The government has confirmed the new Aged Care Act won’t be enacted until July 2025, after several years of consultation and delays. Attwood Marshall Lawyers Wills & Estates Senior Associate and Accredited Aged Care Professional Larisa Kapur discusses the expected changes to government-funded aged care services that she’s keeping an eye on as the new legislation is finalised.
A rights-based approach
The rollout of the long-awaited new Aged Care Act will mark a significant shift for the funded aged care sector, bringing wide-ranging changes that will impact everyone who accesses or delivers aged care services.
The Department of Health and Aged Care released a 347-page exposure draft of the new Aged Care Bill in December 2023, alongside a consultation paper summarising the Bill and asking for feedback on the proposed changes.
Given the gigantic task of reviewing the proposed legislation, the government ended up extending the consultation and has now confirmed that the final Act will not commence in July 2024 as planned. Instead, it will be a year later in July 2025.
Significant uncertainty remains about how the long-overdue changes will take their final form, but the government has been clear that it wants to legislate a holistic approach to aged care services.
All signs are pointing to one principal Act, with one set of rules, a statement of rights, a statement of principles, and a simple point of entry for residents. Eligibility requirements are also expected to be updated and assessment processes streamlined.
The approach contrasts sharply with the current fragmented system, which consists of multiple pieces of legislation, diverse entry routes, vague eligibility criteria and numerous assessment processes. While the current Aged Care Act is seen to largely focus on providers and funding, the incoming reforms are expected to put the focus on the needs of older people who access care services.
Here, we summarise some of the big changes expected to hit the aged care sector when the new Act does finally come into force.
1. A new definition for High Quality Care
The government is putting “high quality care” at the forefront of the new Act. According to the draft legislation, the delivery of funded aged care services by a registered provider to an individual is considered high quality if it:
- prioritises the individual’s needs,
- upholds their rights,
- focuses on kindness, compassion, respect, and tailored care,
- supports their physical, cognitive, and social well-being, and
- ensures cultural safety and worker empowerment.
This list is not exhaustive, and the definition features several other expected behaviours, which all push workers “to aim higher and not just comply with minimum requirements.”
However, it is not expected that there will be a duty to provide high quality care. Rather, it would be something that providers work towards over time.
According to the consultation paper, some providers may need to have an improvement plan in place to show the department how they are working towards delivery of high-quality care. However, the idea is that everyone who works in the industry is undergoing “continuous improvement,” with no place for substandard or low-quality care.
2. New legal underpinning
The draft legislation has a clear emphasis on human rights, specifically highlighting the position that older people deserve to be treated with dignity and respect. It aligns with Australia’s commitments to international agreements like the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities.
The Department of Health and Aged Care said that by referencing these international conventions, the new Act will gain its legal authority through the “external affairs power.” This is a departure from the current legislation, which relies on the Commonwealth’s “corporations power,” and marks a significant shift from focusing primarily on providers to prioritising the rights of individuals.
The intention is to strengthen the human rights aspect of the legislation, in turn potentially creating an opportunity for new genres of registered providers.
3. Single assessment process
The 2021 Royal Commission into Aged Care Quality and Safety recommended an overhaul of the assessment process after finding that older people with changing needs could be passed between assessors, leading to a complex, duplicative system with inconsistent assessments and inefficient services.
The new Act will have a single assessment process, with assessors trained to carry out all assessments across both home and residential care, independent to the aged care provider.
The hope is that this change will lead to proportionate and more accurate assessments of residents’ needs, quicker access to urgent services and a focus on wellness and reablement.
There has been some criticism, however, of the way the federal government has handled the shift from the existing assessment process, which is run by state Aged Care Assessment Teams (ACAT), to calling on the private sector for tenders earlier this year. For example, experts recently told ABC News that they are concerned about computer algorithms determining the level of care needed and that efforts to overturn any decisions will be difficult.
4. Statement of Rights
Another key change is the inclusion of a new Statement of Rights in the Act, which emphasises principles like consumer choice, dignity, and safety – aimed at providing a clearer framework for older individuals accessing care services.
The idea is for older people to be better informed of the standards they can expect from providers and aged care workers, which in turn should enhance transparency and accountability within the sector.
The new statement of rights, in addition to strengthened Aged Care Quality Standards, should also empower individuals to exercise choice and control over how the services they need are delivered.
The exposure draft says that the statement of rights does not create rights or duties that can be enforced by court or tribunal proceedings. Instead, the plan is for pathways to be made available for residents to raise complaints in a process aimed at “continuous improvement.” If a resident thinks their rights have been breached, they could also escalate their complaint to the Aged Care Quality and Safety Commission to pursue “early intervention, conciliation or restorative outcomes.”
Individuals will also be offered better protection with new whistle-blower and anti-victimization protocols.
In serious cases, other compliance and enforcement actions will be available.
5. Statement of Principles
Alongside the new statement of rights for residents, a new statement of principles will steer the decisions, actions and conduct of everyone operating in the aged care system.
Outlined in section 22 of the exposure draft, the principles focus on four main areas: prioritising the well-being of older people; recognising the contributions of workers and carers; promoting transparency and sustainability of the sector; and ensuring the aged care system continues to improve.
There is a big focus on aged care workers being empowered to support innovation, improvement, and the delivery of high-quality care, with the statement of rights and the statement of principles intended to complement each other.
6. New registration process
The Aged Care Quality and Safety Commission will expand its reach, requiring providers including those that deliver National Aboriginal and Torres Strait Islander Flexible Aged Care and Commonwealth Home Support Programmes to be registered under the new Act and regulated by the Commission. This means more people will benefit from regulatory protections.
New registration categories will also see a move away from a one-size-fits-all approach for approved providers.
The registration process is instead expected to be based on the level of risk associated with the type of care providers intend to deliver – termed a risk-proportionate approach. Lower-risk services will need to declare that they meet requirements, aiming to ease entry into the market, while higher-risk services will need to provide comprehensive evidence demonstrating that they comply with quality standards, subject to an audit.
The streamlined process aims to increase the supply of aged care services, offering older Australians more choice in care providers.
7. New regulatory and enforcement framework
There will be a new regulatory model that places greater emphasis on “relational regulation”, which emphasises more meaningful engagement between stakeholders.
Broadened regulatory powers include:
- The variation, suspension, and revocation of a provider’s registration,
- The banning of either providers or individual aged care workers,
- The power for the Commission to enter premises without consent,
- The ability to issue civil and criminal penalties against providers for significant failures that have resulted in death, serious injury or illness,
- The appointment of a statutory manager to take over management of a provider that poses unacceptable risk to care recipients, and
- The appointment of a voluntary administrator if a provider is trading insolvent or breaching other applicable laws.
The exposure draft outlines new statutory duties for both registered providers and responsible persons, as well as compensation pathways to offer redress to affected individuals with a six-year statutory limitation period to bring a claim.
8. Phased approach
In its December exposure draft, the department said that the new Act will be the first of several phases of legislative reform, working towards meeting the recommendations from the Royal Commission into Aged Care Quality and Safety.
The new Act “sets out the foundations of this new system,” focused on the safety, health and wellbeing of older people and putting “their needs and preferences first,” the draft said.
One of the next big phases will be another Bill to introduce a new Support at Home program, originally slated for July 2025 but likely delayed due to the uncertainty of the Aged Care Act commencement date.
The Health Department has also proposed a review of the Act five years after it is enacted, to ensure that the reforms are working as intended.
Attwood Marshall Lawyers – helping individuals navigate the aged care sector with confidence
With in-depth knowledge of the aged care sector, Attwood Marshall Lawyers is one of the few law firms boasting two Accredited Aged Care Professionals who are ready to provide up-to-date and trusted advice to the elderly and their families when making important decisions about aged care.
Whether you’re considering retirement living options, navigating aged care agreements, or need to revise your estate plan as you transition to care, Attwood Marshall Lawyers is here to help.
To explore your options, please contact our Aged Care and Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
