Protection of human rights under the new Aged Care Act 2024

This article was originally published by the Law Society of South Australia.

The new Aged Care Act has been hailed as a once-in-a-generation reform that prioritises human rights. However, concerns remain that the new Act does not provide protection for aged care individuals as desired by the community.

A key purpose of the new Aged Care Act 2024 (Cth)  is to put the rights of individuals receiving aged care at the forefront of the actions and decisions of registered providers and the Government. The new Aged Care Act has been driven by the recommendations of the Royal Commission into Aged Care Quality and Safety, which was established to enquire whether aged care services in Australia were meeting the needs of the community, and how they could be improved in the future.

Protecting the rights of individuals receiving aged care is threaded through many of the recommendations of the Royal Commission, and consequently is a central focus of the new Aged Care Act.¹ These foundations can be seen within the objects of the new Aged Care Act, as well as the Statement of Principles and the Statement of Rights.² In practice, the new Act succeeds in providing stronger protections for individuals and establishes a system that is centred around an individual’s human rights. However, despite these improvements, there are concerns that the new Aged Care Act - and the system it creates - fails to adequately address the rights of individuals in numerous respects.

Accessing the aged care system

Of course, the fundamental function of the aged care system is to deliver high-quality and timely aged care services to individuals requiring it. Whilst the new Aged Care Act is a step in the right direction, there are inherent human rights limitations that arise from the aged care sector’s funding constraints. Specifically, an individual’s ability to access aged care services at all, including the level of care accessed, is dependent on the availability of government funding.

This accessibility concern is demonstrated by the long wait times for individuals requiring aged care services, for both in-home and residential aged care. For individuals wishing to receive care in their home through the Support at Home program, the current average wait time is 11 months for a standard priority support-at-home assessment to be decided.³ Similarly, individuals requiring residential aged care are waiting on average 13 months to access ongoing residential aged care in Australia,⁴ with bed shortages only adding to these delays and resulting in individuals being stuck in a hospital system not designed for long-term accommodation.⁵ These delays in accessing care are arguably the most significant human rights concern with the aged care system, as it has negative impacts on a person’s health, quality of life, and wellbeing.

Statement of Rights

The most apparent mechanism for the protection of individuals’ rights under the new Aged Care Act is the new Statement of Rights, which is intended to guide the actions and decisions of providers in their delivery of aged care services.⁶ The Statement of Rights has replaced the previous Charter of Aged Care Rights under the now ceased Aged Care Act 1997 (Cth). The Statement of Rights is a substantial improvement on the previous Charter, with a far more comprehensive list of individual rights to be protected.

Under the new Aged Care Act, the Statement of Rights primarily functions through the imposition of a registration condition on registered providers of aged care services. This condition requires providers to demonstrate an understanding of the Statement of Rights and have in place practices to ensure the provider acts compatibly with these rights.⁷ A breach of this condition can result in compliance and enforcement action by the Aged Care Quality and Safety Commissioner (ACQS Commissioner) under the new Aged Care Act. Individuals can also make a complaint to the Complaints Commissioner within the Aged Care Quality and Safety Commission that a registered provider is acting incompatibly with the Statement of Rights.⁸

However, the new Aged Care Act specifies that nothing in the Statement of Rights creates rights or duties that are enforceable by proceedings in a court or tribunal.⁹ For individuals, this means that if their rights under the Statement of Rights have been breached, their only recourse is to lodge a complaint with the Complaints Commissioner, who may then consider it. Whilst the Complaints Commissioner can investigate the complaint and take action as permitted under the Aged Care Act, the individual is unable to bring court or tribunal proceedings themselves, thereby limiting an individual’s autonomy over breaches to their rights under the Statement of Rights. 

Compensation Pathway

Another recently introduced protection under the new Aged Care Act is the compensation pathway, which allows for compensation to be granted to individuals who suffer serious injury or illness as a result of the provider’s conduct in delivering care.¹⁰ This compensation pathway allows a court to order this compensation either on the application of the ACQS Commissioner or the individual themselves.¹¹ This provides an express and clear mechanism for an individual to receive compensation from a registered provider where their right to receive safe care is found to have been breached at the hands of the provider.

However, similar to the Statement of Rights, there are narrow circumstances when compensation can be received by the individual. For a court to be able to make a compensation order, the registered provider must be found to be liable to a civil penalty for contravening the provider’s statutory duty.¹² This is reliant on the ACQS Commissioner first pursuing the breach, and is a high threshold to meet due to the requirement of a significant failure or systematic pattern of conduct in the provider’s breach, which results in the serious injury or illness.¹³ Serious injury or illness to the individual alone is not sufficient.¹⁴

Balancing protections with continuity of care

In our view, a significant contributing factor to the constraints imposed on an individual’s ability to enforce the new protections under the new Aged Care Act is the need to balance an individual’s human rights with the sustainability of the aged care system. There are significant funding constraints in the aged care sector, and especially so for residential care, where the new Aged Care Act sets or strictly regulates nearly every fee a registered provider is entitled to charge for care, services and accommodation. In this regard, most homes in the residential aged care sector are operating at a loss.¹⁵

In a sector where the financial viability of registered providers is on a tightrope due to the structure of the system and its funding, the Federal Government needs to be cautious about opening the litigation floodgates and ensuring there is enough supply to meet rising demand. Taking a step back and looking at the collective, there is a need to consider protections for individuals in the care they receive, whilst ensuring that those protections do not compromise the overall supply of aged care services.

Conclusion

Whilst the new Aged Care Act takes important steps to protect fundamental human rights, there remain a number of shortcomings in relation to an individual’s ability to enforce breaches to their rights, as well as funding and access issues preventing individuals from accessing high-quality and timely aged care services they require.

Despite this, it is acknowledged that the new Aged Care Act is the biggest aged care reform in a generation, and it is not unexpected for there to be challenges and further considerations required during this transitional period. Providers, individuals and regulators are only now beginning to see how the new Aged Care Act will impact the sector, and parties will need to listen to each other and collaborate in order to ensure there is an appropriate balance between making the system sustainable, whilst ensuring that access to care and protection of individuals’ rights are properly managed.

Helena Errey-White is a Senior Associate and a member of the Human Rights Committee of The Law Society of South Australia, and Claudia Van Eckeren is an Associate.