By Catia Malaquias
The federal Minister for Aged Care, the Hon Ken Wyatt MP, recently released a report entitled “Review of National Aged Care Quality Regulatory Processes” (October 2017) prepared by Ms Kate Carnell AO and Professor Ron Paterson ONZM.
The Review was initiated by the federal Minister after concerns were expressed with how the federal Australian Aged Care Quality Agency could have found the now disgraced Oaken aged mental health facility compliant with federal accreditation standards given the fundamental problems with the facility uncovered in a review earlier this year by the South Australian Chief Psychiatrist, Dr Aaron Groves.
A key finding of the Chief Psychiatrist’s report was the relevance of the dominant “rotten culture” amongst staff at the Oakden facility that led to the abuse, violence, neglect and poor treatment of vulnerable and disabled residents – in essence to their devaluation as human beings. It was a culture that resisted adapting, grew skilled at shielding itself from external review and only sought compliance with external standards for compliance’s sake on a transient as necessary basis – i.e. with the goal of shielding against further scrutiny, rather than anything to do with improving resident care services. This clandestine mentality was captured perfectly in the insider phrase used amongst nursing staff – “Boss on the floor” – to communicate that an “external person” of some authority was present in the building or on the ward and accordingly it was time to adjust their behaviour to minimise attracting scrutiny.
In considering the Chief Psychiatrist’s report earlier this year here, I made three main comments:
(1) The root cause of the abuse, neglect and poor culture at Oakden lay in the staff’s devaluation of the residents of Oakden. In essence, the poor physical and emotional care of the residents arose from an inherent attitudinal lack of respect amongst staff for the residents and their rights. The insidiousness and causal responsibility of a culture of devaluation of disabled people was also a key finding of federal Senate 2015 report into ‘Violence, Abuse and Neglect against People with Disability in Institutional and Residential Settings”.
(2) The culture of a facility has a greater impact on the quality of services and safety of residents than regulatory rules and standards. A point made by the Chief Psychiatrist in quoting Professor Don Berwick on the safety of patients in clinical settings in England:
“… culture will trump rules, standards and control strategies every single time, and achieving a vastly safer [National Health Service] will depend far more on major cultural change than on a regulatory regime.”
(3) The factors that led to Oakden – a devaluing, ageist and ableist culture, vulnerable residents, poor management and leadership, under-resourcing, inadequate training, ‘challenging customers’, low morale, low wages, poor complaint processes and weak regulatory oversight – are far from specific to Oakden or even to aged care facilities. Rather, it is to be anticipated that the issue of abuse of vulnerable and disabled people in facilities, including non-aged care employment, education and residential facilities in which people with disability (particularly intellectual disability) are segregated and concentrated, is prevalent.
The federal Review Report is refreshing in its openness. It did not accept the submission from some aged care groups that Oakden was unique on the aged care landscape.
“While the situation at Oakden is far from typical, the circumstances that led to it are certainly not unique. Oakden is a sentinel case and highlights areas for improvement in the regulatory system.” [p.50]
As to the reasons for anticipating broader concerns within the aged care system, the federal Review Report states:
“… there are two main reasons why the distinctive nature of Oakden should not be overstated.
First, … there were failures of care for consumers at Oakden that lay entirely within the Commonwealth regulatory system … . They were issues that any service could experience. The Groves report did identify some issues that were related to the regulatory circumstances at Oakden, such as funding adequacy. However, most of the issues were attributable to failures that any service could be vulnerable to.
Second, while Oakden cared for people with particularly complex mental health needs, there are many consumers with complex needs in the aged care system. We know from the Aged Care Funding Instrument, for example, that around half of residential care consumers have symptoms of mental illness. This group overlaps with the approximately half who have dementia. We know that frailty is increasing, and that the number of people in care with dementia (and therefore with severe dementia) is increasing. Oakden is not unique, because the characteristics and needs of its residents were not unique.” [p.39]
However, the response of the federal Review Report to the risk of broader under-identification of non-compliance with aged care accreditation standards was to recommend better co-ordination of regulatory functions, expanded intelligence-gathering (including better and deeper liaison with residents and their families), changes to the focus of the accreditation standards (including a greater focus on actual or ‘on-the-ground’ conduct rather than on the mere documentation of processes), improved compliance monitoring (including through primary reliance upon ‘unannounced’ site visits) and better complaints-handling processes. The focus of the Review Report is very much on identifying and improving “compliance” with the regulatory requirements. In that sense, it promotes the development of organisational and staff cultures focussed on achieving “compliance” with the standards – or ‘cultures of compliance’.
That is, in my view, a more limited and different objective to fostering the development of culture in the aged care system that is cognisant of ageism and ableism and that educates itself to identify and overcome actual and implicit cultural bias towards the devaluation of very vulnerable residents who are sometimes also perceived as ‘challenging’. In my view, that is the proactive degree of respect for dignity and basic human rights that must underlie the culture required if we are, as the Review Report suggested, to meet the “Mum test” (is the service quality good enough for my mum?).
Unlike the Chief Psychiatrist’s report into Oakden which emphasised the role and importance of the culture of the facility to resident outcomes, the Review Report does not make any specific recommendations in this regard. The one area where organisational culture is raised with some emphasis is in relation to the use of restrictive practices in aged care.
“The stark reality is that restrictive practices are often used in human service settings on the most vulnerable and disempowered people. This is explained and justified as protecting the restrained person or others from harm during episodes of ‘challenging behaviours’, such as striking themselves or other people or wandering. However, it may also be being used as a ‘means of coercion, discipline, convenience or retaliation by staff or others providing support, when aged care facilities are understaffed.
The use of antipsychotic drugs as a restrictive practice to control behaviour in residents with dementia may be inappropriate for several reasons. First, there is evidence of their limited effectiveness in treating certain symptoms of dementia. Second, there is at times over-reliance on using antipsychotics as a first line of response, missing other needs of the resident. Overuse of antipsychotic drugs may be the result of a ‘quick-fix’ mentality, reflecting an organisational culture that is not centred on the resident, or lack of training, qualified staff or other resources. There is also evidence that antipsychotic drugs are administered without informed consent in some cases.
Some have argued that, although they should be a last resort, restrictive practices are sometimes necessary to protect other care recipients and staff. However, we believe that the use of restraints – physical or chemical – is not a solution when a person is exhibiting behaviours of concern. The application of restrictive practices usually escalates, rather than calms, a person’s behaviour. According to Alzheimer’s Australia, there should instead be a focus on the ‘environmental or service factors’ that cause problematic behaviour. Instead of using restraints, aged care staff need to be supported and given adequate time to provide responsive and flexible and individualised care.” [pp. 115-125]
The parallels between the adverse use of restrictive practices in education settings for students with disability and ‘challenging behaviours’ and their use in aged care and health care settings are obvious.
The federal Review report has also suggested the use of a graduated “star rating” of aged care facilities in relation to accreditation requirements to overcome providers prioritising compliance with bare minimum requirements and to foster competitive tension between facilities and providers to improve service quality.
Similar to the existing federal aged care accreditation system, our education system also has adopted a “bare minimum” compliance approach to the inclusion of students with disability through the Disability Education Standards 2005 made under the Disability Discrimination Act 1992 (Cth). Those standards also only focus on compliance with “minimum” requirements and lack robust and accessible complaint and enforcement mechanisms.
Accordingly, there is merit in considering a number of the suggestions in the Review Report in the education space, including the use of a graduated rating system or inclusive education index to measure and communicate the degree of achievement of inclusive education standards by particular education facilities and providers.
[Cover photo © Nathan Anderson]