A scathing report on the ineffectiveness of the response of governments and the aged care sectors to the pandemic has been handed to the Governor-General and tabled in Australian parliament. But the report, and COVID-19's tragic impact on people living in aged care and their families, is the result of systemic problems in an aged care sector that needs reforming now.
Aged care and COVID-19: a special report follows the Royal Commission's August hearing. It makes six recommendations, including that the Australian Government report to parliament no later than December 1 on the progress of their implementation.
The commission outline four areas for immediate Australian government action to support those who have suffered the most - residents, their families and aged care staff. They are: funding for adequate staff to accommodate external visitors; a Medicare item to increase allied health and mental health services for aged care residents during the pandemic; the publishing of a national aged care plan and establishment of a national aged care advisory body; and better infection control measures in aged care homes.
It is telling but appropriate that the commission issue this report ahead of its final report - due late February of next year.
What we saw unfold in Victoria's aged care homes is a nightmare that can easily happen here if there are subsequent waves of infection and community transmission.
At the commission's August hearing, senior counsel assisting claimed that federal authorities had failed to make a specific plan for COVID-19 in residential aged care facilities and was "underprepared". Tragically, almost 70 per cent of all COVID-19 deaths in Australia have been related to aged care.
Why are we seeing so many COVID-19 deaths in aged care? It is not just that older Australians are more vulnerable to COVID-19.
The reasons for the crisis are systemic. We have a chronically underfunded and poorly regulated aged care sector. It is staffed by unskilled or inadequately trained workers not equipped to deal with high-grade medical issues - and certainly not infection control. Aged care facilities cannot be proxy hospitals.
There are good aged care facilities who have averted COVID-19 outbreaks through proper planning, but this is atypical.
As the commission says, we must learn quickly from recent tragic deaths and suffering to prevent more unnecessary deaths.
We must also hold those responsible to account. I do not agree with the commission, federal Health Department head Dr Brendan Murphy, or federal Aged Care Minister Senator Colbeck, who all said we should not name facilities or apportion blame.
We would not accept that lack of transparency in any other setting. We must look at these deaths for what they are - wilful and reckless neglect and clinical mistreatment of frail elderly patients.
Coronial investigations are welcome, but government offices are full of coronial recommendations gathering dust. A coroner has the power to refer conduct to the Director of Public Prosecutions for the consideration of criminal charges. Manslaughter by criminal negligence would be the appropriate charge. However, experience shows that criminal sanctions are very unlikely. In Australia - as in the UK - we have had very few prosecutions of health providers for medically negligent manslaughter - and only one successful prosecution more than 200 years ago.
Regulation of the residential aged care system has been extremely poor. The Aged Care Quality and Safety Commission - and its predecessor - has been ineffective because it lacks independence and transparency. We have an Aged Care Actthat does not mention the word "regulation" and was written by aged care providers for providers.
We have an Aged Care Act that does not mention the word "regulation" and was written by aged care providers for providers.
The law can help hold people to account. Negligence actions by family members of aged care residents whose deaths were avoidable will identify those who have not complied with the relevant standard of care. Most importantly, it will help force system change to prevent further suffering and deaths from this pandemic or subsequent issues.
The federal government must take responsibility for the COVID-19 crisis and the broader crisis in aged care. Before this Royal Commission, there have been 20 inquiries in as many years all pointing to the same issues. Successive governments have not acted to reform our aged care system.
COVID-19 has exposed the systemic problems in an aged care sector in need of an urgent and major overhaul.
Older Australians deserve better.
Catherine Henry is a Newcastle-based health and aged care lawyer and the national spokesperson on aged care for the Australian Lawyers Alliance
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