Jan 16, 2024

Stronger penalties and supported decision-making: What consumers like about the new Aged Care Act

HC aged care act
Older people will have stronger rights and increased support to make their own choices under the new Aged Care Act. [Source: Shutterstock]

In late 2023 the Federal Government released an exposure draft of the new Aged Care Act, which is essentially a draft version that will be amended slightly before it reaches Parliament in the middle of 2024.

As a rights-based legal framework, the new Aged Care Act places far more emphasis on person-centred care, safety, respect and quality of life. Last week the Older Persons Advocacy Network (OPAN) and the Council on the Ageing (COTA) collaborated in a webinar to highlight what’s at stake for consumers, workers and providers. 

Older Australians will be at the centre

The new Act is based on two key elements:

  • A Statement of Rights that outlines the rights older people have in the Government-funded aged care system
  • A Statement of Principles that is a set of guidelines the Government must consider when making decisions under the Act

For Val Fell OAM, a member of COTA and OPAN’s National Older Person’s Reference Group, both Statements ensure older Australians will have their human rights considered when accessing aged care services.

“We will have the right to live as we want to live, have choice and control over our lives, and to be able to make decisions about our everyday living, our social connections and all that kind of thing,” said Ms Fell.

“And we would be able to live hopefully without discrimination because of our age, our sexual orientation, our gender, our remoteness from the centre of things, it’s very important.”

Other members of the Reference Group also shared their thoughts, including Kevyn Morris who said the aged care sector stopped focusing on caring for people, while Beverly Baker said it no longer frames older people as a burden.

“You should be able to live with dignity and respect and have people understand that behind you is a full and meaningful life. You are not a burden, you are a gift, and you have contributed to your society for your entire life,” Ms Baker said.

Meanwhile, Craig Gear OAM, CEO of OPAN, added that the new Act is essentially rebalancing the aged care system to ensure older people are working in partnership with aged care providers.

This means consumers have the power to direct their care with the provider supporting them. Mr Gear added this will maintain autonomy for older people while still enabling them to access care and support. 

Supported decision-making strengthened

One of the bigger changes to the Act is anyone who is appointed as a support or representative to make choices for an older person must follow supported decision-making principles under the law. 

This is particularly important for people living with cognitive decline as their supporters and representatives will need to do all they can to maintain choice and control for older people. 

“This is talking about if you appoint someone as your supporter or representative, that then means that they need to work under a supported decision-making framework. I think it’s very easy for us to fall and go, ‘I think this is what’s best for mum and this is in her best interest’, that’s not what this is about,” explained Mr Gear.

“This is saying that even if you ported in the Power of Attorney or a substitute role for making decisions, it has to be done by thinking about the wishes and preferences of that person.”

Both Mr Gear and Ms Fell spoke of the importance of appointing a desired supporter or representative who understands the older person and is going to work with them to promote their choices.

“We must make sure that no one is appointed as a supporter or a representative who has absolutely no knowledge of the past because you can’t fix the future if you don’t know about the past,” explained Ms Fell.

Penalties for wrongdoing

Among the other important features are the new penalties for provider wrongdoing. Now, providers or responsible persons (such as executives and board members) who do not take reasonable steps to avoid causing harm or safety are at risk of criminal or civil penalties.

“What is really new and quite different is that there are statutory duties on providers and responsible people. The provider has to ensure their conduct doesn’t cause adverse effects on people’s health and safety,” explained Pat Sparrow, CEO of COTA.

“If there’s been a serious failure, we’re talking about someone’s been put at risk of death or a serious injury or illness, or there’s been a significant failure and it’s been a systemic pattern, then there are compensation pathways, including imprisonment for people.”

Holding providers to greater account is an important step for aged care consumers. Older people will have the opportunity to go directly to the Quality and Safety Commission for compensation or to the Federal Court – albeit only for the most serious incidents. 

“For me, the Act or the legislation is no good unless there are consequences for not doing what it says. And if you’re caught sneaking around the back door, then the door gets slammed on your foot,” added Mr Morris.

Do you have any questions about the Aged Care Act? Ask us in the comments below! You can also click on the link to view the webinar in full or to access a range of important documents from OPAN.

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