Cth Bill to Introduce Royal Commission Aged Care Reforms

Tuesday 1 June 2021 @ 10.33 a.m. | Legal Research

On 27 May 2021, the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 (Cth) (‘the Bill’) was introduced to the House of Representatives by Federal Minister for Health Greg Hunt ('the Minister'). The Bill was subsequently referred to the Senate Community Affairs Legislation Committee and is due for report on 11 June 2021.

Purpose of the Bill

In his second reading speech, the Minister stated that the Bill will introduce:

“a number of urgent amendments to ensure senior Australians receive the high-quality and safe aged-care services they deserve.”

In particular, the Bill will implement three measures in response to recommendations put forward by the Royal Commission into Aged Care Quality and Safety. The measures relate to:

  1. the use and regulation of restrictive practices;
  2. home care assurance reviews; and
  3. the abolition of the Aged Care Financing Authority ('the ACFA').

Amendments relating to restrictive practices

If assented, the Bill would amend the Aged Care Act 1997 (Cth) ('the Aged Care Act') to introduce a new responsibility for approved aged care providers in relation to the quality of care they provide. The Bill would require that approved providers of care specified in the Quality of Care Principles 2014 (Cth) ('the Principles') to:

“ensure a restrictive practice in relation to those recipients is only used in the circumstances set out in those Principles.”

Additionally, the Bill proposes to remove the terms ‘physical restraint’ and ‘chemical restraint’ from the Aged Care Act and introduce the following definition of ‘restrictive practice’:

“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.”

The Bill's Explanatory Memorandum notes that this new definition aligns with the definition applied under the National Disability Insurance Scheme. Therefore, updating this definition would bring aged care services in line with the disability sector. The Bill proposes a list of matters relating to restrictive practices, which must be included in the Principles. Some examples include:

  • a requirement that a restrictive practice is only to be used as a last resort to prevent harm to the care recipient or other persons, and only after consideration of the likely impact of using the practice;

  • requirements for the consideration, use and documentation of alternative strategies before the use of restrictive practices;

  • requirements that a restrictive practice is used only when necessary and in proportion to the risk of harm to the care recipient and other persons;

  • requirements that a restrictive practice is to be used in the least restrictive form, and for the shortest amount of time necessary to prevent harm for all parties involved;

  • a requirement that informed consent is given to the use of a restrictive practice;

  • a requirement that the use of a restrictive practice is consistent with any care recipients rights under the User Rights Principles 2014 (Cth); and

  • a requirement that arrangements must be made in relation to the monitoring and review of the use of a restrictive practice.

The Bill also proposes powers to allow for future specification that a particular practice is considered a ‘restrictive practice’ and provides additional clarification and concepts about what constitutes a ‘restrictive practice’.

The Bill also seeks to provide the Aged Care Quality and Safety Commissioner with powers to monitor approved providers’ compliance with their responsibilities in relation to the use of restrictive practices. In his second reading speech, the Minister stated:

"The powers of the Aged Care Quality and Safety Commissioner will be expanded to include the ability to give a written notice if a provider does not comply with its responsibilities relating to the use of restrictive practices. The commissioner also has the ability to apply for a civil penalty order against a provider if they do not comply with the written notice."

Amendments relating to home care assurance reviews

Schedule 2 of the Bill seeks to establish a statutory framework for home care assurance reviews. If assented, the Bill would provide the Secretary with the power to conduct ‘home care assurance reviews’ for the purposes of:

  • assuring the effective and efficient delivery and administration of home care; and
  • informing  and educating approved providers in relation to home care service policies.

Further, if the Secretary reasonably believes that an approved corporate provider has information or documents relevant to the subject matter of an assurance review, the amendments seek to allow the Secretary powers to issue a written notice to the provider. The notice would require the provider to give information or documents or answer questions as required. The Bill proposes a civil penalty of 30 penalty units for failure to comply with such a notice. 

Amendments relating to the Aged Care Financing Authority

Schedule 3 of the Bill contains amendments which seek to remove the requirement for the Minister to establish the ACFA. According to the Bill's Explanatory Memorandum, following the removal of this requirement, the ACFA will be abolished, and a new advisory body will be established instead. In his second reading speech, the Minister stated:

"The government has agreed to establish an advisory group to replace ACFA which will commence operations from July 2021 to ensure the government continues to receive advice on financing issues of the aged-care sector."

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Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Bill 2021 (Cth) and explanatory materials available on TimeBase's LawOne Service 

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