A resident can expect to receive care, services and accommodation that meet their needs and which meet the requirements of the quality assurance framework and consumer protections under the Aged Care Act and Principles.
Section 54-1 of the Aged Care Act sets out the responsibilities of providers in relation to the quality of the care that they provide, which include:
• providing the care and services specified in schedule 1 of the Quality of Care Principles at a quality that is consistent with residents’ rights under the User Rights Principles;
• maintaining an adequate number of appropriately skilled staff to ensure that residents’ care needs are met; and
• complying with the Accreditation Standards.
All residents are entitled to receive hotel services including bedding, furnishings, cleaning, utilities, laundry, meals and refreshments, social activities and waste disposal. All residents are entitled to assistance with activities of daily living such as showering, dressing, eating, personal hygiene, continence management, communication and managing medication.
Residents with greater need are also entitled to receive nursing care together with therapy services such as physiotherapy, podiatry and speech therapy. They are also entitled to be provided with items such as toiletry goods, basic medical and pharmaceutical supplies, continence management products and mobility aids (see “Specified care and services for residential care services” in schedule 1 of the Quality of Care Principles).
A residential care service must be accredited by the agency for the provider to be eligible to receive Australian Government funding (pt 2-6 Aged Care Act). The four Accreditation Standards are set out in schedule 2 of the Quality of Care Principles 2014. They are:
1 management systems, staffing and organisational development;
2 health and personal care;
3 care recipient lifestyle; and
4 physical environment and safe systems.
Each Standard consists of a principle and a number of expected outcomes. There are 44 expected outcomes across the four Standards. All residential care services are accredited against, and monitored for their compliance with the Standards by the agency. If non-compliance is found, the agency may take action such as putting the service on a timetable for improvement or revoking or varying the service’s accreditation.
The Accreditation Grant Principles 2011 set out the procedures that the Agency undertakes to accredit a service as well as the ongoing responsibilities of the Agency for services that have received accreditation. For further information about the accreditation process, see www.accreditation.org.au.
The Charter of Residents’ Rights and Responsibilities (sch 1 User Rights Principles 2014) (“Charter”) sets out some important rights of residents. Providers are required to comply with these rights and face action from the Department of Health if they do not comply. The basic philosophy of the Charter is that a residential care service is each resident’s home, and that as far as possible a resident should be able to continue living as they choose. The Charter includes that each resident has the right to:
• full and effective use of their personal, civil, legal and consumer rights;
• quality care that is appropriate to their needs;
• be treated with dignity and respect, and live without exploitation, abuse or neglect;
• personal privacy;
• live in a safe, secure and homelike environment;
• be treated as an individual and to have their individual preferences taken into account and treated with respect;
• maintain independence and personal choice;
• select and maintain social and personal relationships with another person without fear, criticism or restriction;
• complain and to take action to resolve disputes;
• have access to advocates and other avenues of redress; and
• be free from reprisal, or a well-founded fear of reprisal, in any form for taking action to enforce their rights.
A resident has the right to remain in their original room or bed for the duration of their stay in a residential care service, except in circumstances where:
• the resident requests a move; or
• the resident agrees to move to another place in the service after being fully consulted and without being subject to any pressure; or
• the move is necessary to carry out repairs or improvements to the premises, in which case the resident has the right to return to the bed or room (if it continues to exist) when the repairs or improvements are completed; or
• the place occupied by the resident becomes an extra service place and the resident elects not to pay the extra service fee; or
• the move is necessary on genuine medical grounds (as assessed by either an ACAS or two medical or other health practitioners competent to conduct such an assessment, one of whom must be independent of the service and chosen by the resident) (s 23.15 User Rights Principles).
A resident who “ages in place” cannot be required to move to a different bed or room in the service when they need high level care unless one of the above circumstances applies. See “Leaving a residential care service”, for information about security of tenure.
A permanent resident has the right to stay and receive care for the remainder of their life, except when:
• the service is closing; or
• the service no longer provides accommodation and care suitable for the resident, having regard to their long-term assessed needs, and the provider has not agreed to provide care of the kind that the resident presently needs; or
• the resident no longer needs the care provided; or
• the resident has not paid any agreed fee to the provider within 42 days after the day the fee is payable, for a reason within the resident’s control; or
• the resident has intentionally caused serious damage to the service or serious injury to the provider, an employee or another resident; or
• the resident is away from the service for a continuous period of at least seven days for a reason not permitted under the Aged Care Act (s 23.5 User Rights Principles).
These are the only circumstances in which a provider may ask a resident to leave.
Where the provider alleges that the service no longer provides accommodation and care suitable for the resident, the long-term care needs of the resident must be assessed by an ACAS or two medical or other health practitioners competent to conduct such an assessment, one of whom must be independent of the service and chosen by the resident. If a low-care resident enters a service on an “ageing in place” basis, it is supposed to mean that the resident can continue to live in the service if their care needs increase and they need high level care. This may be relevant to the question of whether the service provider has “agreed to provide care of the kind that the resident presently needs”.
Where the provider alleges that the resident no longer needs the care provided, the needs of the resident must be assessed by an ACAS.
If a provider asks a resident to leave, the provider must give at least 14 days written notice. However, the provider must not take action to make the resident leave, or imply that they must leave, before suitable alternative accommodation is available that meets the resident’s long-term assessed needs, and which the resident can afford, even though the 14 days notice may have expired (User Rights Principles 2014). The written notice must include the reasons for the decision and the resident’s right to access independent complaints processes and an advocacy service (User Rights Principles 2014).
It is important for residents to seek advice when a provider says that they have to leave. There are often occasions when providers claim that a resident must leave, or that a resident is not to return to the service from hospital, when the provider is not entitled to require the resident to leave or to not return. If a resident (or their representative) has any concerns about security of tenure, they should contact Elder Rights Advocacy for information and advice as soon as possible (see “Advocacy services”).
If a resident decides to leave a service, seven days’ written notice must be given to the provider only if the resident agreement provides for it. An agreement cannot require a resident to give more than seven days notice.
If a resident dies or leaves a service, any daily fees paid in advance in respect of a period occurring after the resident dies or leaves must be refunded. It is implicit that if a resident decides to leave and has not paid fees in advance, they can only be charged fees up to the day they leave.