Senior Counsel Assisting Peter Rozen QC’s full closing address – 18 October 2019

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“Commissioners, your first term of reference requires you to inquire into the quality of aged care services in Australia, the extent to which those services meet the needs of older Australians, the extent of substandard care being provided, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response. The evidence this Commission has heard since it commenced establishes a clear link between the numbers and quality of aged care workers and the quality and safety of aged care services. That evidence demonstrates that the aged care sector is struggling to attract, train and retain its workforce.

Aged care recipients must receive quality care and must be protected from harm. Their wellbeing must be ensured, their quality of life supported. Older Australians deserve respect and dignity. The aged care workforce is critical to ensuring that these basic rights are met. The workforce is too small. The bare minimum has become the norm. It is unsustainable. Further, the current workforce does not have the right skills mix. The evidence suggests skills deficits across the sector, exacerbated by time-poor staff and threadbare rostering practices. Inadequate education and training has limited workforce capability to deliver quality clinical care.

On current trends, the entire system is under serious threat, and without fundamental change we’re concerned the system will fail. Nurses and personal care workers, doctors, allied health professionals and allied health assistants must work in integrated care teams to ensure that those receiving aged care are looked after and do not come to harm. Together, they must ensure that people are well cared for and their quality of life and their wellbeing is supported and enhanced. An integrated care team which is skilled, knowledgeable, educated and trained in age-related conditions and illnesses is necessary for the provision of both quality and safe care. Integrated care teams must be diligently supported by rigorous governance structures and effective leadership by industry and government.

There’s a debate about whether aged care is primarily about clinical care or whether it is about delivering holistic care in a home-like environment. The issue is fundamental to aged care reform. It’s also fundamental to the type of aged care workforce we need now and into the future. Professor John Pollaers and Professor Kathy Eagar highlighted this issue in their evidence this week. Professor Eagar said that aged care: …residents have a right and it is possible to provide both an environmentally friendly place for people to receive care, socially engaged and clinically competent care at the same time.

She pointed to compelling evidence that shows the majority of residents are very frail and have significant care needs. Professor Eagar proposed a focus on clinical care in response to those needs. She said:

When people describe residential aged care as a person’s home, it is somehow implying that it’s a lifestyle choice rather than people are going into residential aged care now because they’re so frail or have other significant care needs that they can no longer be at home. The population currently in care needs more clinical skills, not less.

Professor Pollaers was critical of a few aspects of Professor Eagar’s report. He said in part that the report is premised around a clinically based institutionalised government approach to delivering aged care services. He contends the need is for the workforce to be able to respond to clinical care needs but also to deliver a holistic care model. He described the five elements of a care plan as clinical needs, functional health needs, cognitive health needs, cultural and linguistic needs and living well aspirations. We submit that the evidence about the level of frailty of those currently in residential aged care facilities is powerful and should be acknowledged in system design.

However, aged care must deliver both quality of life and quality clinical care. The two are not mutually exclusive. Unfortunately, the current system appears to be failing on both fronts. We know from the evidence this week and in earlier hearings that in order to provide quality and safe care, we need more staff in residential aged care facilities and a better mix of staff. The decline in the employment of nurses in aged care must be addressed and reversed. In both residential and home care, staff must be allowed the time to engage with those they care for and to undertake their duties properly and compassionately. This will help to ensure that high quality and safe care is delivered.

In Professor Eagar’s judgment, 58 per cent of all Australian aged care residents receive unacceptable care hours. For all residents to receive at least three-star care hours there would have to be a 37 per cent increase in total care staffing in those facilities currently rated at either one or two stars, on her analysis. That would equate to an overall increase of 20 per cent in total care staffing across Australia. This shortage of staff must be addressed. More staff will go some way to improving the quality and safety of care. It will improve the safety of workers, ensuring that workers are able to work in a safe environment. In turn, this should improve attraction and retention of staff.

As Ms Peake’s evidence indicated, workers are more likely to want to stay in safe and supportive workplaces where they are able to perform their work to a high standard and where they feel valued. You heard evidence this week about some options to improve staffing numbers. You heard about methods for calculating staff numbers and staff mix. In particular, you heard about work undertaken by Flinders University on behalf of the Australian Nursing and Midwifery Federation, and work by the University of Wollongong, conducted for this Royal Commission. You have heard calls for mandatory minimum staffing levels and a need for greater transparency around staffing numbers. This could include publication of staffing numbers or a star rating type system as proposed by Professor Eagar. There may be other options, however, one thing is clear, the status quo is unacceptable.

We submit that there’s a strong argument for introducing a methodology to determine appropriate staffing numbers and mix of skills and for any methodology to be transparent. The models explained at this hearing are sophisticated and cannot be fairly described as blunt instruments. Most organisations currently use some method to determine the number of staff they require. As Mr Gilbert of the ANMF said, the current approach used by some employers of relying on aged care industry data to benchmark staffing numbers could not be more blunt. That approach might be regarded as a race to the bottom.

We also heard about the importance of enforcing existing standards around the workforce. In the context of the Menarock case study it became apparent that aged care standards and the current assessment processes may not be adequate to ensure that residential aged care facilities are staffed appropriately. Ms Ann Wunsch contended that the Aged Care Quality and Safety Commission provides aged care providers with sufficient guidance on how to meet accreditation standards relating to human resources, however, she stated it does not provide its own assessors with guidance in relation to a range of care staff to resident ratios that might be considered an appropriate range to provide adequate care.

The Commission also does not provide guidance to assessors about the nurse hours per day that might be regarded as reasonable to provide care. On the evidence before you, such guidance is clearly available to be provided. It should be. Commissioners, it is reasonable to conclude that change is required to ensure compliance with the requirement in section 54 of the Aged Care Act that approved providers maintain an adequate number of appropriately skilled staff to ensure that the care needs of recipients are met. As we heard from Mr Bonner, there is no clear standard or benchmark against which compliance with this provision can be measured. There’s no objective measure of whether or not the staffing numbers and mix are appropriate for the needs of the care recipient.

This uncertainty serves no one’s interests, not the regulator, not providers, not workers, and certainly not the residents and their families. In addition to having the right numbers of workers we need to do more to ensure that we have the right type of workers in aged care. Carers must have empathy for those they look after. The Japara case study we examined yesterday demonstrated that this is not always the case. Structural reform is needed, perhaps by way of a registration scheme to exclude unsuitable workers. This morning you heard from a panel of witnesses about gaps in the current arrangements to oversee unregistered personal care workers.

This included that the Aged Care Quality and Safety Commission does not have powers in relation to those workers and there are a number of differences between the oversight provided by states and territories. Ms Reid of the Commission said:

As a national body it does make it difficult to understand the difference laws that are around the country to be able to think about referring. This evidence of a fragmented system is troubling.

Perhaps it’s a reason why, on Ms Reid’s assessment, the Aged Care Quality and Safety Commission was conservative in its referring practices. Ms Reid’s personal view was that it would be an improvement to have some carer register, a national register. The issue of staffing numbers and mix is a complex one that is inextricably linked with the funding of the aged care system. Funding is an issue that we will consider in detail as the work of the Royal Commission continues into 2020. The vocational and educational training or VET sector is a crucial part of workforce reform and is itself in transition following the 2019 Joyce review Strengthening Skills.

We are not confident that the reforms outlined in the Joyce review will bring about necessary reform in the immediate term. Much will depend on how quickly the Council of Australian Governments embraces and accelerates action on the recommendations. Mr Bonner described the Joyce review as another example of:

… rearranging the deck chairs of the system but failing to address the fundamental problem of what the qualification looks like.

Ms Nadine Williams from the Department of Employment, Skills, Small and Family Business stated that:

The Commonwealth and State and Territory governments have joint responsibility for the VET system. The Commonwealth is responsible for providing funding contributions to the States and Territories to support their training systems and operates a number of programs aimed at supporting key priorities such as apprenticeships and literacy and numeracy.

We expect there will be a significant role for that department in helping the vocational education sector gear up to meet current and future demand in the aged care sector. This work must include consideration of curriculum design, assessment and quality control. A National Skills Commission is to be established by 1 July 2020. That Commission will play a role in monitoring the supply of workers into areas with identified skills shortages. The aged care sector should be identified as an area of critical skill shortage. There needs to be a greater focus on preparing graduates to be work-ready in aged care. There need to be opportunities for greater interconnections between undergraduates and industry including appropriately supported clinical placements.

In the medical professions, traditional undergraduate curricula have been slow to deliver graduates that have the skills required to treat the ever-growing cohort of geriatric patients. The current practice of leaving it to clinical placements in geriatrics which is either not mandatory or in other cases, not even offered, must be questioned. Undergraduate medical nursing training must embrace geriatric training as core business. As the demand for aged care increases, more geriatricians will be required. Coordination of geriatric training must be considered at a Council of Australian Governments level and the Commonwealth needs to be engaged in addressing the likely skill shortage in the same way that it prioritises rural and regional health.

More immediately, access to geriatric review and assessment and maintenance of the role of geriatricians in the aged care assessment team process, as outlined yesterday in the evidence of Dr Maddison, should be priorities. There is simply no public health benefit in any reduction of access to geriatric services. These services matter to people in residential aged care. We are aware of work being undertaken by the Aged Services Industry Reference Committee. However, changing curricula, course content, and delivery mechanisms, both in the VET and higher education sectors, can take considerable time. You will need to consider options to fast-track this work. The need for minimum education and training qualifications to work in aged care and a requirement for ongoing professional development while employed in the sector will need to be carefully considered.

You have heard there could be merit in a registration scheme for aged care workers that, in addition to excluding unsuitable workers, requires the workers in the system to undertake training provided by particular accredited institutions. This already happens in nursing where the Australian Nursing and Midwifery Accreditation Council approves education providers for a program leading to enrolled nursing registration. It could add to the status of personal care work thus making it more attractive as a career option. We urge you, Commissioners, to consider a registration scheme for personal care workers. Such a regime should include requirements around training and continuing professional development of that workforce.

The true value of work in aged care is not reflected in terms and conditions of employment including remuneration and job classification. You have heard evidence of significant differences in remuneration between aged care and other comparable sectors including health care and disability services. These differentials must be addressed to ensure that workers with aptitude, skills and training are attracted to and remain within the aged care sector. The sector must become an employer of choice. Professor Sara Charlesworth considered that a significant factor which contributes to the undervaluing of aged care work is that caring is seen as what women do innately and for free at home.

Consequently, care work is not valued. It’s viewed as not requiring any degree of skill when the opposite is true and it’s poorly remunerated with poor working conditions. An example of this is home care workers who are not paid travel time. They’re required to travel between clients’ homes but they are not remunerated for this time. As the primary funder and head of the supply chain, an expression used by Professor Charlesworth, the Commonwealth must have a more active role in addressing the remuneration of aged care workers. It was concerning to hear from Mr Paul Gilbert that in his lifetime:

…there have been three times that the Commonwealth Government has increased taxpayer subsidies to aged care to improve wages and not once did that deliver a dollar in improved wages.

Commissioners, we expect you will need to make recommendations to address low remuneration in the aged care sector. The issue is complex because wage levels in Australia are primarily set through enterprise bargaining, a system that favours those with bargaining power. As the union panellists explained to the Royal Commission this week, aged care workers don’t have much bargaining power. Helpful suggestions have been made during the week: legislative reform in industrial relations is one. Proactive involvement by the Commonwealth in enterprise bargaining is another. These and other mechanisms require further consideration.

Yesterday we heard from a panel of Chief Executive Officers that good governance, leadership and business management will help attract the qualified people to work in aged care roles. Leadership in the sector is crucial. Aged care needs business leaders who can plan and develop an aged care workforce. Management boards need to be composed of people of mix of skills including people with clinical expertise. They need to be held accountable. They are responsible for delivering services that are largely paid for by taxpayers. In the Royal Commission’s case studies, both this week and in earlier hearings, we have seen how disastrous poor management and governance can be for the safety of residents.

Better governance and leadership within the industry could be supported by a regulatory framework that places appropriate emphasis on leadership and governance capability, but regulation alone will not be effective without cultural change in the industry. Commissioners, the Commonwealth appears on the evidence you have heard to be missing in action. It needs to demonstrate leadership and commit the resources necessary to build industry competence and to ensure delivery of an aged care system that meets community standards and it needs to act quickly. There appears to be a lack of leadership and expertise about aged care within the Department of Health.

As recommended by Professor Pollaers in strategic action 10 of the taskforce report, A Matter of Care, there is a need to rebuild the Commonwealth’s own aged care workforce and leadership. Mr McCoy, the acting chair of the Aged Care Workforce Council, a body charged with implementing the taskforce’s 14 strategic actions, outlined a story of poor engagement from the government with that body. He confirmed that without more government support, the capacity to implement the strategic actions of the workforce strategy is poor. This observation was supported by another council member, Ms Hills of Benetas.

While there is a key role for industry in workforce planning, the Commonwealth also needs to be active. Funding from its aged care workforce programs has been stripped. Important data and information on what the industry needs is not captured. The Commonwealth’s failure to lead in aged care has contributed to the distressing outcomes for care recipients, their families and workers that you continue to hear evidence about. You have heard about the aged care workforce census which is conducted every four years. Commissioners, we don’t think this is sufficient for a workforce that is experiencing significant change.

The aged and disability sector is expected to grow by approximately 17.8 per cent in the next five years and will account for at least 10.9 per cent of all new jobs created in the Australian economy. We need better data about the workforce to facilitate workforce planning as well as appropriate benchmarking and other transparency and accountability measures. There should be regular publication of this data so that industry can use it for planning purposes, and this more regular data collection should be supplemented with a detailed five-yearly census on a wider range of variables. The Commonwealth must step forward and take positive responsibility for the aged care workforce in partnership with the sector. This is a large and important part of our community and of our economy.

There are projections of significant future demand. The sector provides care to vulnerable old people and is largely funded and regulated by the Commonwealth. The time has come for action. In conclusion, Commissioners, there’s a lot of discussion about reform in aged care. There have been many reviews, many papers have been written. What is lacking is sustained and coordinated action. There doesn’t appear to be any sense of urgency. The report of the Aged Care Workforce Taskforce published last year, A Matter of Care, is comprehensive. We consider that the 14 strategic actions that Professor Pollaers and his taskforce announced a year ago are broadly on the right track. The blueprint is available.

However, the actions are not being implemented; where they are being implemented, we’re concerned, the structures established to drive reform will be ineffective without assistance. For example: the workforce industry council is struggling to build momentum. It lacks the resourcing and imprimatur of the broader industry and of the Commonwealth. We submit to you that, based on the current progress and the structures in place for implementation, there must be real concerns about whether the strategic actions can be achieved in the three-year timeframe set down by Professor Pollaers.

Workforce reform as contemplated by Professor Pollaers requires more than bandaid solutions and selective and limited refinements in improvements to the way the current system works. The strategic actions are designed to be implemented together to achieve an appropriate and effective aged care workforce in the medium and longer term.

Commissioners, these are all important issues. The challenge now is for this Royal Commission to start focussing on solutions. To this end, we call for written submissions on policy issues relating to the following areas: methods for determining appropriate staffing-levels and the appropriate skills mix for aged care, ideas for transforming aged care training and education, a registration scheme for personal-care workers, options to resolve low remuneration and poor working conditions, governance, leadership and workforce culture and the respective role of the Commonwealth and the aged care industry in relation to the aged care workforce.

Details of how these submissions may be made will be published early next week on the Royal Commission’s website. We may also seek to refine the above questions at that time. Submissions must be provided to the Royal Commission by 6 December 2019, and we anticipate these submissions will be published on the website. However, the Royal Commission reserves the right not to publish submissions or to redact information in submissions before publication.

Finally, Commissioners, a word about the Interim Report: As has already been stated publicly, the text of the Interim Report prepared by the late Commissioner Tracey and Commission Briggs was settled at the end of September. This was necessary to meet publication deadlines for delivery to the Governor General by the end of this month. The Interim Report will include information about Commissioner Tracey’s and Commissioner Briggs’s overall impressions about the aged care system and more-detailed analysis about a limited number of topics. The interim report will include reflections on the aged care workforce, given that the issue has permeated all of our hearings and work to date. However, it will not reflect the evidence received at this week’s hearing.

Commissioners, we had a sobering start this week, honouring the life of our esteemed colleague – the Honourable Richard Tracy, AM RFD QC. We reflected on our time with and memories of Commissioner Tracey. In closing this hearing, with particular relevance to our examination of workforce issues, we reflect on the words of Commissioner Tracey following evidence that was given by four aged care workers in the second Adelaide hearing. At that time, the conclusion of their evidence, Commissioner Tracey said – and I quote:

We’re enormously grateful to you for bringing us stories from the coalface and giving us a better understanding of what it is like, to provide quality care to the aged in this community. And the dedication that you display on a day-to-day basis is something this community must be exceedingly grateful for.

We’ve heard in this Commission about the challenges facing the aged care sector, but as a community, we ought follow Commissioner Tracey’s lead and be exceedingly grateful for the dedication that so many aged care workers display on a day-to-day basis. However, we submit that gratitude needs to mean something in real terms. It needs to mean a safe place to work. It needs to mean respect for that work. It needs to mean that the work is properly valued, if the Commissioners please.”