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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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This bill seeks to amend the Aged Care Act 1997 to introduce an
additional, discretionary procedure for classification of recipients of
residential aged care and some kinds of flexible
care
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Portfolio
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Health
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Introduced
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House of Representatives on 21 October 2020
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Bill status
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Before the House of Representatives
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Significant matters in delegated legislation
2.2 In Scrutiny Digest 15 of 2020 the committee requested the minister's advice as to:
• why it is considered necessary and appropriate to leave to delegated legislation most of the elements by which a care recipients' care needs are assessed or classified;
• why (at least high-level) rules or guidance about the exercise of the secretary's power cannot be included in the primary legislation; and
• why the bill only provides that the Classification Principles 'may' specify the procedures that the secretary must follow in making an assessment as to the level of care and the appropriate classification level for a care recipient, rather than requiring that the Classification Principles 'must' make provision to guide the exercise of these powers.[2]
Minister's response[3]
2.3 The minister advised:
The broad context for the bill is that the Government considers reform to the residential care funding arrangements is necessary to put in place a better system for assessing resident care needs for the purposes of funding. The Australian Government is proposing a new classification system, the Australian National Aged Care Classification (AN-ACC) developed by the University of Wollongong (UOW) replace the outdated Aged Care Funding Instrument (ACFI) classification and funding system. Prior to commencement of the AN-ACC model it will be necessary to classify all residents under the AN-ACC model. This is what the legislation enables. During this classification period, which may take up to 12 months, funding would still be assessed and paid under the ACFI model. As a result both the ACFI and AN-ACC classification processes will apply in parallel during this time.
A legislative framework already exists and has been in place for some time, which enables classifications under ACFI. The structure of these provisions is that there is enabling legislation in Part 2.4 of the Aged Core Act 1997 (Act) supported by more detailed provisions in the Classification Principles. The current bill simply continues and mirrors the same legislative approach and framework with enabling provisions for AN-ACC in the new Part 2.4A of the Act supported by more detailed provisions in the Classification Principles. This is the same legislative approach involving delegated legislation taken to the existing ACFI classification system with matters such as procedures to assess and classify care recipients in the delegated legislation.
As well as ensuring consistency between closely related Parts of the Act, this approach ensures the detail of assessment and classification procedures under both Part 2.4A and Part 2.4 will be published side-by-side in the Classification Principles.
For consistency between Part 2.4A and Part 2.4, Part 2.4A is drafted to mirror the language of Part 2.4 of the Act, that the Classification Principles 'may' specify procedures for assessment and classification of care recipients. I can advise that, consistent with how the current legislation operates, the Principles will specify these procedures for AN-ACC.
The broad procedures involve the use of the AN-ACC assessment tool developed by the UOW, which uses a collection of clinically validated assessment scales to assess and classify residents into one of 13 classes. Information on these procedures is already publicly available in the UOW's Resource Utilisation and Classification Study (RUCS) at: https://www.health.gov.au/resources/publications/resource-utilisation-and-classification-study-rucs-reports and in the Department's consultation paper at: https://www.health.gov.au/resources/publications/proposal-for-a-new-residential-aged-care-funding-model-consultation-paper.
2.4 The committee thanks the minister for this response. The committee notes the minister's advice that during the period in which recipients of aged care are classified under the new model, funding would still be assessed and paid under the previous model, and that as a result the two classification processes will apply in parallel during this time.
2.5 While the committee also notes the minister’s advice that the bill continues and mirrors the legislative approach and framework taken to the existing classification system, the committee does not generally consider consistency with existing provisions to be a sufficient justification for leaving significant matters to delegated legislation. Furthermore, while the minister advises that the Classification Principles will specify procedures for assessment and classification of care recipients under the new model, this is not a requirement on the face of the bill.
2.6 The committee reiterates its concerns that significant matters, such as the basis on which care recipients are classified or reclassified for care, should be included in primary legislation.
2.7 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.8 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving significant matters, such as the assessment and classification of care recipients, to delegated legislation.
2.9 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.
Broad delegation of administrative power
2.10 In Scrutiny Digest 15 of 2020 the committee requested the minister's advice as to:
• why it is considered necessary to allow for the delegation of the secretary's function of assessing care recipients;
• why the criteria to whom these powers will be delegated is left to be set out in delegated legislation; and
• whether the bill can be amended to provide some legislative guidance as to the categories of people to whom those powers might be delegated.[5]
Minister's response
2.11 The minister advised:
Given the need for clinical expertise to undertake the assessments, the UOW recommended assessments be undertaken by registered nurses, occupational therapists or physiotherapists with appropriate aged care experience and independent of providers. In this context it is appropriate that the Secretary's function of assessing care recipients is delegated to these experts. Use of delegated legislation is consistent with the existing legislative framework.
Under existing subsection 96-2(1) of the Act, the Secretary may, in writing, delegate all or any of the powers and functions of the Secretary under the Act, regulations or any Principles made under the Act to a person engaged (whether as an employee or otherwise) by an agency (within the meaning of the Public Service Act 1999) or by an authority of the Commonwealth.
Under new subsection 96-2(15) of the Act, the Secretary additionally may, in writing, delegate the Secretary's powers and functions to assess care recipients under AN-ACC to a person who satisfies criteria specified in the Classification Principles for the purposes of the subsection. Delegated legislation also allows flexibility in settling and adjusting criteria, for example to cater for any criteria that may be appropriate in developing COVID-19 situations (e.g. vaccinations) and completion of assessor training modules as they are developed.
2.12 The committee thanks the minister for this response. The committee notes the minister's advice that the function of assessing care recipients should be undertaken by persons with clinical expertise with appropriate aged care experience and who are independent of providers.
2.13 The committee also notes the minister’s advice that, with respect to the delegation of the Secretary's powers and functions to assess care recipients under the new assessment model, specifying criteria in delegated legislation allows flexibility in settling and adjusting criteria, including to account for developing COVID-19 situations.
2.14 While noting this advice, the committee reiterates its scrutiny concerns that that the bill will allow the broad delegation of administrative power without any guidance on the face of the bill as to the categories of people to whom those powers might be delegated.
2.15 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.16 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of the broad delegation of the secretary's powers and functions to assess care recipients to a person who satisfies the criteria specified in the Classification Principles.
2.17 In Scrutiny Digest 15 of 2020 the committee requested the minister's advice in relation to what factors are likely to be taken into account in classifying care recipients and how computer programs will be able to appropriately evaluate and weigh such factors.[7]
Minister's response
2.18 The minister advised:
The factors taken into account in assessing and classifying residents are those set out in the UOW's RUCS reports with the proposed tool also outlined in the Department's consultation papers. Based on detailed statistical regression analysis the RUCS produced a decision rule to place a care recipient into one of the 13 AN-ACC classes such that each class is mutually exclusive and contains people with like care needs. The recommended decision rule is in the form of a computerised algorithm that translates the results of an assessment completed using the AN-ACC Assessment Tool into recommended membership of a particular class for the Secretary to approve. Given the procedure does not involve subjective or purely discretionary judgements, but instead involves an objective assessment of a care recipient's needs based on clearly defined criteria and quantifiable factors and scores, it is reasonable that a computer could be programmed to apply the requirements and follow the procedures in the proposed instrument in a logical manner without the risk of introducing errors.
2.19 The committee thanks the minister for this response. The committee notes the minister's advice that the factors taken into account in assessing and classifying residents are those set out in the University of Wollongong's Resource Utilisation and Classification Study reports, and that the proposed tool is outlined in the Department's consultation papers. The minister advises that the procedure does not involve subjective or purely discretionary judgements, but instead involves an objective assessment of a care recipient's needs based on clearly defined criteria and quantifiable factors and scores.
2.20 While noting the minister’s advice, the committee reiterates its scrutiny concerns in relation to the power for computerised decision-making in proposed section 29C-8 of the bill. The committee reiterates that administrative law typically requires decision makers to engage in an active intellectual process in respect of the decisions they are required or empowered to make. A failure to engage in such processes—for example, where decisions are made by computer rather than by a person—may lead to legal error. In addition, there are risks that the use of an automated decision-making process may operate as a fetter on discretionary power, by inflexibly applying predetermined criteria to decisions that should be made on the merits of the individual case. These matters are particularly relevant to more complex or discretionary decisions, and circumstances where the exercise of a statutory power is conditioned on the decision-maker taking specified matters into account or forming a particular state of mind.
2.21 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.22 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of permitting the use of computer programs for making decisions on the classification of aged care recipients.
2.23 In Scrutiny Digest 15 of 2020 the committee requested the minister's advice as to why it is necessary to allow a delegate of the secretary to make a record of, use or disclose identifiable personal information about an aged care recipient for the purposes of monitoring, reporting on, or conducting research into the general quality or safety of aged care, or the level of need in the community. The committee also requested the minister's advice as to the appropriateness of amending the bill to ensure that only de-identifiable information about an aged care recipient is able to be recorded, used or disclosed for this broader purpose.[9]
Minister's response
2.24 The minister advised:
The committee requests my advice as to why it is necessary to allow a delegate of the Secretary to make a record of, use, or disclose identifiable personal information about an aged care recipient for the purposes of monitoring, reporting on, or conducting research into the general quality or safety of aged care, or the level of need in the community.
The committee also requests my advice as to the appropriateness of amending the bill to ensure that only de-identifiable information about an aged care recipient is able to be recorded, used or disclosed for this broader purpose.
This comment relates to the proposed amendment through the bill of section 86-4 of the Act to extend this section to include assessments made under the new Part 2.4A, and to include the new subsection 86-4(d), allowing use of protected information for monitoring, reporting on, and conducting research into, the quality or safety of aged care.
Using the powers created by the bill to introduce the AN-ACC assessment and classification procedures will create a longitudinal data series recording progression in the state of health of recipients of residential aged care against each of eight clinically validated assessment scales Included in the AN-ACC Assessment Tool. This will be an important data set to aid understanding of frailty issues in the population and policy settings such as comparison of how quickly or slowly the health status of people with like care needs decline.
However, I recognise the benefit of using the new care recipient data for monitoring and research purposes principally lies in pooling care recipient data at the level of a residential care service, or above. The Government is open to amending the existing subsection 86-4(c) and the new subsection 86-4(d) to apply to only de-identified data.
2.25 The committee thanks the minister for this response. The committee notes the minister's advice that the government is open to amending existing paragraph 86-4(c) and proposed paragraph 86-4(d) so that those provisions apply to only de-identified data, recognising that the benefit of using the new care recipient data for monitoring and research purposes principally lies in pooling care recipient data at the level of a residential care service, or above.
2.26 The committee would welcome the government amending the bill as set out in the minister’s response, as this would appear to address the committee's scrutiny concerns regarding the use and disclosure of personal information in the bill.
2.27 In light of the information provided, the committee makes no further comment on this matter.
[1] Schedule 1, item 3. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii) and (iv).
[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 1-3.
[3] The minister responded to the committee's comments in a letter dated 24 November 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest.
[4] Schedule 1, item 11. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii) and (iv).
[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 3-4.
[6] Schedule 1, item 3, proposed section 29C-8. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).
[7] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 4-5.
[8] Schedule 1, items 7–9. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[9] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 5-6.
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