Our understaffed, poorly led aged care regulator has major problems

The aged care quality regulator established by the Coalition has invisible leadership, is badly short-staffed, has failed to handle aged care complaints effectively, and has relied too much on outsourced quality assessment, among myriad other findings by a review undertaken by public service veteran and former finance secretary David Tune.

The Aged Care Quality and Safety Commission was established in 2018 and covered residential and home aged care, and struggled to cope with the massive impact of the pandemic on aged care the following year. The aged care royal commission recommended the body be dumped entirely and replaced with an independent, board-led authority. Instead additional roles and functions have been handed to the commission under both the Morrison and Albanese governments.

Tune thinks there’s no point establishing a new authority, and instead points out that many of the additional functions come with “terminating” funding (funding that will have to be renewed when the current allocation expires). This means that technically the commission faces a funding decline in coming years — though the May budget renewed funding for some of the measures.

But the picture he paints (in a report that is a model of clarity and which should serve as a template for reviews of agencies) is of a near-dysfunctional regulator with areas missing one-third of their staff, overwhelmed by complaints, hamstrung by its legislation — to be remedied by the forthcoming aged care act — and lacking visibility with the public:

• Commissioner Janet Anderson “within the commission … is highly visible … Externally, however, the review has heard that while the commissioner does attend a range of fora, she is less visible to the sector and the community more generally”;
• “The current leadership structure is problematic” and needs more senior SES to manage a workforce that has grown from around 400 to 1400 since 2019;
• The commission has a staff vacancy rate of 20%, and 34% in corporate services, with IT resources stretched thin and assessments outsourced to third-party providers;
• There have been “accusations of bullying, harassment and concerning work practices leading to toxic cultures and high staff turnovers … The number of staff exiting the commission, the staff exit survey data, APS employee census data and staff input sessions identify significant issues within the commission in terms of culture, structure and leadership”;
• The commission’s cybersecurity is characterised by “a number of high to extreme risks … A significant uplift activity was required to implement the controls required to meet the risk appetite determined by the commission. The commission has a defined cyber security [Essential 8] uplift program under way to address the risks identified in the review, however, the priority placed on the uplift work program does not match the residual risk faced by the commission. This work program requires a significant level of acceleration”;
• The absence of enough accreditors has led to inconsistent and sometimes poor accreditation decisions: “The review heard examples of … decision-makers refusing to change assessment reports after factual errors had been corrected and reports of providers being fearful of the commission’s reaction to them raising concerns about assessment processes and experiences.
• “Some stakeholders believe the commission sides with providers as evidence provided by complainants may be contrary to the commission’s findings and complainants are not able to review material from the provider. Other issues included inconsistency in complaints handling across states, concerns around the transparency of outcomes and not being able to resolve complaints in a timely manner, as evidenced by the commission not meeting its performance measure related to complaints resolution” (a permanent aged care complaints commissioner will shortly be established to take over complaints-handling, with dedicated staff).

Rather than abolishing the commission or establishing a board to lead the agency, Tune prefers to not waste what reform efforts have been commenced. Instead he suggests retaining the existing model but with more leadership and a dramatically strengthened, larger and more independent advisory board to scrutinise the commission and advise the minister for aged care on the commission’s performance.

A number of the major issues the commission has faced have been external — outdated aged care legislation, labour shortages and, above all, the pandemic. Others such as cybersecurity are shared across the public sector. But they also bear the stamp of a government that didn’t take effective regulation seriously, that was content to persist with a demonstrably failed, business-as-usual model with aged care until political necessity forced it to commence a royal commission.

During the pandemic, the Australian Public Service generally performed well, and state-run frontline health services were outstanding, but the regulator in charge of aged care was a conspicuous failure and completely out of its depth.

Since then, it has been unable to provide reassurance to aged care users and their families that aged care providers face effective regulation, or that facilities that should not be in use are not being accredited; nor has it been able to provide certainty for the industry.