Senate Community Affairs Legislation Committee, , 1:30:44 to 1:39:07
Senator Pocock questions the government's decision to prohibit clinical overrides in aged care assessments, contrasting the policy with previous promises made to assessors.
Topics: Health, Law reform
Speakers: Senator The Hon Jenny McAllister, Mr Blair Comley, Senator David Pocock, Mr Greg Pugh, Unknown Speaker
When the Department discovered at the 11th hour, uh just days before the 1 November roll-out that the aged care rules 2025 had been drafted so rigidly that they legally prohibited clinical overrides. Why did the government choose to enforce a complete ban on overrides and quietly change the user manuals rather than owning up to the legal drafting error and amending legislation to maintain its public multiple public and private promises to assessors that they could have override?
So that is actually a matter for government policy. But what we discovered that the well that we checked on the policy authority, the policy authority was to not have uh an override in that way. And so what we did was ensure that we actually applied the law as it was written by advising the uh the assessors immediately that an override was not available.
And on what date did you own up to this?
So I think there's been previous evidence uh put forward that the 29th. Sorry, Ms. Pugh?
Um I might just take us back a step, Senator Pocock. So that when we first uh became aware of the issue, that was on the 24th of September 2025. Um when that advice was provided, we undertook multiple streams of work that included going back and reviewing the original government decision and the authority under which we were operating. Uh we reviewed the public statements and the advice that have been made, including guidance to the assessment workforce. Uh we sought additional legal advice around the interaction between the legislation and the rules, uh, and we developed a range of options to address the issue. To your question, um we did explore uh whether or not it was possible or consistent with government decision uh to amend the aged care rules to allow for that discretion or whether consistent with uh the agreed policy uh decision, uh whether we had to align the legislation, uh sorry, align the assessment manual to the legislation and the rules, and then provide that advice to uh the assessment workforce. And I think the really important factor here is to point out that uh amending that guidance to our external stakeholders meant that our administrative practice was consistent with the operation of the act and the rules.
When was the policy decision taken?
Oh, I think Mr. Commiss has said before that this is.
April 2024. Why did you then consult and tell everyone that there would be human override if it was a policy decision in April 2024 to not have human override?
So we we have um Senator and we have acknowledged that the Department uh made an error that um from as early as November uh June 2024, there was a misunderstanding within the department as to whether override would be available. Um that led to implementation work, which meant that um IT systems were developed on the basis there could be an override, and there was also communication to external stakeholders. We've acknowledged that that was the error of the department and was only picked up in the final due diligence for the um before the first of November.
It's it's a huge error. What what is there accountability for this? I mean, just earlier um Ms. Stewart uh you agreed um that the department had known that there would be no human override, so why are you consulting with stakeholders telling them that there would be?
Sorry, um Senator, the what we've put into evidence is there was a clear there was a policy decision of government, which I said was in April 2024, but by June 2024 there was actually miscommunication within the department, which meant that a number of people thought there would be human override. They were at that point building a system to allow that. They were engaging with stakeholders. We I have no reason to believe other than in good faith, but it was not on the basis of consistent with the government decision that was made in April 2024. In terms of the the question of responsibility, we do take responsibility as we have said just to Senator Allman Payne. We have accepted the recommendation of the Ombudsman to be in a position to undertake a root cause analysis of exactly what occurred. We've clearly done a lot of preliminary work to support that root cause analysis. Um if that root cause analysis says that there is some personal group or something that did something that would be other than a uh innocent mistake, we would have to deal with it at that point in time. But that is the process we will go through in terms of um further refining our understanding of where the divergence occurred.
Minister, you're government's clearly put um officials in a really uh awkward position after Robodebt making a government decision that there would be no human override over a tool that basically decides the the level of care for older Australians. What how can your government possibly justify um making that decision given what we saw in Robert and given the recommendations from Robert?
Uh Senator, let's start with the problem that the government is trying to deal with, which is has a number of dimensions. The first is that the demand for age care, including age care that people can receive in their own homes is expanding enormously. Um the previous system for assessing people was really inconsistent and saw different assessor organisations provide really umxplainable differences in both the priority and classification that they allocated to the people they're assessing. And so the Royal Commission recommended that there be a single integrated assessment of system and that that include a tool. Um the tool that has been developed and is in use involves uman engagement at every point. So there are inputs that are made by trained assessors, um, the um they are across a large number of questions and it is a tool that um is designed to provide fairer outcomes and is delivering a very high volume. Um but we do accept that in any implementation arrangement you always need to listen to the feedback that you're receiving from the community. Uh we are hearing feedback from community about their concerns about this, and you'll know that Minister Ray has recently announced uh review and implementation review of the assessment system, and that is because older Australians and their loved ones have told us that the assessment system isn't always getting it right.
But Minister, why do we why do we need the Senate and the community to tell you that you actually just need to do what the Royal Commission told the government needs to happen, that there needs to be human oversight of these sorts of decisions? What why was that decision taken? A very clear decision because clearly the department was working on the basis that there would be human oversight. The government took a decision not to have that. You you knew what the recs from the Royal Commission were. Can you explain why that decision was taken?
I think you're mischaracterising the evidence that the department officials have provided to this committee about what happened. There was a decision taken by government. Uh it was then legislated and the parliament scrutinised that legislation. There were then draft rules released which were scrutinised. Um there were then final rules released. All of these were consistent with the arrangements that then ultimately commenced in 2025. Um and the departments already provided evidence about how it was that some parts of the department were working on a different understanding.