Public Sector Informant: Lack of agreement mars aged care inquiry report

While the report does an excellent job in again exposing the failings in aged care and their causes, and it makes many sensible suggestions for improvement, it is not an analytical paradise. It is long-winded, repetitious and not short on platitudes. But its most serious weakness lies in the inability of the two commissioners, Mr Tony Pagone and Ms Lynelle Briggs, to agree on major recommendations.

It is not unusual for members of inquiries to reach different conclusions although these are usually at the margins. The aged care royal commissioners, however, vary on fundamentals to the extent that the government has now not one report but one and a half. That's a pity as it may put improvements in aged care at greater risk than if the commissioners had been able to present a unified view. Mr Pagone says that "In the end, the differences between us may add to the strength of the reforms." Maybe, but most likely, maybe not. And herein lies a lesson for future inquiries: they should be conducted by one person so a unity of view is ensured or three or four in the hope that differences might have a better chance of being resolved or restricted.

As it's not possible to roam over the commission's 147 recommendations, the concentration here is on the major divergence between Pagone and Briggs - the central machinery of government arrangements to give effect to the changes they see necessary. Pagone recommends an "independent commission" model; Briggs favours a "government leadership" one.

In essence, Pagone wants an Aged Care Commission with nine members, some with specified and distinct responsibilities, to be responsible for the overall operation of the aged care system. Briggs recommends that this function should be the responsibility of the Department of Health where it would be supervised by an associate secretary who would also be the principal policy adviser to the minister and the secretary of the department. Both agree that independent authorities should set quality and safety standards, prices and inspect and report on the working of the system. And they agree that aged care should be funded by a tax levy, although they don't agree not on its form.

The reasoning by which Pagone and Briggs get to these recommendations is unsatisfying.

Pagone sees the "role of government at the heart of the failures and shortfalls" in aged care. He says there is "little point in ... asking the same department that has overseen the current failings to build and run the new aged care system". His assessment places curious weight on a 1997 cabinet memorandum that he says is "part of the cause for need for" the royal commission. That's a heavy load for a cabinet memorandum to bear, they being one of the most innocuous forms of advice provided to ministers having traditionally contained no recommendations on which to base decisions. So Pagone concludes that "aged care must have an independent champion for high quality and safe care so that decisions are not made by the very people who must compromise between competing government and political priorities."

The Pagone recommendations contain oddities. For example:

Briggs's preference for aged care to be run by the department significantly rests on her opposition to a statutory independent commission which she claims "will only delay...reforms" and cause "destructive instability, confusion and uncertainty". She says that "the last thing the aged care system needs is an arm's length body that can be blamed for service delivery while the minister retains funding and policy powers" and that "ministers should be responsible for deciding on the balance between competing social values, not non-elected technocrats operating behind a corporate veil".

Briggs's opposition to a commission is too rhetorical for its own good. Sure, it would take time for a new statutory authority to be set up, but so will it take time to rearrange the Department of Health and Aged Care as she would have it, especially as she calls for it to be the subject of yet another outsider review. Moreover, short term disruption is not as important as long term functionality. And her comments about blaming an "arm's length body" and "non-elected technocrats" don't warrant extensive commentary.

There are also oddities in aspects of Briggs's recommendations. For example, she wants an associate secretary in the Department of Health to be "the principal policy adviser to the minister" on aged care. Putting aside the fact that associate secretary arrangements are unsatisfactory in organisational terms (just ask most unfortunates who have been one), section 57(1)(a) of the Public Service Act requires the secretary of a department to be the "principal policy adviser to the agency minister."

Such inadequacies in the structural aspects of the royal commission report would seem to be down to its inability to consider them in terms of ordinarily accepted machinery of government principles. If it's any consolation, that's not uncommon. For example, the Home Affairs portfolio was constructed without regard for such principles and it's no surprise that the administrative shambles predicted at its birth have been realised in spades.

What's missing in the Pagone and Briggs analyses is an adequate consideration of the nature of the functions to be performed in aged care and where they should be best placed in relation to government and ministers. Many of these require decisions to be made about the provision of services and funds to individuals and organisations that should be equitable and based on merit and relative needs. As has been made depressingly obvious in recent years, such decisions do not always play to ministers' strengths. Too often they're affected by considerations of political advantage, as has been depressingly obvious with grants for sporting amenities and the location of government agencies, these being tips of an ugly iceberg.

Ministers must, of course, with advice from their departments set government policy and Parliament must pass associated laws for structures and funding. Once that is done, however, who gets what as between individuals and institutions is best decided by authorities with independence from ministers not usually available in departments. This is not a matter of choosing between "competing social values" or "non-elected technocrats operating behind a corporate veil". It's what can best ensure fair and equitable distribution of funding and services consistent with laws and government policy. Ministers don't make decisions about individuals' taxes. That's done by the independent Tax Office. There is a sound case for decisions in aged care to be organised on a similar basis via a fully accountable statutory authority, with separate like authorities being responsible for standards, pricing and evaluation.

While Commissioner Pagone doesn't make his case well his "independent commission" model, though needing considerable adjustment, is closer to the mark than Commissioner Briggs's "government leadership" one. It is unfortunate that the royal commission hasn't been able to agree on these important matters. This risks delay in decisions from a distracted government in which the protection of existing turf may distort the assessment of the merits of competing approaches. Sigh.