Neglect: the Interim Report of the Royal Commission into Aged Care Quality and Safety

08 November 2019

Gillian Davidson
Partner
Sparke Helmore Lawyers

Gillian Davidson
Partner
Sparke Helmore Lawyers
t: +61 2 9373 3535

Gillian specialises in general commercial insurance with deep expertise in liability claims. As a senior partner, Gillian leads Sparke Helmore’s national liability team of over 50 lawyers. Regularly acknowledged in legal directories, Gillian was most recently recognised in the Legal 500 Asia Pacific edition 2022, where she was valued as "extremely experienced and [someone who] always gets to the crux of the matter". Gillian is passionate about the contribution that policies related to Diversity and Inclusion make to the wellbeing of employees and clients. She is the Chair of the firm's Diversity & Inclusion Advisory Committee. Her commitment to the promotion and development of women is well known. She is the founding partner of the firms Six Degrees Network, which provides leadership, mentoring and networking opportunities highlighting the inclusion of women. She has also been a member of the firm’s Board. Gillian is the current Chair of Global Insurance Law Connect (GILC). GILC is a diverse global network of boutique law firms with insurance expertise. Each member firm is embedded into its own insurance market and has deep local knowledge, aimed at helping clients with complex cross-border legal challenges. Each of the member firms has a real passion for the industry; the network consists of 21 firms in 23 countries spread across five continents, and the footprint touches every area of insurance law.

The Commissioners of the Royal Commission into Aged Care Quality and Safety, Richard Tracey AM, RFD, QC and Lynelle Briggs’s AO, completed their Interim Report in September 2019, shortly before Commissioner Tracey passed away in October 2019. Newly appointed Commissioner Pagone QC was not involved in the preparation of the Interim Report. The Report was submitted to the Governor-General on 31 October 2019 and was tabled in Parliament that day.

The report entitled Neglect tells of “a shocking tale of neglect” in the Aged Care Industry and finds that a fundamental overhaul of the design, objectives, regulation and funding of aged care in Australia is required.

Urgent action required

The Commissioners note that formal recommendations will be reserved for the Final Report due on 12 November 2020, but that they see no reason to delay action in the following three areas:

The provision of more Home Care Packages to reduce the waiting list for higher level care at home—the Commissioners noted that the funding increases announced following the Royal Commission will not keep pace with the further increase in demand such that even further funding needs to be allocated to prevent older people dying while waiting for Home Care Packages.
To respond to the use of chemical restraints in aged care, including through the seventh Community Pharmacy Agreement—the Commissioners concluded that the ongoing use of restrictive practices in aged care (including the provision of chemical restraints) amounts to severely substandard and unsafe care. They note that current negotiations by the Government regarding the seventh Community Pharmacy Agreement may partly correct this issue.
To stop younger people with disabilities going into aged care (particularly in the light of the existence of the NDIS, which ought to provide alternative options for younger people)—the Commissioners criticised the government’s Younger People in Residential Aged Care Action Plan and agreed with the recommendations of Dr Morkham and Dr Gauntlett that, subject to some limited exceptions, by 2022 no younger people should be entering residential aged care and by 2025 no younger people should be living in aged care (except for those who choose to be there).

The Second Volume of the Report addresses the Commissioner’s findings with respect to the evidence heard and the case studies considered throughout the Commission (up to the Darwin and Cairns Hearings in July 2019).

What's to come?

The Interim Report identifies the following systemic problems to be resolved by way of recommendations in the Final Report:

the system is designed around transactions, not relationships or care
the system minimises the voices of people receiving care and their loved ones
the system is hard to navigate and does not provide the information people need to make informed choices about their care
the system relies on a regulatory model that does not provide transparency or an incentive to improve, and
the workforce is under pressure, under-appreciated and lacks key skills.

The Interim Report also provides some insight into the direction the inquiry will take over the next year, and has identified the following topics to be addressed:

the funding of aged care and the impact it has on how care is delivered
integration and transition between different parts of the aged care system, including home, residential and respite care
governance and accountability in aged care
how to identify and encourage innovation and improvement in aged care
models for the delivery of aged care
system architecture and design to support a good quality of life for people using aged care services, and
how best to deliver aged care in a sustainable way.

The Commission has engaged the data and research team in commissioning a series of pieces of research, which will inform those and broader topics that influence the aged care system, including community attitudes and accessibility of services. The Commission will continue to use case studies to highlight the topics allocated to the hearings. At this stage, hearings in Hobart commencing 11 November 2019 will address the topic of the aged care operations of selected providers. A hearing in Canberra is also set to commence on 9 December 2019 to address the interfaces between the aged care and the health care system.

We will bring you further updates on the progress of the Commission as it unfolds over the next 12 months.

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