During the pandemic, Australia's aged care regulator has been toothless and plainly negligent
In October the royal commission into aged care quality and safety castigated the aged care regulator as “unfit for purpose”, taking aim at its dismal track record in detecting and deterring neglect. The regulator was “distant and ineffectual”, the commissioners wrote. Too often its interests were aligned with those of providers rather than vulnerable elderly residents.
This assessment, made pre-pandemic, came off the back of a slew of aged care scandals with familiar hallmarks: negligent providers repeatedly failing standards with few consequences; horrific neglect uncovered at facilities that had passed accreditation with flying colours; a near total lack of public transparency about complaints against providers.
A year on, the aged care regulator’s systemic dysfunction hasn’t been rectified; if anything it has been magnified by the pandemic. Its anaemic response to the threat of outbreaks in aged care – coupled with the federal government’s lack of a national plan – has left aged care providers fundamentally unprepared for the challenges posed by the pandemic.
In March, when there was ample international evidence that Covid-19 was disproportionately affecting the elderly and nursing homes were at unique risk, the regulator halted unannounced spot checks of residential aged care facilities, leaving the sector without oversight when it was most needed.
In a stark abrogation of its duties, it allowed providers to self-assess whether they were prepared for Covid outbreaks via an online survey, rather than deploying inspectors to independently verify whether PPE usage and infection control protocols were adequate. Effec
tively, the sector was left to regulate itself.
Predictably, aged care providers proved unreliable assessors of their own preparedness: 99.5% reported their readiness was either satisfactory or best practice. Newmarch House, which sustained an uncontrolled outbreak that ultimately resulted in the death of 17 residents, rated its preparedness as optimal – in retrospect, a disastrous miscalculation. Another 372 providers declined to respond to the regulator’s survey. In the meantime, crucial gaps in knowledge among the aged care workforce went unaddressed.
At the royal commission’s special hearing into Covid-19 in aged care, the head of the regulator, commissioner Janet Anderson, was asked whether she was surprised by providers’ rosy self-assessments. Overall, there did seem to be “a large degree of confidence that providers were ready in the event of a pandemic”, she conceded.
This overconfidence should have been a red flag to the regulator, which is well versed in the sector’s endemic problems, such as widespread neglect, abuse, malnutrition, and over-reliance on chemical and physical restraint. The regulator should have foreseen that the sector’s existing issues – along with its casualised, under-skilled and chronically understaffed workforce – would prove a powder keg when combined with a deadly pandemic, and intervened accordingly.
Instead its inexplicable decision to leave the assessment of providers’ pandemic readiness in their own hands has had catastrophic consequences: 673 older Australians in residential aged care have now died. They represent more than 75% of Australia’s coronavirus death toll.
Even as Covid-19 has ravaged Victorian aged care homes resulting in more than 4,000 infections of staff and residents, the regulator has failed to make in-person visits. Since the onset of the pandemic, the regulator has inspected a mere 13% of aged care homes with outbreaks: 30 homes. Many facilities with outbreaks received perfect accreditation scores, some in this calendar year. How can the regulator plausibly claim to know whether the conditions that produced these outbreaks have been rectified in absence of a site visit?
More concerningly, the regulator has sanctioned fewer than 10% of facilities with outbreaks. Many of the worsthit facilities have escaped without sanctions, including: BlueCross Ruckers Hill, which had 132 cases among residents and staff resulting in 12 deaths; Arcare Craigieburn, with 105 cases and 16 deaths; CraigCare Pascoe Vale, with 104 cases and 16 deaths; Mercy Place Parkville, with 104 cases and 22 deaths.
Even after severe outbreaks, the regulator has continued to outsource its intelligence-gathering: of the 20 sanctions it has issued in Victoria, only six were issued as a result of in-person visits from the regulator. The rest were issued as a result of information reported by health authorities. A number of providers have even been reaccredited without site visits.
Australia’s aged care regulator has long been criticised as a toothless tiger. Unlike its counterparts in the United States and the UK, which use transparent star rating systems and publish detailed information on provider performance, Australia’s regulator shields providers from scrutiny and conceals vitally important data about complaints, staffing levels, abuse and assaults at individual homes from the public.
It wields neither stick nor carrot to bring providers into line: its accreditation standards are either “met” or “not met” with no gradations of quality, meaning providers are given no incentive to do more than the bare minimum.
But during the pandemic, the regulator has been worse than toothless – it has been plainly negligent. Its failure to implement an infection control monitoring program until August is irresponsible. Its decision to allow providers to “self-assess” their readiness for the pandemic is indefensible. Families who have lost loved ones will rightly ask whether those deaths may have been averted had the regulator acted with greater urgency or had more boots on the ground.
The Covid crisis has laid bare the egregious inadequacy of our aged care regulatory regime. It’s past time for the regulator to be disbanded, and an empowered regulator installed in its place: one that prioritises residents’ wellbeing and human rights over the current culture of secrecy.
Transparency, accountability and compassion must be its guiding principles. This is the very least older Australians in aged care deserve.