AGED CARE Alert: NSW Legislative Council report on nursing requirements in NSW aged care facilities

Nov 25 2015

Publications

Background

On 29 October 2015 the General Purpose Standing Committee No. 3 (Committee) of the NSW Legislative Council released its report into registered nurses in NSW nursing homes (Report).

The Report, commissioned in order to investigate the impact of legislative changes to the Commonwealth’s Aged Care Act 1997 (Cth) (Aged Care Act) on the NSW aged care sector, focuses on determining the degree to which at least one registered nurse should be required to be on duty at all times in NSW aged care facilities.  

Current regulatory environment

The Commonwealth has primary responsibility for regulating the delivery of aged care in Australia. The Australian Aged Care Quality Agency (Quality Agency) monitors aged care facilities’ compliance with accreditation standards. A failure to meet these standards results in the facility becoming ineligible for Commonwealth subsidies.

Aged care providers in NSW are subject to an additional regulatory measure. The Public Health Act 2010 (NSW) (Public Health Act) stipulates that nursing homes, defined as aged care facilities in which ‘a high level of residential care’ is provided to at least one patient, must have a registered nurse on duty at all times.

What constitutes a high level of residential care was defined in the Aged Care Act until 2014, after which the Commonwealth removed the distinction between high level and low level care. In so doing, it removed the criterion previously used in NSW to determine whether a facility is subject to the registered nurse requirement. The question addressed in the Report is how to determine which aged care providers, if any, are required to have a registered nurse on duty at all times. It outlines three options going forward, namely:

  • Option 1: removing the requirement for any NSW aged care facility to have a registered nurse on duty at all times and leaving the regulation of aged care facilities to the Commonwealth;
  • Option 2: extending the requirement for on-duty registered nurses to all NSW aged care facilities, regardless of the type of care that they provide; or
  • Option 3: maintaining the rule that only aged care facilities delivering a high level of residential care are required to have a registered nurse on duty at all times.

Proposed amendments

The Report recommends the third option, calling on the NSW Government to reproduce the Commonwealth’s definition of ‘high level of residential care’ in the Public Health Act, notwithstanding that the Commonwealth no longer uses this metric.

The Committee explains that the extra protection provided by the presence of registered nurses in NSW nursing homes is necessary due to several weaknesses with the Commonwealth’s regulatory framework. In particular, the Report states that the Commonwealth’s reliance on accreditation standards is problematic, because it means that the review of nursing homes is conducted via paperwork instead of unannounced inspections and dialogue with residents and their families.

However, acknowledging that ‘not all high care needs may necessitate the care of a registered nurse’, the Report also recommends that nursing homes should be able to apply for exemptions from the legislative requirement if they can demonstrate that they can provide an adequate level of care without a registered nurse on duty at all times.

As an example of a resident who might require a high level of residential care but who may not benefit from the constant presence of a registered nurse, the Report describes a dementia patient whose behavioural difficulties bring him or her within the definition of high level care, but whose healthcare needs are relatively uncomplicated.

Cost of providing registered nurses

The Report explains that if the requirement for on-duty nurses was extended to all aged care facilities in NSW, then many providers would be unable to meet the cost of employing extra nurses. Indeed, several aged care providers referred to in the Report told the Committee that they would have to cease operating if they became subject to this rule.

Extending the application of the registered nurse requirement to all aged care facilities would also place a disproportionate burden on facilities in rural or regional areas. The Report notes that many regional facilities are simply unable to recruit enough registered nurses to provide an on-call service at all times.

To assist regional nursing homes in meeting their obligations regarding the provision of registered nurses, the Committee calls on the NSW Government to introduce additional programs and incentives for registered nurses to train and work in regional areas. In addition, it calls for the Commonwealth to provide more funding for nursing students to study at regional universities and to undertake rural placements.

The Report also advocates for the greater use of technology to improve the quality of care in regional facilities. It states that in many cases registered nurses need not be physically present in nursing homes in order to provide effective assistance to residents. To this end, it recommends that the NSW Government promotes the Telehealth model of care provision, which involves consultations between residents and hospitals via videoconferencing. Usually, residents will be given iPads with which to communicate with medical professionals. After the examination, hospitals can dispatch ambulances where appropriate.

Enforcement of nursing home regulation

The Report makes several recommendations in relation to the reform of compliance mechanisms in the aged care sector. Currently, the requirement for nursing homes and other facilities which provide a high level of residential care to have at least one registered nurse on duty at all times is monitored through a complaints-based system, meaning that adherence is only investigated after a complaint has been made. The Report characterises such an arrangement as ‘grossly inadequate’ and argues for its replacement with a system involving compliance audits and periodic reviews, conducted either by NSW Health or a newly created statutory body. 

Another barrier to the effective enforcement of the registered nurse requirement is widespread confusion regarding the appropriate body to which to address complaints about NSW aged care facilities. The Report lists several bodies that have overlapping jurisdiction with respect to aged care in Australia, including the Health Care Practitioner Regulatory Agency, the Quality Agency, the Aged Care Commissioner, the My Aged Care website, the NSW Health Care Complaints Commission and NSW Health.

The Report recommends that the Commonwealth disseminate clear information, to be publicised in all aged care facilities and provided to residents before they move into the facility, about the appropriate body to which to direct complaints. It also recommends that the Commonwealth’s accreditation standards be supplemented with a program of unannounced visits to aged care facilities, the introduction of minimum staffing ratios and the establishment of a licensing body for aged care workers. Finally, it calls for the NSW Government to adopt a ‘Working with Older People Check’ modelled on the Working with Children Check.

Next steps

The Minister for Health has not yet responded to the Report, however a formal government response is due on 29 April 2016. The Committee recognises that a balance must be struck between the presence of nurses to assure quality of care on the one hand, and the availability of exemptions and new technology to meet the geographic and financial realities of the sector on the other. We look forward to the release of more details over the coming months as to the contemplated changes.

Changes to the Aged Care Act

The Report comes in the context of a broader shake-up of the Australian aged care sector, with the Commonwealth’s Omnibus Repeal Day (Spring 2015) Bill 2015 currently before the House of Representatives. If passed, the bill will remove the requirement that providers notify the Department of Health of any changes to key personnel, unless the change materially affects the provider’s suitability to offer aged care services. It also reduces the extent to which the Commonwealth controls who can and cannot be an adviser in respect of Aged Care Funding Instrument appraisals.

Written by:

Lucinda Smith | Partner | +61 2 9020 5748 | lsmith@tglaw.com.au

Sandra Ivanovic | Senior Associate | +61 2 8248 3459 | sivanovic@tglaw.com.au

Daniel Zwi | Lawyer | +61 2 8248 5825 | djzwi@tglaw.com.au