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Aged care

15 Aug 2016 - 14:47 | Version 38 |

Contributed by LorraineGibbs and MaryHawkins and current to 1 May 2016

Where to find information

Comprehensive advice is available from the Commonwealth Government's online site: myagedcare. Go to http://www.myagedcare.gov.au/.

The Guide to Aged Care Law (http://guides.dss.gov.au/guide-aged-care-law) is an easy to use plain English text that will help approved providers to understand their responsibilities and obligations under the Act.

Legislation

Commonwealth funded aged care is provided under the Aged Care Act 1997 (Cth) (the Aged Care Act). The Aged Care Act provides for the making of subordinate Aged Care Principles (the Principles) which are legally binding. The Aged Care Act is now administered by the Department of Health following recent government changes.

Individual's rights and responsibilities

The rights and responsibilities of the individuals who receive Commonwealth Government-funded aged care services are set out in the Aged Care Act 1997 (Cth) (the Aged Care Act) and the subordinate Aged Care Principles (the Principles). There are a number of Principles covering all aspects of aged care and these are listed below. These rights and responsibilities are designed to recognise the potential vulnerability of older people in need of care and that these individuals continue to have rights and responsibilities regardless of their care needs. The Australian Aged Care Quality Agency Act 2013 (Cth), otherwise known as the Quality Agency, undertakes accreditation of residential care services in accordance with the Quality Agency Principles and the four Accreditation Standards made under the Aged Care Act and conducts the quality review of home care services in accordance with the Quality Agency Principles, and the Home Care Standards made under the Aged Care Act.

Objectives of the Aged Care Act

In summary the broad objectives of the Aged Care Act are to:
  • assist care recipients to enjoy the same rights as other Australians
  • ensure that aged care is accessible and affordable for all care recipients regardless of race, culture, language, gender, sexual orientation, economic circumstance or geographic location.
  • promote a high quality of care and accommodation
Section 96.1 of the Aged Care Act states that the Minister may make Principles 'providing for matters required or permitted by ...' various Parts or sections of the Act or that are 'necessary or convenient to be provided in order to carry out or give effect to that Part of section ...' of the Act. The provisions of each Part or section of the Act will indicate when a particular matter is or may be dealt with in the Principles relevant to that Part or section.

The Principles can be found on the Department of Social Services Aged and Ageing Care page at: https://www.dss.gov.au/our-responsibilities/ageing-and-aged-care/publications-and-articles/legislation .

The Act and Principles together outline the way in which care recipients are approved and then classified according to the level of care they require and the service to be provided. The quality of the care provided and the care recipient's rights and responsibilities in relation to that care are also covered.

The Act and Principles together outline the way in which aged care service providers are approved, the allocation of places for care, the conditions relevant to the various subsidies available, user rights, accountability, record keeping, confidentiality, the consequences of non-compliance with certain sections of the Act and Principles, sanctions and the powers of investigatory officers.

Objectives of the Australian Aged Care Quality Agency Act

The objectives of the Australian Aged Care Quality Agency Act 2013 (Cth) include:
  • to provide accreditation of residential care services in accordance with the Quality Agency Principles and the Accreditation Standards made under the Aged Care Act
  • to conduct the quality review of home care services in accordance with the Quality Agency Principles and the Home Care Standards made under the Aged Care Act
  • to promote high quality care, innovation in quality management and continuous improvement amongst approved providers of aged care, and
  • provide information, education and training to approved providers of aged care in accordance with the Quality Agency Principles

The Principles

As noted above, in addition to the Acts subordinate legislation in the form of Principles have been created. These are legally binding.

The current Aged Care Principles are:
  • Accountability Principles 2014 (Cth)
  • Aged Care (Transitional Provisions) Principles 2014 (Cth) made under the Aged Care (Transitional Provisions) Act 1997 (Cth)
  • Allocation Principles 2014 (Cth)
  • Approval of Care Recipients Principles 2014 (Cth)
  • Classification Principles 2014 (Cth)
  • Committee Principles 2014 (Cth)
  • Complaints Principles 2015 (Cth)
  • Extra Service Principles 2014 (Cth)
  • Fees and Payments Principles 2014 (No.2) (Cth)
  • Grant Principles 2014 (Cth)
  • Information Principles 2014 (Cth)
  • Quality of Care Principles 2014 (Cth)
  • Records Principle 2014 (Cth)
  • Sanctions Principles 2014 (Cth)
  • Subsidy Principles 2014 (Cth)
  • User Rights Principles 2014 (Cth)
Charter of Resident's Rights and Responsibilities residential care and home care

Two important Charters can be found in the User Rights Principles 2014: 1. Charter of Resident's Rights and Responsibilities - residential care, and 2.Charter of Resident's Rights and Responsibilities - home care. The Charters set out the care recipient's rights but also the care recipient's responsibilities in both the residential care and home carE settings. For example, rights under the Charter of Resident's Rights and Responsibilities - residential care include:
  • to full and effective use of his or her personal, civil, legal and consumer rights
  • to quality care appropriate to his or her needs
  • to be treated with dignity and respect, and to live without exploitation, abuse or neglect
  • to live without discrimination or victimisation, and without being obliged to feel grateful to those providing his or her care and accommodation;
  • to personal privacy.

Care recipients responsibilities residential care include:
  • to respect the rights and needs of other people within the residential care service, and to respect the needs of the residential care service community as a whole
  • to respect the rights of staff to work in an environment free from harassment

Care recipients - home care rights include:
  • to be treated and accepted as an individual, and to have his or her individual preferences respected
  • to be treated with dignity, with his or her privacy respected
  • to receive care that is respectful of him or her, and his or her family and home
  • to receive care without being obliged to feel grateful to those providing the care
  • to be treated without exploitation, abuse, discrimination, harassment or neglect
Care recipients - home care responsibilities include:
  • to respect the rights of care workers to their human, legal and workplace rights including the right to work in a safe environment
  • to treat care workers without exploitation, abuse, discrimination or harassment
  • to acknowledge that his or her needs may change and to negotiate modifications of care and service if his or her care needs change

Service providers

Aged care service providers in both settings, residential and home (or community) care, must adhere to the standards and quality of care as well as provide the type of care outlined in the Aged Care Act and relevant Principles, depending on the type of service they are providing.

The Aged Care Act covers the provision of residential, home, respite and flexible care. Providers of residential aged care services must comply with the Aged Care Act 1997 (Cth) as well as the Principles, which list the responsibilities and accreditation standards for this type of service. The standards deal with all aspects of a recipient's care including health and personal care, lifestyle, physical environment and safe systems as well as management systems, staffing and organisational development. Schedules 1, 2 and 3 of the Quality of Care Principles provide details concerning the precise nature of these standards, the various principles and the mandatory expected outcome for each standard or principle.

In general, an aged care provider of home based, flexible or respite care must comply with the same standards and responsibilities as those services providing residential care, although the requirements vary slightly depending on the exact type of care provided. The rights and responsibilities of the care recipients of these services are the same as those individuals who receive residential care but again vary slightly depending on the nature of the care. Visit http://www.myagedcare.gov.au/ for more information.

Receiving aged care services

Assessment

Before an individual may receive any of the services available under the Commonwealth Government's aged care programs, whether residential, home, flexible care programs or respite services, they must obtain a referral for assessment from their doctor or other health care provider and be approved in accordance with Part 2.3 of the Act and the Approval of Care Recipients Principles 2014. A prospective care recipient will usually be assessed by an Aged Care Assessment Team (ACAT) which will generally be a team of health professionals consisting of medical staff and/or social workers. Each recipient will be assessed to determine if they are eligible to receive residential, home or flexible care. The assessment is free and will help the ACAT to determine the level of care and services the recipient may require and therefore the care options available to them.

For example, pursuant to sections 21.3 and 21.4 of Part 2.3 of the Aged Care Act 1997 (Cth) a person will be eligible to receive home care or flexible care if:

(a) The person has physical, social or psychological needs that require the provision of care; and

(b) Those needs can be met more appropriately through non-residential care services; and

(c) The person meets the criteria (if any) specified in the Approval of Care Recipients Principles as the criteria that a person must meet in order to be eligible to be approved as a recipient of home (or flexible) care.

There is provision under subsection 22.4(3) of the Aged Care Act 1997 (Cth) for a decision to be made in relation to a recipient without the need for assessment if the 'Secretary' (or the person delegated with their functions - generally the Aged Care Assessment Team or ACAT) is satisfied that there are exceptional circumstances that justify making the decision without an assessment.

After an assessment is completed the ACAT will contact the individual in writing with the results. An ACAT assessment does not mean that a person must enter an aged care facility or make use of home care and the decision to do so rests with the individual or their legal guardian. If the recipient is approved under the assessment to receive care, the approval will continue to have effect unless it expires, lapses or is revoked in accordance with the terms set out in section 23.1 and the Approval of Care Recipients Principles. The timeframe in which this may occur will vary depending on the type of care approved for the recipient and the terms of that care.

Complaints concerning assessment

If the recipient is not happy with the way an assessment was conducted, feels the limitations placed on the approval are unfair or they were not approved at all, the decision or process can be reviewed by using the review/complaints procedures in place with the ACAT. Certain decisions are regarded as 'reviewable decisions' under section 85.1 of the Aged Care Act 1997 (Cth). The Secretary (or delegate) is only required to reconsider a reviewable decision if the Secretary (or delegate) is satisfied that there is sufficient reason to reconsider the decision (see section 85.4 of the Aged Care Act 1997 (Cth) and below for more information about reviewable decisions).

A complaint should be made in writing to ACAT within 28 days of the date on which the individual received notice of the decision, setting out the reasons for requesting a review

See Useful contacts below for contact details.

What care is available

Residential care

If an individual is assessed by ACAT as requiring residential care, they should first consider the types of facilities that are available to them either in their local community or within the Northern Territory.

Choosing an aged care facility

When choosing an aged care facility it is important that the potential recipient or their carer visit a variety of facilities if possible, to ensure that the preferred facility will adequately meet the needs of the recipient. Issues for consideration should include:
  • Is the facility accredited?
  • Does the facility provide adequate privacy?
  • What rules does the facility have in relation to a care recipient's hobbies or comforts? Are they overly restrictive?
  • Is the location convenient to family and friends?
  • What activities are available for the residents?
  • Can a relative have a meal with the recipient?
  • Can the recipient bring their own furniture?
  • Can the care recipient have a pet?

Organising personal affairs

An individual entering into an aged care facility should consider organising their personal and legal affairs in order to be sure that their wishes will be carried out should their health fail. This may include updating a will or making one for the first time, considering guardianship or completing an advanced care plan. Legal advice should be obtained in relation to each of these issues.

See Useful contacts below for contact details.

For further information see Wills, Estates & When someone dies, and for powers of attorney see Legal documents.

Level of Care

If a recipient entered an aged care home before 1 July 2014 they would have been classed as either requiring low level care or high level care. This would have been determined as part of their ACAT assessment. These two levels of care no longer applied after 1 July 2014. Removal of these categories means a residential facility has more flexibility to meet a recipient's changing needs. This does not mean that the level of care someone will receive will be less.

Common classification and funding arrangements for aged care homes allow a single residential service facility to provide care appropriate to a resident's care needs if they meet the standards and other requirements for each as set out in the relevant sections of the Aged Care Act 1997 (Cth) and the Principles. Residents of residential aged care services are given a classification according to the level of care they need. The classification of a resident is undertaken primarily to determine the level of care funding payable for that resident. The care funding model is divided into the following three domains:
  • activities of daily living (ADL)
  • behaviour (BEH)
  • complex health care (CHC).

The level of funding provided depends on the assessed level of care need in each of the three domains. The level of care need is assessed using a funding tool called the Aged Care Funding Instrument (ACFI). The assessment of a resident's care needs utilising the ACFI is called an appraisal. The aged care provider undertakes the appraisal of the resident's care needs using an ACFI Answer Appraisal Pack.

Providers of residential aged care services must comply with the Aged Care Act 1997 (Cth) as well as the Principles, which list the responsibilities and accreditation standards for this type of service. The standards deal with all aspects of a recipient's care including health and personal care, lifestyle, physical environment and safe systems as well as management systems, staffing and organisational development. Schedules 1, 2 and 3 of the Quality of Care Principles provide details concerning the precise nature of these standards, the various principles and the mandatory expected outcome for each standard or principle.

Staying at Home - Community based care

Most older Australians continue to live in their own home either independently or with some supported home care services and only about 7% access residential care over their lifetime. Community based care is a term that describes a package of personal care services and other personal assistance that can be provided to a person who is not living in residential care (see section 45.3 Aged Care Act 1997 (Cth)). The aim of community based (or home) care is to keep a person who might otherwise need residential care at home for as long as possible. As noted above the Commonwealth Government pays providers of community care subsidies for the care services they deliver and the amount of the subsidy will depend on the extent of the care provided. This care may include any of the following: personal hygiene, general hygiene, assistance with communication, toileting, mobility, assistance with eating or the preparation of meals, social activities, medication, nutrition and hydration, pain management or emotional support.

Community care recipients have the right to be involved in the process of deciding the most appropriate care for them and must be provided with enough information to help them make an informed choice (see Charter of resident's rights home care in User Rights Principles).

They also have the following rights under this section:
  • To be given a community care plan that states the type of care the recipient will receive
  • To have their cultural, linguistic, lifestyle and religious preferences considered in the community care plan
  • To participate in social and community life as they choose and to be treated with dignity and have their privacy respected
  • To complain about the care they are receiving without being afraid of losing the care or otherwise being disadvantaged
  • To choose an advocate to speak on their behalf.

Individual needs are assessed on a case by case basis and where appropriate one of the following community based care packages will be provided:

Commonwealth Home Support Program (CHSP). This now encompasses the previous services of National Carer Respite Program, Day Therapy Centres, Assistance with Care and Housing for the Aged and Home and Community Care Services. Services include personal care, domestic assistance, home maintenance and modification, nursing care, food and allied health support services as well as respite assistance. CHSP services provided in the community include social activities, support, and transport assistance. To get home support a person needs to contact My Aged Care at www.myagedcare.gov.au and the contact centre who will organise an assessment conducted by the Regional Assessment Service.

Home Care Packages. For those needing a higher level of support, Home Care Packages provide a flexible range of services, including nursing care, personal care, allied health, access to aids and equipment and care coordination. All new packages will be Consumer Directed Care (CDC). CDC allows consumers to know what funding is available in their package and in the future all existing packages will be upgraded to CDCs. This means any home care package is individually negotiated and tailored to the needs of the individual by considering their choices and preferences, including culturally appropriate care and the provision of individual budgets. Assessments for this care are conducted by an Aged Care Assessment Team (ACAT) www.myagedcare.gov.au or Tel 1800 200 422 for more information.

Respite care

Respite care is residential or flexible care provided in a residential setting which has the primary purpose of providing a carer or care recipient with a short break from their usual situation. Respite is generally available for up to 63 days per year but may be extended in extenuating circumstances for further periods of up to 21 days per year if approved by the ACAT.

Flexible care

Flexible care refers to care provided in a residential or community setting through an aged care service. This care service is designed to address the 'special needs' of a care recipient in alternative ways to the care available through the traditional residential care and community care services (see section 49.3 of the Aged Care Act 1997 (Cth)). People with special needs are defined at section 11.3 as being:
  • people from Aboriginal and Torres Strait Islander communities;
  • people from culturally and linguistically diverse backgrounds;
  • people who live in rural or remote areas;
  • people who are financially or socially disadvantaged;
  • veterans;
  • people who are homeless or at risk of becoming homeless;
  • care leavers;
  • parents separated from their children by forced adoption or removal;
  • lesbian, gay, bisexual, transgender and intersex people;
  • people of a kind (if any) specified in the Allocation Principles.
In the Northern Territory flexible care services are available in remote and indigenous communities through the National Aboriginal and Torres Strait Islander Flexible Aged Care Program. The objective of this program is to ensure that older Aboriginal and Torres Strait Islanders have access to acceptable and culturally appropriate care. The service providers are required to adhere to traditional protocol and to be managed by people who are Aboriginal or Torres Strait Islander.

The providers of flexible care must comply with the same standards and responsibilities of other aged care services in relation to user rights obligations and requirements and also in relation to the quality of care they provide. This is dealt with under sections 53, 54.1 and 54.5 of the Aged Care Act 1997 (Cth).

See Useful contacts below for contact details.

Care services for veterans and war widows/widowers

If a person is a veteran of the Australian defence forces, a war widow or widower, there are services available from the Department of Veterans' Affairs (DVA) that can help a person to remain in their own home for as long as possible. The Veterans Home Care Program (VHC) includes a range of services to help support eligible veterans, war widows and widowers to remain living independently in their own homes for longer. VCH services can include domestic assistance, personal care, safety related home and garden maintenance respite care (both in home and residential). To receive these services, Gold or White Repatriation Health Card holders need to arrange to receive an assessment for services by telephoning a VHC assessment agency on 1300 550 450. Veterans may be eligible for home help services through other programs or packages if they are not eligible for the VHC program.

The Community Nursing Program also helps eligible veterans, war widows and widowers to continue living in their own homes by helping to manage medical or personal care needs. To receive these services, eligible veterans need to be referred for an assessment from an appropriate health professional. This could be the person's GP, a treating doctor in a hospital, a hospital discharge planner or a VAHC assessment Agency. For further information visit www.myagedcare.gov.au.

Responsibilities of providers to new care recipients

The approved provider must give a prospective care recipient, or their representative, written notice of the rights and responsibilities of both the care recipient and the provider, community care agreements (or flexible, respite or residential agreements), confidentiality and the advocate access in accordance with the Aged Care Act and User Rights Principles.

As already mentioned, the responsibilities of residential service providers and standards of care are extensively covered in the Aged Care Act 1997 (Cth) and the Principles. However, several of the more significant responsibilities and standards are considered in the following sections.

Resident agreement

A provider of residential care must offer a care recipient the option of entering into a resident agreement (or respite agreement) in accordance with paragraph 56.1(h) of the Aged Care Act 1997 (Cth). Paragraph 56.1 (h) provides that the responsibilities of an approved provider include 'to offer into a resident agreement with the care recipient, and if the care recipient wishes, to enter into such an agreement'. The agreement must comply with section 59.1 of the Aged Care Act 1997 (Cth) and Part 2 of the User Rights Principles.

A resident agreement must specify:
  • the type of residential service to be provide
  • the level of care and services
  • the policies and practices that the provider will follow when setting fees that the care recipient will be liable to pay
  • the period of time the care recipient will spend in the service if they will not be a permanent resident (for example, respite care)
  • the circumstances in which the care recipient may be asked to depart the service and what type of assistance the provider will give the recipient in order for them to find alternative accommodation
  • the complaints resolution mechanism
  • the care recipients responsibilities as a resident.
In accordance with the requirements of the User Rights Principles it must also include:
  • the details of the notice period a provider must give to a care recipient in the event that the recipient must leave the facility and other information that must be contained in the notice (that is,14 days written notice, reasons for the decision and the complaints resolution mechanism)
  • a clause that notes that the agreement can be terminated on seven days' written notice given by the care recipient to the provider
  • acknowledgement that a representative of the care recipient, an advocate or community visitor must have access to the residential service and the details of that access
  • the provision of a copy of the Charter of Resident's Rights and Responsibilities
  • provision for the secure life tenure of the care recipient (this must be read in conjunction with section 56-1 (f) of the Aged Care Act 1997 (Cth) and Part 2 section 5 of the User Rights Principles)
  • any other matters negotiated between the approved provider and the care recipient.
Section 59.1(3) of the Aged Care Act 1997 (Cth) states:
'A resident agreement must not contain any provision that would have the effect of the care recipient being treated less favourably in relation to any matter than the care recipient would otherwise be treated, under any law of the Commonwealth, in relation to that matter'.

The provider must ensure that the terms of the agreement treat the provider and the care recipient as equals, be expressed in plain language so it is readily understandable and assist the recipient or their representative to understand the terms of the agreement.

Entering into the agreement is not compulsory and every care recipient should obtain independent advice before signing any document relating to their residential care especially if they are at all uncertain of its nature or content. If the agreement contains provisions that are contrary to the requirements of the Act and the Principles, it should not be consented to without first addressing these provisions. Assistance can be obtained from an aged care advocate or a community legal service.

See Useful contacts below.

It is also important to note that home care agreements and flexible care agreements must also be offered to recipients of each particular type of care. Home care agreements must comply with the requirements of sections 56.2 and 61 of the Aged Care Act 1997 (Cth) and Part 3 of the User Rights Principles and flexible care agreements must comply with section 56.3 of the Aged Care Act 1997 (Cth).

No agreement

As noted above, while the Aged Care Act 1997 (Cth) and User Rights Principles provide that care recipients must be offered the right to enter into agreements this is optional. Regardless of whether or not a recipient chooses to enter into an agreement, their rights remain protected under the Act and Principles.

Fees and agreements

Fees generally

All residents are required to pay daily care fees as a contribution to their daily living costs, such as personal care, meals and nursing services. A residential care resident cannot be requested to pay more toward the cost of their care than they can afford. In reality, the majority of residential care residents pay much less than the real cost of their care.

Fees and payments are dealt with in Chapter 3A of the Aged Care Act 1997 (Cth).

Care recipients contribute to the cost of their care by paying resident fees or home care fees (See Part 3A.1). Care recipients may pay for, or contribute to the cost of, accommodation provided with residential care or eligible flexible care by paying an accommodation payment or an accommodation contribution (see Part 3A.2). Accommodation payments or accommodation contributions may be paid by:
  • daily payments; or
  • refundable deposit; or
  • a combination of refundable deposit and daily payments.
Rules for managing refundable deposits, accommodation bonds and entry contributions are set out in Part 3A.3 of the Aged Care Act 1997 (Cth). Accommodation bonds and entry contributions are paid under the Aged Care (Transitional Provisions) Act 1997 (Cth).

Fees for residential care vary and are determined on the basis of whether an individual is a full pensioner, part pensioner or non pensioner. Some residents are required to pay an additional care fee, depending on their income and their level of care. An individual should obtain independent advice to determine the exact amount of any fees, any rules relating to fees and other chrges and the reason for the fees. Financial Information Service Offices at Centrelink can help with this process. Visit https://www.dss.gov.au/.

Advocacy Services

The Commonwealth Government, through the Department of Health and Ageing, funds an Aged Advocacy Service in each State and Territory. Services are free, independent and confidential and they can assist anyone receiving Commonwealth-funded aged care services with any concerns they may have about the services. In the Northern Territory the service in Darwin is part of the Darwin Community Legal Service Aged and Disability Advocacy Service Tel 1800 812 131 or 8982 1111 and in Alice Springs CatholicCareNT Tel 1800 354 550) or contact the National Aged Care Advocacy Line - Tel 1800 700 600.

Community Visitor Scheme

The Community Visitor Scheme was established with the aim of providing volunteer visitors who can visit a person who may be socially or culturally isolated, either in an aged care facility or in their home. Community Visitor Scheme coordinators will take account of the interests and background of the person to ensure appropriate referrals. In the Northern Territory the Community Visitor Scheme is auspiced by Anglicare, telephone (08) 8927 0057. A care recipient can self refer or friends or relatives can contact the Community Visitor Scheme to arrange a referral.

Aged care complaints

If a recipient of a Commonwealth funded aged care service is unsatisfied with the care and services received it is important to first discuss the issue with the management and staff of the facility or community care provider. If the matter cannot be resolved the complainant can seek assistance from ADAS (the Aged and Disability Advocacy Service operated by the Darwin Community Legal Service). ADAS can support the complainant to have the matter resolved. If the matter is still not resolved the complainant can contact the Aged Care Complaints Commission.

Aged Care Complaints Commission

From 1 January 2016, the Aged Care Complaints Commission Scheme moved to the Aged Care Complaints Commissioner. The Aged Care Complaints Commissioner is established under section 95A.1 of the Aged Care Act 1997 (Cth). The functions of the ACCC include:
  • the functions relating to complaints and other concerns conferred on the Commissioner by the Complaint Principles
  • to educate people about, and develop resources relating to, best practice in the handling of complaints and matters arising from such complaints.

Section 94AJ of the Aged Care Act 1997 (Cth) provides that the Complaints Principles (made under section 96-1) of the Act may provide a scheme for the management and resolution of complaints and other concerns about aged care services through which aged care is provided. The Complaints Principles may deal with one or more of a list of matters including how complaints may be received, managed and resolved.

The complaint scheme is a free service for anyone to raise concerns about the quality of care and services being delivered to people receiving Government subsidised aged care services, including residential care and supported home care, and is aimed at increasing the independence of the aged care complaints handling function by separating complaints management from the department's regulatory and funding roles. The Commissioner has no presence in the Northern Territory, with all complaints handled by the Commissioner's South Australian Office.

A complaint can be made orally or in writing and may be made anonymously or the person's name can be kept confidential (Complaints Principles sections 6 and 10). Anyone in receipt of care services or a carer, relative or staff member of a service can make a complaint to the Aged Care Complaints Commissioner.

There are some things that the Aged Care Complaints Commissioner cannot do, for example examine concerns that are not related to a service provider's responsibilities under the Aged Care Act or their funding arrangements with the Australian Government. If the Commissioner is unable to address a complainant's concerns they can be referred to, for example, the Australian Aged Quality Agency, professional registration boards or other complaints bodies.

If a complainant or service provider is not happy with a decision by the Aged Care Complaints Commissioner they can ask for the decision to be reviewed. Once the initial decision is finalised and notified the aggrieved party has 42 days to seek a review. The application for review must state the reasons for the request. A request to review a decision can be made by phone or in writing. More detailed information is outlined in the Commissioner's fact sheet Review Rights.

Request for reconsideration of decisions

Section 22 of the Complaints Principles provides a mechanism for reconsideration of decisions made by the ACCC. Subsection 22 (1) allows a complainant to apply to the ACCC for a reconsideration of a decision made under paragraph 7 (a) to take no action in respect of a complaint on the grounds set out in section 8. Section 8 lists circumstances in which the Commissioner will refuse to deal with a complaint including because the issue was not raised in good faith, or is the subject of legal proceedings, or is the subject of a coronial inquest and so-on. Subsection 22 ((3) allows a complaint by a complainant or an approved provider against a decision made under section 14 to end a resolution process. The ACCC may decide to end a complaint because the approved provider has addressed the issue to the satisfaction of the ACCC, or the issue is better dealt with by another organisation, or continuation of the resolution process is not warranted because the Commissioner is satisfied that despite reasonable inquiry by the Commissioner the circumstances giving rise to the issue cannot be determined.

An application for a reconsideration must state the reasons why the reconsideration is sought and this cannot be simply that the applicant disagrees with the original decision and be made within 42 days of notification of the original decision. The ACCC then has 28 days to either confirm the original decision or decide to undertake a new resolution process to be completed within 90 days of receiving the application for reconsideration.

Complaints - "reviewable decisions"

In addition to the complaints mechanism under the Complaints Principles, the Aged Care Act 1997 (Cth) provides that certain decisions (that is, original decisions) under the Act are reviewable decisions. A list of reviewable decisions is at section 85.1 of the Act and includes a decision to reject an application for an approval as an approved provider made under subsection 8-1 (1) of the Act, a decision to reject an application to approve a day as a variation day made under subsection 17-7 (3) of the Act, a decision to limit a person's approval as a care recipient made under subsection 22-2 (1) of the Act and so-on. If the Secretary (or the Secretary's delegate) has confirmed, varied or set aside a reviewable decision as the result of the review procedures section 85.5 of the Act, a person whose interests are affected by the review may make an application to the Administrative Appeals Tribunal (AAT). The AAT is able to provide a further review of the reviewed ('reviewable') decision pursuant to section 85.8 of the Act.

See Useful contacts below for contact details.

Compulsory reporting

Approved providers and their services are required to report suspicions or allegations of assaults and to report unexplained absence of aged care recipients. Reports are to be made to the Department of Health and can be done electronically.

There are five key elements of compulsory reporting:
  • all approved providers of residential aged care must report all allegations or suspicions of reportable assaults.
  • reports must be made to the police and the department within 24 hours of the allegation or suspicion that an assault has occurred
  • the approved provider must protect the identity of any staff member who reports an assault
  • if the approved provider fails to take action the department may take compliance action
  • compliance with compulsory reporting requirements is monitored by the Australian Aged Care Quality Agency.
A reportable assault is:
  • unlawful sexual conduct with a resident of an aged care home, or
  • unreasonable use of force on a resident of an aged care home
Approved providers must report the unexplained absence of a resident to police within 24 hours. A resident is considered missing when they are absent and the service is unaware of any reason for the absence. The approved provider must inform the department that a report to police has been made. Failure to meet compulsory reporting requirements may result in the department taking compliance action. Guides for reporting reportable assaults and unexplained absences are available on the Department of Social Services website at https://www.dss.gov.au/ageing-and-aged-care. Reports are to be made to the federal Department of Health.

Reports can be made by telephone to the Department of Health in South Australia on 1800 081 549.

Accountability and sanctions

Chapter 4 of the Aged Care Act 1997 (Cth) deals with the responsibilities of approved service providers. These provisions must be read together with the Sanctions Principles 2014. Service providers must comply with the various requirements in Chapter 4 including: part 4.1 which deals with quality of care, part 4.2 which covers user rights and part 4.3 which concerns accountability and deals with such matters as the reporting of alleged and suspected assaults, ensuring that staff are not 'disqualified individuals' and the keeping of records. If a service provider is not complying with one or more of the responsibilities the Secretary may impose sanctions on the approved provider under part 4.4 which deals with the consequences of non compliance. In deciding whether to impose sanctions on an approved provider the Secretary must consider the following matters:
  • whether the non-compliance is minor or serious
  • whether the provider is a repeat offender
  • whether the provider failed to comply with any undertaking given to remedy the non-compliance
  • any other matters specified in the Sanctions Principles including:
    • consideration of the steps taken by the provider to ensure that their key personnel are suitable
    • the appointment of an advisor or an administrator to the provider
    • the period of any sanction and the matters to be considered when the secretary is lifting a sanction.
The types of sanctions that can be imposed by the Secretary include revoking or suspending a provider's approval to provide services, a restriction on the type of services or care recipients, imposing a prohibition on any further allocation of places under certain sections of the Aged Care Act 1997 (Cth) and revoking or prohibiting the granting of extra services status in respect of residential care services.

In relation to serious and continuous failure to comply with responsibilities, a provider may have its certification revoked or suspended, it may be required to repay some or all of its grants and/or be prohibited from charging accommodation bonds or charges. There are also other sanctions available to the Secretary under the Sanctions Principles in certain circumstances.

The Aged Care Act 1997 (Cth) provides for 'authorised officers' being officers of the department appointed as authorised officers for the purposes of the Act. Authorised officers have wide ranging powers to investigate suspected non compliance with the Act. Section 91.1 provides that an authorised officer may, to the extent that it is reasonably necessary, with consent enter the premises of an aged care service provider at any time of the day or night or any other premises (including residential premises ) between 9am and 5pm on a business day to exercise monitoring powers. Monitoring powers are defined in section 90.4 of the Act and include such things as taking photographs and inspecting, examining and taking samples, inspecting records and taking extracts from or making copies of records. An authorised officer in lawful occupation of premises can ask for assistance and this may be refused however refusal by an approved service provider may result in sanctions. An authorised officer can apply to a magistrate for a monitoring warrant or an offence related warrant, if required.

Application of the Criminal Code

Section 96.6 of the Aged Care Act 1997 (Cth) provides that the Criminal Code Act 1995 (Cth) applies to all offences against the Aged Care Act.

Retirement villages

Other accommodation, generally private, is also available to individuals and it is not generally subsidised by the Commonwealth Government. An example of this is a retirement village. There may be some exceptions, however, if a retirement village also has supported residential services that are provided to a care recipient within the village after an ACAT assessment. This does not apply to all retirement villages and an individual should make their own enquiries with the management at the specific retirement village. Because a person is a resident in a retirement village and there is an aged care facility within that complex, it does not necessarily follow that someone needing to move from the village to the nursing home is guaranteed a place. This would depend on availability.

If a person is considering moving to a retirement village it is recommended that they visit the village or a number of villages and talk to the management regarding residents' contractual rights, and talk to residents, if possible, about the living environment to ensure the village will provide them with a suitable long term outcome. For many people the move to a retirement village means the sale of their home in a familiar neighbourhood where they have lived for many years and where they may have many contacts. Deciding to move into a retirement village is an important decision. Legal and financial advice should be obtained to ensure a complete understanding of the consequences of the move including the cost of exiting the village if it is found not to be suitable.

In the Northern Territory, the regulation of Retirement Villages is covered by the Retirement Villages Act 1995 (NT) and the subordinate Retirement Villages Code of Practice (the Code). The Retirement Villages Act 1995 (NT) sets out the framework in which retirement villages are to operate and covers issues such as the protection of the interests of the residents, resident owners and management groups as well as dispute resolution mechanisms, content and termination of residence contracts and accommodation transfers. The Code complements the legislation and deals with issues such as the promotion and sale of village accommodation and also expands on the issues covered in the Retirement Villages Act. The Commissioner of Consumer Affairs is responsible for the administration of the Act and the NT Office of Consumer Affairs can be contacted for further information about the administration of the Retirement Villages Act and the Code.

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