Medical Students.


Each Australian University Medical School should review its undergraduate medical curriculum with a view towards:

  • making geriatric medicine a core element of the undergraduate medical curriculum.
  • making placement in a geriatric clinical setting a required portion of internship training in advance of registration.


The Commonwealth Department of Health should fund and collaborate with the Royal Australian College of Medical Practitioners, the Royal Australian College of Physicians and the Australian Medical Association to conduct an ongoing research program designed to estimate the short, medium- and long-term demand for geriatric services for older Australians.


The Nursing and Midwifery Board of Australia and the Australian Nursing and Midwifery Accreditation Council should incorporate an introductory module/subject on geriatric medicine and gerontology care into the Enrolled Nurse Accreditation Standards and the Registered Nurse Accreditation Standards.


To increase the supply of nurse practitioners, the Australian Government should introduce scholarship programs (with aged care return of service obligations) for nurse practitioner training and advance skill nursing.


A registration scheme for personal care workers should be established, with the following key features:

  • mandatory minimum qualifications
  • scope to require that qualifications be obtained from certain approved training providers 
  • ongoing training and continuing professional development requirements
  • minimum levels of English language proficiency
  • criminal history screening requirements
  • a Code of Conduct and power for the registering body to investigate complaints into breaches of the Code of Conduct.


The Commonwealth should lead workforce planning for the aged care sector, and should identify an agency or body that has overall responsibility for aged care workforce planning, with key actions being:

  • long-term workforce modelling on the supply and demand of health professionals and care workers (however described), to inform the development of workforce strategies for aged care
  • overall management of the training pipeline for health professionals and care workers, in partnership with the States and Territories, universities, Registered Training Organisations, National Boards, professional associations, specialist colleges and other key stakeholders
  • driving improvements in labour productivity across the health professions and care workforce (however described)
  • ensuring an appropriate distribution of the health professional and care workforce to meet the needs of population across the aged care sector, particularly in rural and regional Australia, and
  • facilitating the migration of health professionals and care workers to Australia to address identified health, aged care and disability workforce needs.


The Australian Government should work in partnership with the Aged Care Workforce Industry Council, and provide the financial and practical support necessary to implement the Taskforce Report recommendations.

See below for the full details of the address.

Beginning with a short video clip from a social campaign to change the perception of aged care work in the UK (pictured above), Mr Rozen stated that the increasing number of people aged over 85 in the next forty years means that without change, the aged care system is at risk of collapsing – and urgent action is needed.

“Addressing the significant challenges will require new thinking; it will require policy makers and the sector to take some risks,” he said seriously. “Not every initiative will succeed. This must be accepted. What future generations will not forgive is an unwillingness to learn from the mistakes of the past.”

“If the goal of this Royal Commission is to make recommendations to achieve high quality, safe and person-centred aged care services,” he went on, “as it must be under the terms of reference, then the time for real action on staffing numbers and mix, skill levels, remuneration, conditions of work and registration of the unregulated portion of the aged care workforce is now.”

Qualifying that the recommendations for this hearing only related to residential care – with the challenges of the home care workforce to be addressed in a separate set of submissions later in the year – Mr Rozen added that these submissions are just one piece of a “complex puzzle”.

“To take one obvious example, significant increases in funding will be needed to pay for the additional staff that will be needed to meet the minimum ratios that we propose,” he said.

The Senior Counsel then outlined the five areas where the Counsel Assisting have made their recommendations to the Commissioners:

Staffing numbers and mix

Noting that of the 8,053 submissions received so far by the Royal Commission, 53% have concerned staffing issues including ratios, the Senior Counsel recommended minimum staffing numbers and 24/7 RNs to the Commissioners – but qualified that these will only be effective as part of a package of reforms including better training for aged care staff.

Mr Rozen also stressed that any minimum staffing requirements should require facilities to staff at a level that would enable them to achieve a 4-star rating (or 242 minutes of care) under the US’ CMS rating system (the equivalent of ‘good practice’)

Currently, only 15.8% of Australian aged care residents are in homes staffed to this level.

Recognising that a “phasing in” period would be necessary, the Senior Counsel also stated facilities should be required to provide minimum levels of allied health care per resident per day – even if they are located in rural and remote areas.

“Australia cannot have two aged care systems,” he said emphatically. “If one accepts that adequate staffing is vital to ensure that care recipients receive high quality and safe aged care, that must hold true whether the care recipients are in suburban Sydney or remote Western Australia. Other laws aimed at ensuring safety, such as those concerned with workplace health and safety, apply in an identical fashion in all Australian workplaces regardless of the financial health of a particular employer. So do minimum wage laws. Aged care laws should be no different.”

Mr Rozen acknowledged the magnitude of what the Counsel Assisting team are putting forward.

“It goes without saying that the proposal for mandatory minimum staffing levels cannot be achieved within the current funding envelope,” he stated.

“This is a recommendation that would clearly have significant funding implications.”

However, he pointed to the potential benefits including lower staff turnover and more stability in the workforce.

Aged care education and training

The Senior Counsel said in addition to increasing staff numbers, it is vital for staff to have the right training and qualifications.

Accordingly, the Counsel Assisting team have recommended the Certificate III in Individual Support (Ageing) should be the minimum mandatory qualification required for personal care workers.

“The recommendation is also part of a suite of measures that aim to professionalise the workforce and ensure that the work it performs is appropriately recognised and valued,” Mr Rozen said. “We submit that this is critical if aged care is to become a sector that can attract and retain a capable, caring workforce in sufficient numbers to meet Australia’s growing needs.”

He also pointed the Commissioners towards the possibility of a portable training scheme where workers would get credits for time spent working that could be “cashed in” for training, and called for clearer definitions for jobs in aged care and better professional development.

The role of nurse practitioners in residential care was also flagged for an expanded role, picking up on evidence from the Canberra hearings on the interface with the health care system in December.

Regulation of personal care workers

Speeding up as the clock started to tick, the Senior Counsel moved onto the next recommendation that a national register for personal care workers be established – emphasising the need for this to include both English language proficiency and criminal history checks plus a Code of Conduct.

“The evidence before you is that there are clear examples of instances where conditions in aged care facilities have been unsafe, in part due to the conduct of people charged with the care of residents,” he reminded the Commissioners. “In some cases where such conduct has been drawn to the attention of the providers at the aged care services where it has occurred, the response has been unsatisfactory and has even bordered on callous.”

Mr Rozen also called out the Government’s slow progress on implementing the Serious Incident Response Scheme (SIRS) recommended by Kate Carnell and Professor Ron Paterson in their 2017 report into aged care regulatory processes post-Oakden.

“Submissions have been provided to us outlining the steps that are being taken but it’s now three years since Carnell, and these efforts require a more urgent response,” he said pointedly.

The Senior Counsel lacked details however on which body should oversee the scheme, noting evidence that AHPRA may not be the appropriate body to deal with personal care workers.

Terms and employment

Mr Rozen dealt with this section quickly – not because it is considered unimportant, but because it is throwing up real challenges, he said (and hence, no recommendations yet).

Despite the “consistent theme” of aged care workers being poorly paid and dealing with poor working conditions, the Senior Counsel said an informal workshop held by the Royal Commission earlier this week with five of Australia’s leading labour law academics had failed to throw up a clear solution.

The group advised that neither low wage bargaining or equal remuneration orders (like New Zealand) were unlikely to be “fruitful” and the third option – to amend the nurses awards in aged care – would require the Government and sector to work together with the unions and residents – a big ask.

“Based on what they told us, without strong Federal Government commitment and a cooperative approach that involves employers, unions and care recipients, along with the government, success will be elusive and that’s the lesson from not only the New Zealand experience which you heard about from Dr Ravenswood this morning but also in that case where pay increases were obtained under the social and community services award the Federal Government committed to funding that to the tune of $3 billion,” Mr Rozen said, sounding doubtful.

Leadership of the aged care workforce

Now clearly against the clock, the Senior Counsel skipped over the role of providers – noting this had already been canvassed at the Mudgee and Hobart hearings (and flagging there will be an upcoming workshop on the governance of aged care providers) and went straight to the Government’s role in leading workforce change – or lack thereof.

“In our submissions, Commissioners there appears to be a lack of leadership and expertise about aged care within the Department of Health,” Mr Rozen said bluntly.

Citing the evidence of Professor John Pollaers about his frustration in implementing the recommendations from the 2017 Aged Care Workforce Taskforce report, he said the evidence painted a “concerning picture” of a Government that “does not see itself as a leader but is at best a facilitator”.

In making the tenth and final recommendation, Mr Rozen in particular singled out the evidence from former Department of Health Secretary Glenys Beauchamp (whose retirement was announced last month) and her evidence about the Government’s reluctance to provide a formal response to Professor Pollaers’ report.

“Commissioners, as was put to Ms Beauchamp at the Melbourne hearing this is not leadership,” he concluded. “In my submission, it suggests an approach at the highest levels of the aged care bureaucracy that is timid. It’s risk averse, more worried about political risk than making a contribution to the contribution of aged care reform. It’s an approach we submit must change if the government is to fulfil the true role of a leader that is so necessary to the aged care sector to become an employer of choice.”

How will the Government take this criticism? They have a chance to respond – the Counsel Assisting’s submissions have been posted on the Royal Commission website and will be open to submissions in response until Friday, 13 March 2020.