Promise check: Give the aged care regulator greater powers to obtain documents and enter facilities in order to protect residents

Promise check: Give the aged care regulator greater powers to obtain documents and enter facilities in order to protect residents

At the 2022 election, Labor promised to give the aged care regulator greater powers to obtain documents and enter facilities in order to protect residents. Here's how that promise is tracking.

Two pairs of hands holding

Labor went to the election promising a raft of changes to Australia's ailing aged care system after years of damning stories stemming from the Royal Commission into Aged Care Safety and Quality.

The party made a series of pledges in a joint media release on April 3, 2022, issued by Labor leader Anthony Albanese, then-shadow minister for health and ageing Mark Butler and then-shadow minister for senior Australians and aged care services Clare O'Neil.

Among these was to "[g]ive stronger investigative powers to the Aged Care Quality and Safety Commission, including powers to enter and remain in an aged care facility at any time to ensure the safety of residents, as well as full access to documents and records".

A pre-election policy document also promised "stronger investigative powers" for the aged care regulator.

"This will include powers to enter and remain in an aged care facility at any time, to ensure the safety of residents, as well as full access to documents and records."

"This change will put the dignity and safety of residents first."

Assessing the promise

The Aged Care Quality and Safety Commission (ACQSC) is the regulator for government-approved residential aged care providers.

Penelope Eden, a partner with MinterEllison and expert in aged care law, told the promise tracker that the regulator already had some powers to investigate aged care facilities prior to the election, which were set out in legislation.

Officials could, for example, enter the premises — under warrant or with the consent of the provider — to determine whether a facility was complying with its care responsibilities.

They could also exercise "search powers" allowing them to request documents and records or to observe any activity conducted on the premises, with consent.

The shortcomings of these powers were detailed in the final report of the aged care royal commission, which said:

"While the Aged Care Quality and Safety Commission is able to conduct unannounced visits, it does not have the power to enter premises without the consent of the provider."

"Unannounced visits are an important tool in assessing care," it said, adding that "the occupier of the premises can simply refuse consent to entry of the premises and any person to whom questions are directed can simply refuse to answer".

The commission recommended strengthening the regulator's powers through legislative changes.

These would allow officials to enter residential facilities "without warrant or consent at all reasonable times", as well as "at other times" in cases where residents were at immediate risk.

"When on the premises, regulatory officials should have full and free access to documents, goods or other property," and powers "to inspect, examine, make copies of or take extracts from any documents".

This promise will be considered delivered if the government provides stronger powers for the aged care regulator, allowing it to enter and remain on the premises of residential aged care providers at any time and gain full access to their documents and records.

19 May 2023

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19 May 2023

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