Senate Community Affairs Legislation Committee, , 2:57:12 to 3:27:21
The committee explores the legal basis for visitor bans in aged care facilities and the treatment of Stolen Generations redress payments in asset testing.
Topics: Human rights, Health
Speakers: David Pocock, Liz Hefren-Webb, Nicole Jarvis PSM, Malcolm Roberts, Hon Malarndirri McCarthy, Blair Comley PSM, Dorinda Cox, Emily Harper, Greg Pugh, Julia Atkinson, Robert Day, Sonja Stewart, Speaker 28, Susan Trainor
>> Thank you, Chair, and thank you for appearing today. Good morning. It's still morning. Is uh the Age Care Quality and Safety Commission here, >> Hi there, Miss Miss Hefron Web. >> Thank you. I think my questions are fairly straightforward, so we should be able to move through them pretty quickly. On what lawful basis does the ACQSC permit Commonwealth funded age care facilities to impose visitor bans where there is no public health order, no tribunal decision or no resident
>> Can you just repeat that last bit of your question? Where where do we allow them to impose visitor bans where there is no
>> no public health order, no tribunal decision or no resident request?
I'll have to take that question on notice, I think. Okay. >> Um, are you is there a specific circumstance you're referring to?
>> No, not I don't want to bring it up now,
but
>> constituents are asking us, does the ACQSC accept that a provider may unilaterally ban a family member as a matter of operational discretion? And if so, where is that power derived from in law or
I might just um ask um Miss Mets to come forward who heads up our um sector capability and regulatory strategy area. Um so uh the the I am aware that there's cases where uh family members have caused are alleged to have caused issues or disruption and uh the subject of the service maybe uh seeking that they don't attend. But I'm not aware of a ban per se, but I'll just see if this meant
>> Thank you. What I'd like to know is where is the their power derived in law and legislation?
>> Senator Mel Mets, deputy commissioner, um under the age care act um residents actually have a right to visitors um and people who are important to them. So, um, there's no legal basis under the age care act for a visitor to be banned. In fact, it's the opposite that people have the right to have visitors. Um, we often through our complaints process will work through some of those difficult issues that um, Miss Hefron Webb mentioned where providers have difficult situations with certain family members. So we do work through those with both the providers and the families to resolve those issues.
>> Thank you. H how many complaints has ACQSC received since 1st of January relating to family or visitor bans in residential age care facilities?
>> Uh we would have to take that on notice.
>> That's fine. >> Of those complaints, how many resulted in enforcement action, compliance notices, or findings of non-compliance with the age care quality standards?
Again, we'll have to take that one on.
>> I can understand that. Does ACQSC consider the imposition of an unjustified visitor ban to be a serious breach of residents rights? And if not, >> I think you've already answered that.
>> Uh yes, Senator, we would consider it to be a serious breach of rights.
>> Is Commonwealth funding continued to provide users while they are subject to unresolved complaints regarding unlawful
So, Senator, um we have complaints um that cover a wide range of um matters and our focus is on uh working with the provider and the complainant and their family and carers to uh resolve those matters as quickly as possible to make um necessary restoration. um if needed to undertake mediation or other activities. We wouldn't um link the we we have no um responsibility for the funding of the facilities. That's the department. Um and so our um enforcement activities um go to things like enforceable undertaking, civil penalties, etc. So there's no direct link between um if we consider that there's you know that a provider has failed to respect someone's rights and a funding lever we would be taking action through other means.
>> You have the the authority to do that. Yes. >> Okay. Thank you. Has the department of health issued any guidance to providers clarifying that visitor band cannot be used as a substitute for proper complaints management or staff
I'm not aware whether or not direct guidance on that matter. We can follow that up for you though.
>> uh good morning Senator Roberts day first assistant secretary quality assurance division. We haven't provided explicit guidance on that specific issue. uh we have provided guidance on the impact of the statements of rights that came into effect with the new new act including as as Miss Mets indicated the right to have access to individuals that are important to an age care resident.
>> Thank you. Last question chair in the context of the new age care act and rights based reforms what steps are being taken to ensure residents are not isolated from family due to provider convenience disputes or risk aversion.
So um we um have a number of mechanisms by which we are assessing the extent to which providers are respecting the rights of residents. Obviously complaints is one source of information that we can follow up on. We also receive reports.
>> That's complaints direct to you.
>> Yes. Correct. As well as serious incident reports that come through to us. We also, as I mentioned before, undertake audits of all residential care facilities every three years. And in that, we will be uh interviewing a number of residents, uh family members, staff to make sure that residents rights are being upheld and respected. So, um we also receive anonymous complaints, um tip offs, whistleblowing. So, there's a range of ways that those matters can come to our attention. If we were made aware that uh someone was someone's right to have family or friends or loved ones visit them was being impeded, we would take that extremely seriously.
>> Thank you. Where do you have offices around the country? >> Now, if someone in central Queensland made a complaint, how would you address it? Through the phone.
>> Uh so, initially we do uh address matters uh over the phone. But if we if the matter raises significant concerns, safety concerns um for us, we will send a team and we can do an an unannounced visit of a facility. So we have um staff who are trained to go and assess what's happening, find out, investigate. So our staff are based in um all the capitals around Australia. So in that case, if it was Central Queensland, we'd send a team probably from our Brisbane based staff.
>> Okay. Thank you, chair. I just want to put on the record that I've rushed my questions because of another deadline, but I want to acknowledge the the three respondents. They've been very prompt and and and concise with their answers. So, thank you very much.
>> Thank you, Senator Roberts, and thank you for using your eight minutes very efficiently for uh for us. That's uh very generous of you today. Um I think we will go to uh Senator Puk.
>> Thank you. Thank you chair. Um I just wanted to uh circle back to Barangiri be before moving on to some other um a cam baron who was obviously tuning into estimates sent me an email um just over the over the break um and uh they say that Barangiri does not receive uh CHSB funding so a CHSP assessment won't provide access and so if a person wishes to access Barangiri they'll need to have um either NDIS funding a grandfathered home care package or pay for it privately. I was wondering if that's the case.
>> Senator, it's correct that Bingiri is not a CHSP funded provider.
>> So, Mr. Pew, why were you telling me that someone with a supported home package could get a CHSP assessment and then access Baron Giri?
>> Yeah. And thanks, Senator. So I believe the framing of the question was uh around access to cottage restbite but I do accept I should have clarified around borrower and that was an oversight. So
>> So you've known all along that this is this is the case.
>> Senator I could add and and I suppose to to probably clarify um further on Mr. Pew's previous response for for your constituents if they are seeking to access uh cottage rest and for you you're having those conversations in the context of barangiri. um if they are seeking to access cottage rest bite as Mr. Um Q recommended the best course of action would be to um contact my age care. My age care can provide them with a referral to cottage restite which is at this point in time funded through CHSP. So as I just stated baring is not a CHSP provider. However, there is a CHSP provider in ACT and that is CARES
ACT. But banging is half of our restbite beds. And so if you are now on a supported home package, you don't have access to half of our restbite beds in the ACT. How >> how people know we're soft under this?
>> I I I can clarify further. So for those who are on support at home um there are some circumstances in which a support at home um participant can also access the CHSP service and this is one
>> yes but they're not a CHS
>> not through bar and giri but if they are a support at home client they need a CHSP service through cottage rest pipe they are permitted to access both programs and I accept um that's not through boring giri at this time it would be through carers ACT.
>> How do we change this? Like this is just just seems like a ridiculous system where you exclude uh people from half of the restbite beds in the ACT.
>> Uh Senator, so probably back to my previous um response before the break. Uh this does form part of our annual review process. So that's the mechanism by which we can change it.
>> When's the annual review due to be done?
um well we're 3 or four months into the the program but we provide advice to government on a regular basis around um some of the implementation or other issues that we're seeing. So um it'll be ultimately be a decision for government.
>> have you provided that advice to uh to government?
>> I mean we provide a range of advices to government senator. I can't go into the specifics. because they're deliberate deliberative matters for government. Senator
>> um on page I think what is it 668 expresses concern that advice to government is not generally accepted as a grounds for a PI claim. Um and there was actually a federal court case that looked at this.
>> Have you had the opportunity to to meet with the minister to work through these issues? Clearly you've had um direct um requests from your constituents. I'm just just trying to find a a way through with you. That's
>> uh No. And I believe constituents have been trying to raise out raise this issue. Um
>> I'll I'll certainly find out more for you.
>> Okay. Thank you.
>> To to your question, Senator, you're right. The general line we would take is that we don't comment on the content of
>> Thanks um secretary. I I guess I know that's kind of has become the status quo but that's not actually in line with the
>> I think if we're providing deliberative advice to government, we wouldn't normally say which way what we've
I know you wouldn't usually do that, but I'm just pointing out that that the federal court actually rejected that. And we saw um in the Railway Dead Royal Commission, Commissioner Holmes really taking exception to this sort of catch all advice to government thing that we hear I think far too often. Um, and so I just want to put on the record like I I I think we need to reassess and do do better here because um my understanding is that if you want to do that, you actually have to make a PII claim and we go through that process and I know that will kind of slow up this whole um estimates process, but I don't know it just it just it's it's frustrating to continually just hear this. We can't, you know, yesterday I was asking questions and um was told well that may form advice part of our advice to government so we can't go into that.
>> Yes. And I think um just on that note, Senator PCO, you um you did try and prosecute this last night in legal and constitutional affairs and I think officials were quite clear in in saying that if it is advice or forms advice to government and there is grounds for a PII claim uh that they will submit that. Um what I heard from uh Mr. commonly just then is is that in fact it will or may form part of that advice. Uh I what I hope is that if you have a question on notice that goes to the heart of some of these that you would put that in and that if it is grants for a PII claim that then can be applied for um and the uh committee uh as a whole will consider that. So um that's my understanding of the process. So um uh happy if if the officials wanted to take that on notice and and all um but what I heard um is that if it is forming part of that advice to government that there are grounds for them to look at it under the
>> Thanks. Thanks chair. Um so just to finish up on Barangir and so minister um uh my office has actually asked the minister about this and we haven't received a >> we haven't received a response. Um he never replied to that.
>> I'll follow up on that Senator Per. Um
and I guess I'm just you know when it comes to Cambar's access to restbite >> uh the commonwealth and as I said I welcome this investment is investing 10 million to replace bar >> absolutely >> but in the meantime people can't actually access it under this new supported home scheme >> uh like I I find this I find this quite quite shocking and in a jurisdiction where we have one facility providing 50% of restbite beds if you're on a support at home package, you can't um you can't access that. So, can we get some sort of commitment from the government?
>> Just listening to you and and hearing the um exchanges between yourself and and officials. I'll certainly follow that up. But I'm also conscious that with uh again just listening to and looking at my notes on it with Baron Guri, they're due to close and that was a decision by the ACT government. Is that correct? >> Yeah. Okay. I'll I'll follow it up.
>> Thanks. Um thank you. I'm keen to ask a bit about um age care and and the department's um data around people in hospital beds. Um I'm interested if if the department has any indication of the financial status of individuals waiting in hospital beds for a place in resi age care
clarify your question the financial status of the older people in hospital
>> yeah would would they be considered as having low income uh or low assets
think at a sort of widely answering that
question that there would be an array
range of different financial
circumstances. Um the older people that are in hospital um I'm not sure
>> do you have any data on that
>> data? Uh we don't. So the comwalth does not collect data on older people in hospitals or their bed days. Um so it's actually the states and territories that collect that >> Yeah. So so one of the elements that we do here is around concessional status but it can be for any number of other reasons um such as complexity of care processes that take time. uh but we don't currently have a a consistent data collection around that reason.
>> States and territories don't feed that data to you as part of the hospital agreement or other
>> not in a consistent way. So we are working with them on a definition of delayed discharge which will allow consistent data collection and we hope to have that finalized in 2026 but at the moment no there is no consistent data collection.
>> Will that take into account um whether they are sort of low income or low assets for their their move to resiare?
So the definition is under development but it does include a whole range of internal and external factors to help us to understand all of the drivers and financial uh capacity will be part of >> Senator just it's important to note that um it's quite common for a person to not have their means assessment for residential care until after they've entered care. So regardless of the methodology it would remain very much the case that the the concession oral status of a person in a hospital bed is unknown.
U it's been raised lots of concerns have been raised with me um about this that people with low means are waiting longer uh or find themselves in hospital waiting for residential age care. I'm just wondering if this is something that's been raised with the department or the government and you you share these concerns.
>> Well, we don't have any evidence to uh verify the the reason. Uh so there are a number of reasons that we're aware of why a person can can be stuck in hospital for longer waiting for a bed. Um so we're anecdotally aware that concessional can be part of that with providers making decisions around what funding mix allows them to remain viable. Um but we don't have a verified data set in the absence of that consistent definition. Uh and and whilst we have heard that that is true of people not in hospital beds as well. um that is reflecting the fact that once a person is approved for residential aged care um they then approach providers uh to to seek whether they have a bed available or not but it is ultimately the decision of an individual provider as to who they offer an available bed to and they might they'll need to have a range of factors um in making that decision
>> and does the department have a concern that um providers are now cherrypicking um applicants based on financial status
Look, >> I I wouldn't say that um that we would which clients they take. Many will have a threshold around concessional status um which is the position that they can be viable uh by taking concessional and then above that they need RAD paying clients in order to to pay for capital and various other things. So that's a business decision for providers. Uh and we do want a viable ongoing sector and so we need to empower them to make those decisions. Um but I wouldn't classify it necessarily as cherry picking.
>> Thank you, Secretary. That's that's really good to know. Um uh so maybe just circle back onto that that um Jarvis, is the department concerned that um providers are making business decisions that mean that low means older Australians are being overlooked for
Well, I think that that goes back to Mr. Comley's point is there is a level of concern that is driving the accommodation pricing review so that we can seek to unpack that.
>> And so what how is this going to be solved? I'm just hearing from so many Cambarans who you I think our resi age care was like 95% occupancy or something like that and they just if you've if you're don't you if you you're low means or if you you've got dementia good luck you're just not getting a getting a bed um and that feeds into >> yeah I guess what you're dealing with with hospital
sizefits-all in this sector at all. Do you want to make a comment, Miss Stuart?
Yeah, I I was um just wanting to get one of my colleagues to come and talk about the um what the government is doing in this regard with regard to the capital program in terms of bring um so I'm not sure if the right person is up here. Just apologies, Senator. We just have a >> Thanks, Miss Hart.
No, just a few just a few more
Um, apologies, Senator Emily Harper. Um,
market and workforce division. Um there is there is a very significant focus at present and I think um Miss Mil alluded to to some of this in in some of her earlier responses to questions um about government investment in additional places um and um and capital investment um which will seek to obviously expand um the the footprint and availability of residential bed supplies. So just going to your point about occupancy. >> Um we are aware that there's really significant pressure
>> and is there anything tied to that capital around supported fully supported >> places
>> at this stage? No.
>> No. Okay. So they could I mean we know how far behind we are in terms of building the beds that we need. Like some of the numbers I've seen are just terrifying. >> that's not going to clearly not going to solve this problem. So what's what's going to be done to make sure that we don't have this two-tier system where if you don't have the assets if you're if you're not a wealthy older Australian then you know good luck to you.
>> Yeah. So the Senator I probably you know the the at this stage know might have been a slight simplification. There are some um investments of course that have been recently announced including um recent facilities for example I think in Perth um uh investment in a in a facility there um St. Barts which is targeting those who provide specialized services. So for people um who are homeless or at risk of homelessness. Um so there are programs and streams u within our capital investment program that do target um those of low means. Um however acknowledge that that isn't going to go to the entirety of the issue that you're raising. Um but um as colleagues have have previously referenced the accommodation pricing review I think will go um a long way to informing government around next steps there.
>> Thank you. And um maybe just on on notice if you could provide um a breakdown of um how many providers um have below 25% um supported residents as as their resident mix. Um and if you can maybe break that down by jurisdiction that would be really helpful. Um I just had a last um question or two on the stolen interested in the treatment of stolen generations redress in the age care. Thank you very much for that. um in the and I'm interested why the government has chosen not to exempt stolen generations uh reparations from means testing like why why would these payments be treated as accessessible assets?
Uh, Senator, so um the I think this is about the the treatment of so the redress of the stolen generation scheme specifically as opposed to the national redress scheme which is exempted. Is that
>> Yeah, I guess that's that's that's exactly my question. You have a national redress scheme for people who experience institutional child sexual abuse. They're exempted. Um another redress scheme so generations that's classed as an asset. that that like that that makes zero sense to me.
>> So it was a it was a decision of government to specifically um exempt the national redress scheme in response to um strong consumer advocacy and advocacy from the round table of survivors of childhood institutional sexual abuse um and that that informed that decision of government. Uh no decision of government has been made and it would be a matter for government to decide um to extend that to other schemes. Uh I do note that during the Senate debate on the H care and other legislative amendments bill last year um there was a uh there were amendments moved and it was the view of the Senate at that time that it would be more appropriate for a whole of government approach to be taken to the treatment of redress schemes um which would imply progressing this through social security law.
>> Minister, surely the government accepts that stolen generations redress payments >> should not be accessible. It is a
concern if I have my indigenous affairs uh hat on. Uh I have raised this as an issue that I want us to look at uh and certainly to see uh how we can uh address that issue. Uh I've certainly been uh lobbied as well by uh aberiginal community health organizations and elders groups. Uh so this is visibly on the minister's radar and I'm I'm more than happy to give you a briefing uh outside of estimates as to where it's
>> Minister, from memory, there were crossbench amendments that actually dealt with this when this when this bill went through and became an act and the Labor government weren't well as >> interested. So as M trainer was was
saying to you that there was also a lot of other uh elements to that bill. Uh clearly we want to see this addressed and we will be looking at that and I'm more than happy to provide uh those details to you.
>> Minister, this you know this is the concern um first nations cambarons um raised with me is um you have this exemption for the national redress scheme then when it comes to sole generations reparation payments they're being treated as accessible assets for people who I don't need to say this to you.
>> Absolutely. And Senator, if you could uh when you're speaking to them, as I do when I'm speaking to others across the country on this matter, uh it is something that I am looking to see.
>> I know you are, but I guess for for the the government, why >> this was this was raised as an issue um through the Senate committee process in the Senate. I'm just interested like why didn't the government say, "Well, that's that seems pretty um uh pretty fair to me, pretty reasonable. Let's do it then." Um given you haven't done that, what what sort of commitment can the government um give to people who have stolen generations reparation payments that are currently being um assessed as assets?
>> Yeah. Yeah. No, that's a that's really important question and this week in particular with closing the gap announcement tomorrow and the stolen generations apology uh anniversary on Friday, we do have uh a lot of families and elders coming to the parliament and I'm certainly giving them that reassurance. We will be looking very closely at seeing this change.
>> Thank you very much, Minister. Thank you