"There is still a lot of work to be done" on the new Aged Care Act, says former Head of the Department of Health, Stephen Duckett.

Though approving of the draft's focus on rights – "the Act accepts that individual’s choices should be emphasised, recognised, and accepted" - Stephen points to a "get out of jail free card" in Section 21 of the draft: "Nothing in this (aged care rights division of the new Act) creates rights or duties that are enforceable by proceedings in a court or tribunal."

The draft, which was released on 14 December 2023, contains a "Thatcherian" assumption the market will deliver services needed, Duckett said in the Pearls and Irritations piece.

This is evident in the Act's section on 'access', Stephen says, which says an individual has a right to an assessment and palliative care, but no assurance of services in between.

Section 20 (2) states:

An individual has a right to equitable access to:
(a) have the individual’s need for funded aged care services assessed, or reassessed, in a manner which is culturally safe, culturally appropriate, trauma-aware and healing-informed; and accessible and suitable for individuals living with dementia or other cognitive impairment; and
(b) palliative care and end-of-life care when required.

Duckett does support the draft's definition of quality care. "The Act defines quality care in a good way and incorporates a long list of individual rights for participants in the aged care system. These are much needed and welcome advances."

But the new Act also "smacks of ‘rights washing’", according to Stephen, meaning "rhetoric is simply there to placate consumers and advocates, allowing providers to continue on their way unimpeded, and government to eschew any role in creating and steering a consumer-focused service system."

With the new Act scheduled to be in effect from 1 July 2024 and consultation only until mid-February, there is still a lot of work to be done – and quickly.