The Guardian Australia

During the pandemic, Australia's aged care regulator has been toothless and plainly negligent

- Sarah Holland-Batt

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.

 ?? Photograph: Carly Earl/The Guardian ?? The aged care regulator’s systemic dysfunctio­n hasn’t been rectified; if anything it has been magnified by the pandemic.
Photograph: Carly Earl/The Guardian The aged care regulator’s systemic dysfunctio­n hasn’t been rectified; if anything it has been magnified by the pandemic.

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