The Aged Care and Other Legislation Amendment (Royal Commission Response No.1) Bill 2021 (the Bill) makes urgent amendments to the Aged Care Act 1997 (the Aged Care Act) and the Aged Care Quality and Safety Commission Act 2018 regarding:
- restrictive practices;
- home care assurance reviews; and
- the Aged Care Financing Authority.
Restrictive Practices
Commencing 1 July 2021, Schedule 1 amends the Aged Care Act to introduce a new definition of the term ‘restrictive practice’ and implements Recommendation 17 of the Aged Care Royal Commission.
Under the Bill, ‘restrictive practice’ will be defined as “a restrictive practice in relation to a care recipient is any practice or intervention that has the effect of restricting the rights or freedom of movement of the care recipient.” Additionally, the Quality of Care Principles may provide that a specific practice or intervention is a restrictive practice.
To implement Recommendation 17, the Quality of Care Principles must require that:
- a restrictive practice is only used as a last resort and after consideration of the likely impact of the use of the practice on the care recipient;
- to the extent possible, alternative strategies are used before a restrictive practice is used;
- alternative strategies that have been considered or used in relation to a care recipient are documented; and
- a restrictive practice in relation to a care recipient is used only to the extent that it is necessary and in proportion to the risk of harm to the care recipient or other persons; and
- if a restrictive practice in relation to a care recipient is used, it is used in the least restrictive form, and for the shortest time, necessary to prevent harm to the care recipient or other persons; and
- informed consent is given to the use of a restrictive practice in relation to a care recipient; and
- the use of a restrictive practice in relation to a care recipient is not inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles; and
- provision is made for, or in relation to, the monitoring and review of the use of a restrictive practice in relation to a care recipient.
The above amendments are not intended to limit the matters that may be specified in the Quality of Care Principles and may provide that the requirements do not apply in emergency situations.
Importantly, approved providers may be subject to a compliance notice and consequent civil penalties if non-compliant with the above restrictive practice requirements.
Home Care Assurance Reviews
Schedule 2 amends the Aged Care Act to allow the Secretary to conduct assurance reviews to assure the arrangements for the delivery and administration of home care are effective and efficient, and for informing development of home care policy and education.
The Secretary may, in writing, specify the terms of reference for an assurance review including the approved provider to which it relates and the subject matter of the review.
The subject matter of the review may include one or more of the following:
- how approved providers are using home care subsidy and charging for home care, including justifications for amounts charged to care recipients;
- how approved providers are structuring their financial accounting for home care services;
- the nature and type of home care provided by approved providers;
- the nature and type of approved providers’ dealings with care recipients to whom home care is provided;
- any other matters the Secretary considers relate to the assuring the arrangements for home care are efficient and effective, and informs the development of home care policy and education; and
- approved providers’ procedures and documentation in relation to matters mentioned above.
The Secretary will be empowered to prepare and publish reports on assurance reviews, dealing with any findings, conclusions or recommendations.
The Secretary may also provide a notice to answer questions or a notice to give information or documents where it is reasonably believed that the provider is a corporation which has information or documents relevant to the subject matter.
Approved providers will now be under a duty to provide all reasonable facilities and assistance necessary for the effective exercise of the assurance review.
The home care assurance review amendments will commence the day after the Bill receives Royal Assent.
Aged Care Financial Authority
As of 1 July 2021, Schedule 3 of the Bill removes the requirement for the Minister for Aged Care to establish the Aged Care Financing Authority.
If you have any queries regarding restrictive practices, home care assurance reviews or any other aged care related matters, please contact a member of our Health and Aged Care team on (08) 9321 0522.
