Who cares … Arcare?

Who cares … Arcare? Aged care providers still charging for services never provided, regulator hiding

Some aged care providers are a law unto themselves. Although Australian Consumer Law makes it illegal for a business to accept payment for products and services that are not supplied, some aged care businesses wilfully break the law. Residents in these aged care homes are charged for services they do not use.

Residents may be charged for services such as an internet connection, irrespective of whether they use the internet. Teetotallers may also be charged for wine with dinner. Rather than protect residents from this financial abuse, the Minister for Aged Care and the national regulator of aged care services continue to turn a blind eye.

According to legislation, additional services can only be charged if the resident “receives direct benefit or has the capacity to take up or make use of the services”. Aged care providers must not only regularly review a resident’s ability to derive a benefit from the additional care or services but also itemise these additional services in a monthly statement.

When Mr and Mrs Jones entered an Arcare residential facility, the contract included an Additional Services fees of $20 per person per day. So what did this buy them? A choice of menu for lunch and dinner; a selection of wine and beer with dinner; weekly hot cooked breakfast; exclusive use of the private dining room; weekly pre dinner drinks; weekly high tea; daily newspaper in communal areas; wireless internet in your private suite; exercise classes; Foxtel, and local small group outings. Other items listed in the agreement, included, a welcome gift on arrival, exclusive use of private dining room and two meals for family and friends on first day. So residents had to pay for their own welcome gift – seriously?

When Mr and Mrs Jones’ daughter questioned paying an extra $140 each per week, Arcare agreed to reduce the fee to $70 per week, on the condition that Foxtel was removed from each room.  Was Arcare charging her parents $10 per day to access Foxtel?

Each month Arcare provided an invoice. This invoice included ‘daily care fees’, ‘means tested fees’ and ‘additional services’. However, these ‘additional services’ were not itemised – so there was no way of knowing which of these ‘additional services’ Mr or Mrs Jones had used. Did they have wine for dinner or attend an exercise class?

When the daughter realised that Mr and Mrs Jones were not using any of the additional services, she asked to have the fee abolished. However, Arcare refused. So, the daughter made a formal complaint to the aged care regulator – Aged Care Quality and Safety Commission (ACQSC).

Eight months after her initial complaint, and after numerous follow up emails, the daughter was advised that ACQSC had not been able to resolve the complaint.

The daughter did not give up. She contacted ACCC, the Commonwealth Ombudsman and the Office of the Australian Information Commissioner and Older Persons Advocacy Network – all to no avail. She then went back to ACQSC. Surely it was their job to ensure aged care providers acted lawfully.

Her persistence paid off. Fourteen months after her initial complaint, ACQSC issued a ‘Notice of Intention to Give Directions (Notice)’ to Arcare. According to this Notice Arcare:

  • charged an additional services fee for a bundled package but did not provide an itemised cost for each service;
  • had no review process to assess a consumer’s capacity to benefit from the additional services provided; and
  • included care and services in a package of services already required to be provided under the Quality of Care Principles 2014 (e.g. a communal newspaper, a choice of meals at lunch and dinner, exercise classes and bus outings).

In response to the Notice, Arcare proposed a range of actions it would take. However, these actions were not sufficient to address the complaint. So ACQSC issued Directions to Arcare. These Directions outlined the actions Arcare was required to undertake (including necessary timeframes) in order to meet its responsibilities under the Aged Care Act 1997. Arcare was required to:

  • take action to provide an itemised list (including costs) for each element of its bundled package of additional fees;
  • provide accurate information about the availability and access arrangements for the included care and services;
  • only charge for additional care and services where care recipients are able to derive a benefit from them;
  • cease charging for items that should be provided under the Quality of Care Principles 2014; and
  • provide refunds where they have charged additional fees unlawfully.

Arcare challenged the Directions Order in the Federal Court. It soon became clear that ACQSC was no match for Arcare’s lawyers. After a year of legal shenanigans, ACQSC advised the daughter to negotiate directly with Arcare for compensation. However, the daughter was not fighting only for her parents. She was fighting for all Arcare residents who are charged for services they do not use.

Arcare continues to charge additional fees irrespective of whether residents use these services. They also do not provide an itemised list (including costs) for each service (see recent invoice).

Although the aged care regulator is fully aware that Arcare and other aged care providers are not acting in accordance with aged care legislation, ACQSC has washed its hands. ACQSC simply does not have the power to enforce residents’ legal rights. What is the point of the government introducing a new Aged Care Act without a strong regulator with the power to enforce legislation?

In 2018, Regis and Japara were forced to repay residents millions of dollars that had been charged to clients under the guise of an ‘asset refurbishment fee’. The ‘asset refurbishment fee’ that was declared illegal by the Federal Court. It’s well past time for Anika Wells, Minister for Aged Care, to step up and declare it illegal for aged care providers to charge residents for services that they are not receiving in an aged care home.

Falls, Bed Rails & Reality

The following was posted by Tony Northcote, a member of the Aged Care Matters Facebook Group. I am not sure of why Facebook disabled the comments – perhaps due to its length. I have reproduced the post here until Facebook replies to our messages. I have not included the links that Tony supplied.

************

“A recent post concerning falls quickly generated over 130 comments. While I have no doubt the members of this group only have the best intentions, there are obviously some misconceptions about falls and how to deal with them.

Advances in clinical management come from evidence-based information. We wouldn’t expect any less than a thorough examination of any new drug, procedure or practice. Please be careful with anecdotal advice, do your own research and leave emotion at the door.

Apologies in advance for the length of this post…but this is such a big subject and I’ve only scratched the surface

(A special mention to Eddie Uzsakt for collating some of the recent discussion points)

As a clinician and manager for thirty years, here’s what I know to be true: I invite you to consider the following:

Falls

There is only one way to prevent old people falling…invent an anti-gravity device. Until then, gravity will ALWAYS win.

According to the AIHW, falls are Australia’s leading cause of injury hospitalisation and death, representing 43% of injury hospitalisations and 42% of injury deaths. It’s no surprise that the highest risk group is females over the age of 65…and the risk increases exponentially as we get older.

In 2021-22, fall injuries in people 65 and over accounted for 60% of hospitalisations and 94% of deaths. The full data set can be found on AIHW website.

It makes for sobering reading. It shows that falls are an extensive and common problem for the entire population and almost an inevitable consequence of getting old and frail.

Despite the thousands of researchers writing thousands of research papers and developing lots of great preventative strategies, we’re still falling…a lot. When you throw some cognitive impairment, frailty, poor vision, decreased strength and chronic diseases like Parkinson’s or diabetes into the mix, we’re almost guaranteed to hit the deck at some stage.

My point here is that while there are certain interventions that can and should be implemented in residential aged care, none of them are 100% effective….it’s just not possible to prevent every fall.

If your expectations don’t align with this reality, you’re setting yourself up for a fall (Sorry).

Bed Rails

This is not the 1950s…DO NOT use them. Although some people consider they’ve had a win by getting them installed, the numbers don’t lie…they are dangerous. There is a plethora of information available on the dangers of bed rails.

It’s important to note that even when all the known risks have been managed, no institution can guarantee that mattresses won’t be swapped and beds relocated in the normal course of daily operations, so a mattress or bed that may have initially had the correct clearance measurements can easily become a potential injury risk.

Padded or covered bed rails are still dangerous. They isolate the person and will fall from a greater height when they climb over them. And it’s not just the bed rail structure that needs to be considered: is the mattress correctly matched to the bed base? Is there a gap of more than 10cm between the mattress edge and the rails? Have the rails been fitted correctly (you wouldn’t believe how many get installed reversed).

Hospital bed side rails are different. They’re segmented: typically two – three separate sections on each side and they are only a few hundred mm high. You’ll also note they swing out and under the bed, not along the length of the bed.

For the most part, hospitals aren’t very good at caring for people with dementia…they’re ill-equipped in both design and skill when it comes to severe cognitive impairment. Even with nurse /patient ratios as high a 3: 1 in some areas, aged care residents regularly hit the deck during a hospital admission. (Hospitals are also very quick to reach for the Benzos and anti-psychotics when someone doesn’t ‘behave’)

While you might think you’re acting in the person’s best interest when you demand that bed rails are fitted… you really aren’t. I lay the blame squarely on the facility manager and other key staff. They obviously haven’t sat down with you to have a candid discussion or provided the evidence that would at least give you some confidence when deciding not to use bed rails.

Solutions?

Despite the utopian assertion that falls are preventable, they’re not. The current data suggests that only about one third of all falls are linked to potentially preventable factors.

For the cohort we’re all concerned about, falls prevention is a nightmare. Consider just a few of the increased risk factors Mum or Nana are dealing with:

Decreased mobility, balance and dexterity

Failing eyesight and hearing

General physical decline

Cognitive impairment

Arthritis: there goes your flexibility and here comes the pain

Diabetes: complications include blindness and peripheral neuropathy (the inability sense the position of your extremities plays havoc with your proprioception)

Parkinson’s, Stroke and a myriad of other neurological conditions that can impact balance, strength and spatial awareness

Continence issues: when you gotta go…

Polypharmacy: Probably one of the biggest offenders…hands up everyone taking 5 or more regular medications?

The list of potential risk factors is extensive…you can appreciate the challenges.

Here are a few things that can actually make a dent in fall rates.

Strength and balance training: If your facility physio isn’t running daily exercise classes that specifically target these areas, ask them why not….and then lobby the service to implement a suitable program. A month of sit to stand exercises and balance work can yield extraordinary results for almost everyone. (Just being able to get on and off the toilet safely can significantly impact fall rates)

The Environment:

De-clutter the room,

If they use a walking aid, make sure it’s easily accessible,

Good lighting is essential… and always have a night light on

The best room designs will ensure the bathroom is clearly visible from the resident bed.

Make sure the call bell is in reach

Make sure the things they need are close at hand (TV Remote, glasses, water, tissues, etc.)

For the ambulant resident, get rid of the ill-fitting sandals and fluffy slippers and buy some comfortable joggers with non-slip soles

Ensure the bed is always set at the appropriate height when they’re in it.

No floor coverings with swirling or geometric patterns. These affect orientation and spatial awareness in older persons and even more so in those with cognitive impairment.

Regular and individualised toileting schedules

Medication reviews: This is a big one. GPs are good at prescribing but not so hot with de-prescribing. Is the person still on the same dose of blood pressure medication they were taking when they were more active and living at home? I’d wager the answer is yes. This is something that frequently gets missed…a person enters residential care, becomes more sedentary and starts falling down whenever they stand up because their blood pressure is too low. A pharmacist review is a good place to start…then get a geriatrician to look at their entire medication regimen. They should be the one who has the helicopter view of the entire person. Endless trips to specialists and the cumulative tinkering with medications are a recipe for disaster. Frustratingly, the medical profession continues to operate with a silo mentality, so you need someone who knows what they’re doing to take a holistic view. (You can also help by not pressuring the GP to prescribe additional medications for every minor or temporary ailment. You don’t need to treat everything, every time)

.Ditch the sleeping tablets. Mum might be used to taking them every night for past twenty years, but they stopped being effective about two weeks after she started. After a very short period, benzos are essentially useless as sleeping meds but they remain very effective at screwing with alertness and motor coordination.

Try to reduce the need to pee overnight: less chance of falling as they groggily stumble to the loo and a better chance of getting a good night’s sleep.

Ease up on the coffee and tea after 6pm.

If they’re taking diuretic tablets, these should be administered in the morning. If they’re prone to oedema and their legs swell up over the course of the day, make sure they reduce the fluid intake from the late afternoon and put their feet up regularly. (When they finally get into bed at night, reabsorbing all that retained fluid can be the equivalent of downing a few schooners)

Consider the facility’s daily routine. Do the afternoon staff come on duty at 3pm and start putting people to bed? This is an appallingly common practice and effectively sentences some residents to being in bed for 18+ hours every day (No wonder they become restless and try to get up). The very frail should have an afternoon rest and be up for the evening meal…and nobody should be in bed before 7pm unless they specifically request it (and you can’t talk them out of it!) And you can’t just leave someone in a tub chair all day either.

But…

Some people with cognitive impairment will be more challenging. After all, they’ve been used to getting around independently for the past eight or nine decades.

Even the very few useful interventions available are still just reactive. Bed sensors only alarm after someone gets out of bed (Although, they are very effective at generating ‘alarm fatigue’; endless false alarms induce staff complacency “…don’t worry, it’ll just be another false alarm…’’) and most of the sensors on the market are ordinary, at best.

Infrared bed exit sensors can be useful, but you won’t find many places that use them…or if they do, have them set up correctly.

Placing someone in a lo-bed attempts to reverse the circumstances…now gravity is working against the person as they try to stand up and not with them as they fall down. There is some interesting research on the physics of falling and the height /speed /force, etc. that causes injury; ideally, we should aim for a total bed height under 30cm. (including the mattress). Good lo-beds will easily go lower than that.

Use proper crash mats: not the spongy foam units you see in most facilities. The high density foam mats are only a few centimeters thick and you can stand on a chair and drop onto your knees without sustaining any injury (try doing that with your current crash mat…actually, don’t)

The person will probably still roll onto the floor but the chances of serious injury are greatly reduced (but NOT eliminated entirely).

Note: When used for a person who has been assessed as requiring assistance with mobility, has been reviewed by the physio, GP, clinical manager, etc. and discussions held with their representative, Lo-Beds are NOT a form of restraint. Although the commission identified them as a form of restraint in a 2020 regulatory bulletin, this does not accord with the legislated definition: (They do not impede or restrict the free movement of the resident.) A few years back the commission would crucify you for not using low beds…now, their reactive and ham-fisted interpretation of the legislation has them more interested in regulation than preventing head injuries. If your facility manager can coherently present this rationale they’ll easily counter any allegations of noncompliance.

Furphies

‘Dignity of risk’ is getting a quite a flogging of late…it’s almost as popular as ‘open disclosure’. People seem to like using these terms; it gives the impression you know what you’re talking about

With regards to falls, restraint and consent, one can’t just say “dignity of risk” and call it done. It’s way more nuanced because the ethos rarely matches the reality. This topic warrants its own separate discussion, but suffice to say it does not mean we allow people to exercise choice in ALL circumstances. Nor does it give the right to place your relative in jeopardy just because you can. When a service asks you to sign a waiver (most of these are less useful than toilet paper) they’ve already calculated the implications of risk and their obligations as a healthcare provider and concluded it’s easier to transfer the responsibility to someone else….you!

Please be very careful with this stuff. Also, recognise that when we act as someone’s representative, we’re often basing our decisions on their historical preferences; in many instances, those preferences are no longer appropriate.

A Falls Management Plan sounds like a useful document. But in practice 99’9% of them are essentially useless pieces of paper, produced for the sole purpose of appeasing the commission at audit time. Line up all the plans at any facility and you’ll see the same generic ‘intervention strategies’, the same aspirational toileting schedules and the same set of mobility and activity directives that the staff aren’t following. How could they when nobody actually reads these things?

(It never ceases to amaze me that people continue to believe these documents inform the delivery of care. Does anyone seriously believe that all care personnel read the entire thirty+ pages of care plans for every resident at the beginning of every shift?)

Many of the ‘standard’ protocols in aged care serve no valid purpose. The Falls Risk Assessment Tool (FRAT) is a good example: Like most predictive tools, they just give the impression that something is being done. Ask anyone about the care strategy differences for a medium falls risk and a high falls risk: they won’t be able to tell you because there aren’t any. Even more curious is the number of providers who insist that a FRAT is done after every fall. Even for people who are already rated as high risk. This is absurd…there’s no point doing the same risk assessment after the event… And there’s no such thing as an ‘extra-high’ risk category.

Sight charts and monitoring charts: Hourly, half-hourly, 15 minutes…There’s no point. Check them every 5 minutes? They can still fall over right after you’ve checked them. We used to call these “lie to me” charts. Staff will typically batch complete them at the end of the shift. (Having to battle with a dozen or more of these ludicrous documents every shift, I would too).

Anyone trying to sell you this as an effective strategy is either incompetent or trying to hoodwink you.

Finally

While there are some acute medical situations where restraint is a valid intervention, it’s rarely the case in residential care. Keeping a person restrained “for their own good” is problematic. Tying them up or caging them in is a clumsy and primitive approach to a complex problem.

Ultimately, this is an ethical and moral dilemma: do you keep someone ‘safe’ by restraining them and turning their every waking moment into a torment of frustration, confusion and distress…or do you implement the things you can and accept the consequences? Do you want them to live or just exist? Are you looking for quality or quantity? What would your mum have wanted for her final months… drug- addled imprisonment or freedom (and all its associated risks?) I know what my choice would be. I think we sometimes forget that our folks have been through wars, depressions and much greater risks than we’ll ever experience. We can certainly improve on the current standard of care but there is no perfect solution…so please don’t beat yourself up because you’re unable to fix everything.

Falls, Bed Rails & Reality

A recent post concerning falls quickly generated over 130 comments. While I have no doubt the members of this group only have the best intentions, there are obviously some misconceptions about falls and how to deal with them.

Advances in clinical management come from evidence-based information. We wouldn’t expect any less than a thorough examination of any new drug, procedure or practice. Please be careful with anecdotal advice, do your own research and leave emotion at the door.

Apologies in advance for the length of this post…but this is such a big subject and I’ve only scratched the surface

(A special mention to Eddie Uzsakt for collating some of the recent discussion points)

As a clinician and manager for thirty years, here’s what I know to be true: I invite you to consider the following:

Falls

There is only one way to prevent old people falling…invent an anti-gravity device. Until then, gravity will ALWAYS win.

According to the AIHW, falls are Australia’s leading cause of injury hospitalisation and death, representing 43% of injury hospitalisations and 42% of injury deaths. It’s no surprise that the highest risk group is females over the age of 65…and the risk increases exponentially as we get older.

In 2021-22, fall injuries in people 65 and over accounted for 60% of hospitalisations and 94% of deaths. The full data set can be found on AIHW website.

It makes for sobering reading. It shows that falls are an extensive and common problem for the entire population and almost an inevitable consequence of getting old and frail.

Despite the thousands of researchers writing thousands of research papers and developing lots of great preventative strategies, we’re still falling…a lot. When you throw some cognitive impairment, frailty, poor vision, decreased strength and chronic diseases like Parkinson’s or diabetes into the mix, we’re almost guaranteed to hit the deck at some stage.

My point here is that while there are certain interventions that can and should be implemented in residential aged care, none of them are 100% effective….it’s just not possible to prevent every fall.

If your expectations don’t align with this reality, you’re setting yourself up for a fall (Sorry).

Bed Rails

This is not the 1950s…DO NOT use them. Although some people consider they’ve had a win by getting them installed, the numbers don’t lie…they are dangerous. There is a plethora of information available on the dangers of bed rails.

It’s important to note that even when all the known risks have been managed, no institution can guarantee that mattresses won’t be swapped and beds relocated in the normal course of daily operations, so a mattress or bed that may have initially had the correct clearance measurements can easily become a potential injury risk.

Padded or covered bed rails are still dangerous. They isolate the person and will fall from a greater height when they climb over them. And it’s not just the bed rail structure that needs to be considered: is the mattress correctly matched to the bed base? Is there a gap of more than 10cm between the mattress edge and the rails? Have the rails been fitted correctly (you wouldn’t believe how many get installed reversed).

Hospital bed side rails are different. They’re segmented: typically two – three separate sections on each side and they are only a few hundred mm high. You’ll also note they swing out and under the bed, not along the length of the bed.

For the most part, hospitals aren’t very good at caring for people with dementia…they’re ill-equipped in both design and skill when it comes to severe cognitive impairment. Even with nurse /patient ratios as high a 3: 1 in some areas, aged care residents regularly hit the deck during a hospital admission. (Hospitals are also very quick to reach for the Benzos and anti-psychotics when someone doesn’t ‘behave’)

While you might think you’re acting in the person’s best interest when you demand that bed rails are fitted… you really aren’t. I lay the blame squarely on the facility manager and other key staff. They obviously haven’t sat down with you to have a candid discussion or provided the evidence that would at least give you some confidence when deciding not to use bed rails.

Solutions?

Despite the utopian assertion that falls are preventable, they’re not. The current data suggests that only about one third of all falls are linked to potentially preventable factors.

For the cohort we’re all concerned about, falls prevention is a nightmare. Consider just a few of the increased risk factors Mum or Nana are dealing with:

Decreased mobility, balance and dexterity

Failing eyesight and hearing

General physical decline

Cognitive impairment

Arthritis: there goes your flexibility and here comes the pain

Diabetes: complications include blindness and peripheral neuropathy (the inability sense the position of your extremities plays havoc with your proprioception)

Parkinson’s, Stroke and a myriad of other neurological conditions that can impact balance, strength and spatial awareness

Continence issues: when you gotta go…

Polypharmacy: Probably one of the biggest offenders…hands up everyone taking 5 or more regular medications?

The list of potential risk factors is extensive…you can appreciate the challenges.

Here are a few things that can actually make a dent in fall rates.

Strength and balance training: If your facility physio isn’t running daily exercise classes that specifically target these areas, ask them why not….and then lobby the service to implement a suitable program. A month of sit to stand exercises and balance work can yield extraordinary results for almost everyone. (Just being able to get on and off the toilet safely can significantly impact fall rates)

The Environment:

De-clutter the room,

If they use a walking aid, make sure it’s easily accessible,

Good lighting is essential… and always have a night light on

The best room designs will ensure the bathroom is clearly visible from the resident bed.

Make sure the call bell is in reach

Make sure the things they need are close at hand (TV Remote, glasses, water, tissues, etc.)

For the ambulant resident, get rid of the ill-fitting sandals and fluffy slippers and buy some comfortable joggers with non-slip soles

Ensure the bed is always set at the appropriate height when they’re in it.

No floor coverings with swirling or geometric patterns. These affect orientation and spatial awareness in older persons and even more so in those with cognitive impairment.

Regular and individualised toileting schedules

Medication reviews: This is a big one. GPs are good at prescribing but not so hot with de-prescribing. Is the person still on the same dose of blood pressure medication they were taking when they were more active and living at home? I’d wager the answer is yes. This is something that frequently gets missed…a person enters residential care, becomes more sedentary and starts falling down whenever they stand up because their blood pressure is too low. A pharmacist review is a good place to start…then get a geriatrician to look at their entire medication regimen. They should be the one who has the helicopter view of the entire person. Endless trips to specialists and the cumulative tinkering with medications are a recipe for disaster. Frustratingly, the medical profession continues to operate with a silo mentality, so you need someone who knows what they’re doing to take a holistic view. (You can also help by not pressuring the GP to prescribe additional medications for every minor or temporary ailment. You don’t need to treat everything, every time)

.Ditch the sleeping tablets. Mum might be used to taking them every night for past twenty years, but they stopped being effective about two weeks after she started. After a very short period, benzos are essentially useless as sleeping meds but they remain very effective at screwing with alertness and motor coordination.

Try to reduce the need to pee overnight: less chance of falling as they groggily stumble to the loo and a better chance of getting a good night’s sleep.

Ease up on the coffee and tea after 6pm.

If they’re taking diuretic tablets, these should be administered in the morning. If they’re prone to oedema and their legs swell up over the course of the day, make sure they reduce the fluid intake from the late afternoon and put their feet up regularly. (When they finally get into bed at night, reabsorbing all that retained fluid can be the equivalent of downing a few schooners)

Consider the facility’s daily routine. Do the afternoon staff come on duty at 3pm and start putting people to bed? This is an appallingly common practice and effectively sentences some residents to being in bed for 18+ hours every day (No wonder they become restless and try to get up). The very frail should have an afternoon rest and be up for the evening meal…and nobody should be in bed before 7pm unless they specifically request it (and you can’t talk them out of it!) And you can’t just leave someone in a tub chair all day either.

But…

Some people with cognitive impairment will be more challenging. After all, they’ve been used to getting around independently for the past eight or nine decades.

Even the very few useful interventions available are still just reactive. Bed sensors only alarm after someone gets out of bed (Although, they are very effective at generating ‘alarm fatigue’; endless false alarms induce staff complacency “…don’t worry, it’ll just be another false alarm…’’) and most of the sensors on the market are ordinary, at best.

Infrared bed exit sensors can be useful, but you won’t find many places that use them…or if they do, have them set up correctly.

Placing someone in a lo-bed attempts to reverse the circumstances…now gravity is working against the person as they try to stand up and not with them as they fall down. There is some interesting research on the physics of falling and the height /speed /force, etc. that causes injury; ideally, we should aim for a total bed height under 30cm. (including the mattress). Good lo-beds will easily go lower than that.

Use proper crash mats: not the spongy foam units you see in most facilities. The high density foam mats are only a few centimeters thick and you can stand on a chair and drop onto your knees without sustaining any injury (try doing that with your current crash mat…actually, don’t)

The person will probably still roll onto the floor but the chances of serious injury are greatly reduced (but NOT eliminated entirely).

Note: When used for a person who has been assessed as requiring assistance with mobility, has been reviewed by the physio, GP, clinical manager, etc. and discussions held with their representative, Lo-Beds are NOT a form of restraint. Although the commission identified them as a form of restraint in a 2020 regulatory bulletin, this does not accord with the legislated definition: (They do not impede or restrict the free movement of the resident.) A few years back the commission would crucify you for not using low beds…now, their reactive and ham-fisted interpretation of the legislation has them more interested in regulation than preventing head injuries. If your facility manager can coherently present this rationale they’ll easily counter any allegations of noncompliance.

Furphies

‘Dignity of risk’ is getting a quite a flogging of late…it’s almost as popular as ‘open disclosure’. People seem to like using these terms; it gives the impression you know what you’re talking about

With regards to falls, restraint and consent, one can’t just say “dignity of risk” and call it done. It’s way more nuanced because the ethos rarely matches the reality. This topic warrants its own separate discussion, but suffice to say it does not mean we allow people to exercise choice in ALL circumstances. Nor does it give the right to place your relative in jeopardy just because you can. When a service asks you to sign a waiver (most of these are less useful than toilet paper) they’ve already calculated the implications of risk and their obligations as a healthcare provider and concluded it’s easier to transfer the responsibility to someone else….you!

Please be very careful with this stuff. Also, recognise that when we act as someone’s representative, we’re often basing our decisions on their historical preferences; in many instances, those preferences are no longer appropriate.

A Falls Management Plan sounds like a useful document. But in practice 99’9% of them are essentially useless pieces of paper, produced for the sole purpose of appeasing the commission at audit time. Line up all the plans at any facility and you’ll see the same generic ‘intervention strategies’, the same aspirational toileting schedules and the same set of mobility and activity directives that the staff aren’t following. How could they when nobody actually reads these things?

(It never ceases to amaze me that people continue to believe these documents inform the delivery of care. Does anyone seriously believe that all care personnel read the entire thirty+ pages of care plans for every resident at the beginning of every shift?)

Many of the ‘standard’ protocols in aged care serve no valid purpose. The Falls Risk Assessment Tool (FRAT) is a good example: Like most predictive tools, they just give the impression that something is being done. Ask anyone about the care strategy differences for a medium falls risk and a high falls risk: they won’t be able to tell you because there aren’t any. Even more curious is the number of providers who insist that a FRAT is done after every fall. Even for people who are already rated as high risk. This is absurd…there’s no point doing the same risk assessment after the event… And there’s no such thing as an ‘extra-high’ risk category.

Sight charts and monitoring charts: Hourly, half-hourly, 15 minutes…There’s no point. Check them every 5 minutes? They can still fall over right after you’ve checked them. We used to call these “lie to me” charts. Staff will typically batch complete them at the end of the shift. (Having to battle with a dozen or more of these ludicrous documents every shift, I would too).

Anyone trying to sell you this as an effective strategy is either incompetent or trying to hoodwink you.

Finally

While there are some acute medical situations where restraint is a valid intervention, it’s rarely the case in residential care. Keeping a person restrained “for their own good” is problematic. Tying them up or caging them in is a clumsy and primitive approach to a complex problem.

Ultimately, this is an ethical and moral dilemma: do you keep someone ‘safe’ by restraining them and turning their every waking moment into a torment of frustration, confusion and distress…or do you implement the things you can and accept the consequences? Do you want them to live or just exist? Are you looking for quality or quantity? What would your mum have wanted for her final months… drug- addled imprisonment or freedom (and all its associated risks?) I know what my choice would be. I think we sometimes forget that our folks have been through wars, depressions and much greater risks than we’ll ever experience. We can certainly improve on the current standard of care but there is no perfect solution…so please don’t beat yourself up because you’re unable to fix everything.”

Letter to PM

1 August, 2022

Dear Prime Minister,

Thank you for your determination to reform the aged care system. We welcome most of the changes incorporated within the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022 (“the Aged Care Reform Bill”).  

However, it beggars belief that the Albanese government remains committed to Schedule 9.

Schedule 9 provides immunity to aged care providers who comply with the Quality of Care Principles under the Aged Care Act, 1997.  Yet these principles haven’t even been written!

Furthermore, Schedule 9 is unjust and discriminatory. It provides immunity for providers and their staff for some of the most objectionable aspects of aged care – the use of restrictive practices without having obtained lawful consent. Such practices, which include chemical restraint, physical restraint and seclusion, attracted the most ire from the Aged Care Royal Commissioners.

Schedule 9 denies older people who live in residential aged care – a vulnerable cohort of people – the same legal protections given to all other Australians.

The Bill before Parliament purports to being within the bounds of the Royal Commission’s recommendations and the Commonwealth’s responses to those recommendations. Yet the Royal Commission made no recommendation that providers and their staff should have immunity.

Some “consumer” organisations which are funded by the government have indicated support for Schedule 9. However, we are a coalition of independent advocates and elder/aged care lawyers who speak without fear of losing government funding and are able to voice our legitimate and strongly held opposition to Schedule 9.

It has been claimed that legislative differences among states and territories present a risk to aged care providers because of the uncertainty and difficulty in identifying who has the lawful authority to consent to restrictive practices.

The Albanese government, like the Morrison government, simply adopted the solution put forward by the aged care providers – immunity against civil or criminal action.

By giving providers immunity against criminal charges and civil claims if the provider complies with the restrictive practices’ obligations in the still to be written Quality of Care Principles, Schedule 9 subordinates the common law to regulations made under the Aged Care Act (i.e. Quality of Care Principles).

It is an extraordinary overreach of Constitutional powers for the federal government to grant aged care providers immunity from key legislation enacted by states and territories. This includes immunity from consumer law, the common law crimes of unlawful restraint, assault and battery and writs of habeas corpus.

Offering immunity to commercial businesses is unprecedented. Many providers are private ‘for-profit’ – including publicly listed – companies (Estia, Regis) and multinationals (Bupa, Opal).

Schedule 9 also breaches Australia’s obligations under the International Covenant On Civil And Political Rights and the Optional Protocol and Optional Protocol to the Convention Against Torture that Australia has signed.

We put forward a workable solution: an offer of an indemnity rather than immunity. The number of recorded court cases arising from unlawful restrictive practices in aged care over the past 25 years could be as little as six (and not all were a success for the complainant). Given that residents and their families have rarely taken legal action – despite the well-documented track record over decades of neglect, poor treatment and abuse – the willingness of government to protect approved aged care providers is staggering.

There are many examples of similar indemnity schemes – most recently that offered by the Morrison government for health practitioners in that event that people receiving COVID-19 vaccines experience serious adverse events.

People who have been abused should always have access to their common law rights, regardless of where the abuse occurred.  

Do you really want your government to be remembered as the one that stripped many older Australians of their fundamental legal and human rights? Surely you don’t want to be the government that took such unprecedented action simply to protect the profits of aged care providers, many of whom are multinationals, over the rights of vulnerable Australians.

Yours sincerely,

Dr Sarah Russell – Director, Aged Care Matters

cc

Rodney Lewis – Solicitor – Elderlaw, Author – Elder Law in Australia

Frank Ward OAM – Resident, Harbourside Haven Village

Elizabeth Minter – Aged Care Matters

Catherine Henry – Solicitor, Australian Lawyers Alliance

Professor Wendy Lacey – Executive Dean, Faculty of Business, Government & Law, University of Canberra

Funding is not the problem

HeraldSun 4 April 2022

I have spent six years trying to improve the aged care system on behalf of older people and families. This has been done as an unpaid advocate with no government funding.

The aged care system is broken. Numerous inquiries, including a royal commission, have revealed evidence of poor care, negligence, neglect, abuse and assault.

We know what needs to be done. The solution to the crisis starts with transparency and accountability. 

I have become a stuck record in my calls for the federal government to demand transparency from the aged care providers in return for the billions of taxpayers’ dollars they get each year – some $125 billion over the next five years.

Take the latest example. The May 2021 budget gave providers an extra $10 a day per resident to improve the quality of the meals. Some $460 million has already been spent, with an estimated $700 million to be spent this financial year. And what do providers have to do in return? Simply give an undertaking that they will report to government on a quarterly basis what they spend on food.

The royal commissioners had warned that aged care providers have a long history of not spending extra government money on what they are supposed to. So why give them a further $700 million without directly tying this money to food?

Many residents have told me they are still being served unappetising food. It seems many providers have not used this extra money on what they were supposed to.

The Aged Care Minister Greg Hunt and Minister for Aged Care Services Richard Colbeck claim that “the Morrison Government has achieved significant reform across the five pillars of its five-year plan to deliver respect, care and dignity for every senior Australian”.

“We responded to the (Aged Care royal commissioners’) recommendations and are now implementing this once-in-a-generation reform that puts senior Australians first,” Minister Hunt said.

Seriously? There has been practically no progress on most of the recommendations one year after the royal commissioners released their final report.

Labor has proposed some measures to improve aged care in Australia. However so much more is needed to solve the crisis in aged care.

The failure of successive governments to respond meaningfully to the crisis in aged care has prompted me to put my hand up to replace the Aged Care Minister in his seat of Flinders. After years of advocating from the sidelines, it is clear aged care needs a strong advocate in parliament. 

Dr Sarah Russell is the Voices endorsed Independent Candidate.