Brett Holmes - New South Wales Nurses and Midwives' Association

Ms Kerrie Westcott
Director
Legislation Section, Transition Branch
Ageing and Aged Care Division
Canberra ACT 2601

Via e-mail:

21 December 2012

Dear Ms Westcott

RE: Implementing the Living Longer Living Better aged care reform package:

Proposed Changes to the Aged Care Act 1997 and Related Legislation.

Please find the attached submission from the NSW Nurses and Midwives' Association to the Department of Health and Ageing to contribute to development of the legislative amendments required to implement the Living Longer Living Better aged care reform package.

Should you require additional information please contact Stella Topaz, Professional Officer, on or 02 8595 1234.

Yours sincerely

Brett Holmes
General Secretary
Submission to the

Department of Health and Ageing

Proposed Changes to the Aged Care Act 1997

December 2012

Introduction

The NSW Nurses and Midwives' Association is the industrial and professional body that represents over 57,000 nurses and midwives in New South Wales, and works in association with the Australian Nursing Federation (AN F). The membership of the NSWNMA comprises all those who perform nursing work: assistants in nursing, who are unregulated, enrolled nurses, registered nurses and registered midwives at all levels including management and education.

With a strong membership in the aged care sector, and a strong commitment to quality of care for older Australians, the Association continues to take an active role in the aged care sector. This includes taking part in the many stages of the aged care reform process during the 'Caring for Older Australians' Inquiry and the Living Longer Living Better announcements. We now welcome the opportunity to provide input to the review of the Aged Care Act 1997 and regulations as part of this ongoing reform process.

Overall context of reforms

The Association appreciates that the context for changes to the Act is to support the Living Longer Living Better reform process. This submission from the Association predominantly focuses on how the proposed changes may impact on safety and quality of care, related to our membership delivering care to older Australians. We are primarily concerned with the nursing team in aged care being supported to provide the right level of care with proper resources, including staffing number, skill mix, level of expertise, equipment and support services.

Specific Areas of Comment

Removing the high/low care distinction to provide greater choice and ensure funding is based on assessed care needs.

The Association supports the government's commitment to increase consumer choice and ensure funding matches care needs. Staffing in residential aged care must be tailored to care needs and the removal of the distinction between high and low care must serve to improve access to enough skilled staff, resources and support services to deliver this care.

However, the Association has two key concerns related to Part 1:

· that the legislative change fails to ensure funding is tied to care provision; and

· that removing the distinction between high and low care could have a detrimental effect on NSW legislation, the Public Health Act 2010, No 127, which includes the requirement for a registered nurse on duty at all times in a nursing home. 1

Relationship between assessed care needs and funding levels:

The Association is concerned that the assessment and funding system continues to allocate funding based on care needs, but does little to ensure it is spent directly on care provision, especially in regards to staffing numbers and skill mix.

The majority of people in residential aged care have high care needs and 55% are aged over 85 years and over.2 With increased life expectancy, the preference to remain at home where possible, and the availability of increased services to support this, people are entering residential aged care at an older age, and are likely to be more frail and to have more complex care needs upon admission.

The entry to residential care is often preceded by illness, disability, cognitive decline, behavioral challenges or reduced mobility where care needs are not able to be met in a person's own home by themselves, loved ones, paid services or a combination.

Staffing in residential aged care must be tailored to these high and complex needs and the removal of the distinction between high and low care must serve to improve access to care by enough skilled staff, and resources and support services to deliver this care.

Unfortunately we continue to hear from our members and from coroners' reports such as the example referenced here3

, examples of grossly inadequate staffing numbers and skill mix even where a home has met accreditation requirements.

The Federal government's position as repeated in numerous letters of response to the Association on this matter, reflects the following statement in the Productivity Commission report:

"there does not seem to be a need to introduce mandatory staffing requirements. If staffing levels are considered to be inadequate, then the accreditation process (supported by the complaints process) should be the mechanism by which such inadequacies are rectified." 4

The Association rejects this as an adequate approach: it is a reactionary model of waiting for an adverse event to occur before addressing the inadequacy, and it relies upon subjective measures such as "appropriate knowledge and skill" and "appropriately skilled and qualified staff sufficient to ensure that services are delivered in accordance with these standards and the residential care service's philosophy and objectives."

There are no definitions provided for "appropriate" or "sufficient".

Relationship between the proposed changes to the Aged Care Act and the NSW Public Health Act 2010

Legislation in NSW requires that "a registered nurse is on duty in the nursing home at all times" and ensures that older people with high care needs in a nursing home have access to the care of a registered nurse at all times.

The Association's position is that, as a minimum, where there are residents with high care needs, (and consequently high care funding), a registered nurse should be required on duty. However, this is not the case in 'ageing in place' or hostel environments, (despite these being predominantly occupied by residents with high care needs). However, it is a requirement in nursing homes providing high care in NSW. The NSW Public Health Act includes reference to the Aged Care Act 1997 in its definitions and is therefore potentially affected by changes to the Act. It is vital that changes to the Aged Care Act 1997 when proposed as positive changes do not compromise this.

There are 885 homes in NSW5, about 425 of which are nursing homes under the definition of the state Public Health Act 2010, No 127. It is of great concern that removal of the definitions of High Care and Low Care could compromise the intention and operation of the Public Health Act 1997 and weaken the quality of care to older people.

The intention of the NSW legislation has always been clear: to ensure that those residents with high and complex care needs have access to a registered nurse on duty at all times.

There is compelling evidence nationally and internationally that links nurse staffing to patient outcomes, including a 3-12% reduction in adverse outcomes6. The presence of sufficient numbers of registered nurses is a critical component to the overall staffing and skill mix needed to provide high quality aged care. Reducing the number of registered nurses in nursing skill mix directly contributes to increased complications and sentinel events, and poorer outcomes.

When the Nursing Home Act 1988 was repealed, requirements for registered nurses in nursing homes in NSW were included into Section 52 of the Public Health Act 1991 and the regulations. In the second reading of the Bill in November 2004, the Hon. John Della Bosca stated:

" ... that any changes do not allow facilities providing care to the most dependent residents to avoid their obligations to have a registered nurse on duty at all times and to appoint a director of nursing" and that this is to ... "maintain nurse staffing levels for the benefit of nursing home residents." 7

Subsequently, this intention and practice has been carried over onto the Public Health Act 2010, No 127, Division 4, Nursing Homes, 104, with one amendment.

We are very concerned that the changes to the Aged Care Act 1997 will undermine the intention and the operation of the Public Health Act 2010 in NSW.

This is in direct opposition to the stated intention of this change, which is to "ensure funding is commensurate with care needs"s. It appears instead to threaten an important staffing regulation in NSW, and undermine quality of care to older people with high care needs in nursing homes in NSW.

Recommendations:

1. That the intention to ensure that funding is based on care needs should also ensure that funding is directly spent on provision of care, including staffing number and skill mix.

2. That all residents assessed as having high care needs and funded for high care should have access to a registered nurse on duty at all times.

3. That removing the distinction between high and low care does not undermine the staffing requirements in aged care in NSW, in the Public Health Act 2010.

There will be greater scope for care recipients and their families to purchase additional amenities or supplementary care services from their residential care provider.

In response to this change, the Association urges the government to ensure very clear definitions of "Care" and "Service" so that care recipients and their families are not under any confusion about their rights to quality of care. The wording already creates some potential confusion when stating "approved providers of residential care will continue to be able to offer care on a dedicated 'extra service basis.9" The onus must be on the provider to ensure all recipients have access to quality of care, and that extra 'services' are not in any way confused with 'care'. Through our work with nurses and consumers, we continue to hear examples of such confusion, including where items such as incontinence pads and wound dressings are sub-standard or 'rationed' and the onus put back on the recipient or family to fund extra or alternatives if not satisfied. The implication is that the item is 'extra' to the care required to dress the wound or change the pad. While these incidents should be dealt with through the advocacy or complaints process, it is vital that changes to this area do not in any way increase the risk of these incidents occurring.

Tied to this, the 'opt in out out' system must be smooth and consumer friendly, and should ensure that someone opting out doesn't inadvertently sustain undue disruption such as by cancelling certain extra services and being relocated from a room or area where they are settled and content.

Recommendations:

4. That the definitions of 'care', extra care' and 'services' are explicit and based on supporting the principles of informed choice and resident rights.

5. That the 'opt in opt out' system is based on positive choice and does not carry unexpected disruption or perceived penalties for the resident or their family.

Introduction of an Additional Behaviour Supplement

The Association supports the introduction of an additional behavioural supplement to enable approved providers to provide more appropriate nursing care to people diagnosed with dementia.

In order to deliver appropriate care for people with challenging behaviours associated with dementia, it is vital that additional funding must strengthen skill mix of the care staff that provide the daily care to residents with dementia. Dementia is a complex illness, requiring clinical expertise and skilled staff at a day to day level. It still carries much stigma in the general community, and it is vital that there are clinically skilled and qualified staff providing care at a daily level.. Without attention to proper staffing and skill mix, this initiative cannot meet its primary objective.

Recommendation:

6. That payment of the additional behaviour supplement is dependent upon a model of care by the approved provider that ensures dementia care is provided by appropriately skilled registered nurses, with enrolled nurses and assistants in nursing working under the direct supervision of a registered nurse.

Conclusion

Across all the proposed changes, the Association draws attention to the fundamental

need to ensure staffing matches care needs, and that this must be the concern of not only the approved providers, but of the government. In improving residential care and rolling out innovative community care packages including consumer directed care, it is vital that older people are afforded the high quality of care required to maintain health, prevent illness, treat acute and chronic conditions and illnesses, and support excellent palliative and end of life care when this time presents. Central to this care is skilled and effective staffing, with registered nurses at the core. The Association welcomes any opportunity to have continued input to this extensive reform process and in particular to contribute to strengthening the aged care workforce and the quality of care for older Australians.

1. 1 104, Division 4, Nursing Homes, NSW Public Health Act 201 0, No. 127.

2. 2 pXXIV, Caring for Older Australians, Productivity Commission Inquiry Report, Vol 1, No 53, 28 June 2011.