Caring about older persons in regulation

Good regulations for the care of older persons is critical for states where the share of ageing population is increasing quickly because the burden on aged services also exponentially grows. The population ageing process is a transversal issue that cuts across several policy areas and regulatory mechanisms, often requiring implementation several years in advance to address future demand. This howtoregulate article looks at best practices for regulating care for the aged in circumstances where the target group are working less, living longer and needing more.

A. International and supranational law

I. United Nations (UN)

1. The UN Open‐Ended Working group on Ageing for the purpose of strengthening the Human Rights of Older Persons (OEWGA) is investigating the merits of creating a Convention on the Rights of Older Persons (CROP), being persons over 60 years of age. Investigations towards a CROP follows earlier calls for greater attention to the rights of older persons beginning with the first World Assembly on Ageing (1982), followed by the UN Principles for Older Persons (1991) and the Second World Assembly (2002).1 States adopted at the 1982 World Assembly the Vienna International Plan of Action on Ageing, which recommended a variety of initiatives in employment and income security, health, housing, education and social welfare. The 2002 Madrid International Plan on Ageing was adopted at the Second World Assembly and identified areas in which states agreed to:

  • Focus on individual lifelong development, multigenerational relationships, the interrelationship between population ageing and development, and the situation of older persons;
  • Place older people into the general context of international human rights law, establishing the groundwork for older persons to be seen as a protected group; and
  • Review the plan after a 10 year period, in which states and non-government organisations such as the UN Population Fund were tasked with implementation.

2. The OEWGA will hold its 11th session in April 2020, where it will consider the right to work and access to the labor market, and access to justice, as well as seek inputs on the rights of older people to:

  • education, training and life-long learning and capacity building; and
  • social protection and social security (including social protection floors).

3. The reporting mechanism of the UN Sustainable Development Goals (SDGs) encourages member states to consider ageing in their implementation of the SDGs. The 2016-2019 SDG Voluntary National Reviews highlighted the challenge for ensuring decent lives for older people in an ageing society.

II. World Health Organisation (WHO)

4. The WHO Guidelines on integrated care for older people, provides guidance on preventing, slowing or reversing the decline of the intrinsic capabilities of older individuals and maximising their functional abilities. The WHO has 5 areas of work identified in its Global strategy and action plan on ageing and health 2016-2020:

  1. Commit to action
  2. Age-friendly environments
  3. Health systems that meet the needs of older people
  4. Long-term care systems
  5. Data and research

The WHO also curates case studies of practices around the world that are age-friendly.

III. World Bank

5. The World Bank has set two goals for the world to achieve by 2030: End extreme poverty within a generation and boost shared prosperity. It achieves this by providing financial and technical assistance to developing countries in the form of low-interest loans, zero to low-interest credits, grants, policy advice, research and analysis and technical assistance. The World Bank is working more on comprehensive solutions to the deep and systemic socioeconomic challenges of ageing populations e.g. increased demand for new types of products and services, such as pension and insurance products, and the need for a deeper understanding of the implications of ageing for growth, equity and poverty reduction. Examples of its work on ageing is useful for regulators:

  • Golden Aging: Prospects for Healthy, Active and Prosperous Aging in Europe and Central Asia – In Europe and Central Asia, bold adaptive action is needed across many policy areas to support active, healthy, and productive ageing. This report looks at how to do this from reforming the intergenerational transfer and pension systems, to shifting health systems toward preventive care, primary care, and more diagnostics, reforming educational systems to bolster the cognitive skills needed for productive employment along longer working lives, and reforming labor market institutions to allow women to reconcile family and career goals and older people to work more flexible hours.
  • Live Long and Prosper: Aging in East Asia and Pacific – discusses the societal and public policy challenges and reform options for the East Asia and Pacific countries as they address ageing
  • World Bank Report Offers Options for Elderly Care in China – using the case study of China, the report describes the current landscape and challenges for aged care in China. It reviews international experiences in long-term care provision, financing and quality assurance and assesses their relevance to China.

IV. Organisation for Economic Co-operation and Development (OECD)

6. The OECD Health Division has an ongoing programme of work to support countries in developing long-term care systems that can meet the needs of their populations now and in the future.2 In addition to research and collection fo data about long-term care, the programme of work involves a secretariat function that collects questionnaires from OECD countries to track spending and quality. In its report, A Good Life in Old Age?, the OECD found that quality in long-term care lags well behind the health sector. The OECD also published a report on dementia, which examined the challenges, policy responses and evidence of what works in tackling dementia – both in terms of the provision of health and long-term care and research to find a cure. The OECD tracks data on long-term care uses and resources in its annual health statistics on:

  • Long-term care workers in the formal sector;
  • Beds in nursing and residential care facilities; and
  • Long-term care recipients.

V. Organization of American States (OAS)

7. Member states of OAS signed in June 2015 the Inter-American Convention on the Protection of the Human Rights of Older Person, which provides that:

Article 1 Purpose and scope

The purpose of this Convention is to promote, protect and ensure the recognition and the full enjoyment and exercise, on an equal basis, of all human rights and fundamental freedoms of older persons, in order to contribute to their full inclusion, integration, and participation in society.

The Inter-American Convention contains the following key messages:

  • People’s sexual rights are maintained as we get older.
  • The convention fosters a positive attitude and a dignified, respectful, and considerate treatment towards people over 60 years of age.
  • As we get older we must continue to enjoy a full, independent and autonomous life, enjoying good health, safety, and inclusion, and active participation in society.
  • The convention promotes the recognition of older people’s experience, wisdom, productivity and contribution to the development of society. and
  • The convention promotes active ageing for the entire population as a way to guarantee the rights of future older generations, that is, for the entire population that will reach older age in the short, medium and long term.

VI. The African Union (AU)

8. The AU’s Commission on Human and Peoples’ Rights (ACHPR) adopted resolution 118 to establish and appoint a Focal Point on the rights of older persons in Africa at its 42nd Ordinary Session held from 15-28 November 2007, in Brazzaville, Republic of Congo.3 The African Charter on Human and Peoples’ Rights provides that “the aged” have the right to special measures of protection [Article 18(4)]and resolution 118 establishes the formal mechanism to make this happen. The mandate of the Focal Point is to draft a Protocol to the African Charter on the Rights of Older Persons in Africa. The Protocol was adopted by the 26th Ordinary Session of the Assembly, held in Addis Ababa, Ethiopia on 31 January 2016.

VII. Council of Europe (CoE)

9. The Committee of Ministers adopted Recommendation CM/Rec 2(2014) to Member States on the promotion of human rights of older persons. The aim of the Recommendation is to raise awareness of public authorities and civil society to the human rights and freedoms of older persons, and create oversight system by the Committee of Ministers on implementation. The Recommendation covers topics such as:

  • non-discrimination (Article II.);
  • autonomy and participation (Article III.);
  • protection from violence and abuse (Article IV.);
  • social protection and employment (Article V.);
  • care (Article VI.): covering (A.) general principles, (B.) consent to medical care, (C.) residential and institutional care, and (D.) palliative care; and
  • administration of justice (Article VI.).

Under each of the topics in the Recommendation lists the good practices of some of the Member States. The good practices are updated annually, the most recent update on the COE site is 2018. The CoE page on Promotion of human rights of older persons contains information of all the activities involved in protecting older persons.

VIII. European Union (EU)

10. The EU performs a monitoring, research, policy coordination and information sharing function for EU Member States noting the growing challenge of an ageing population to the sustainability of public finances and the quality of aged care. The following EU mechanisms are focussed on the challenges posed by an ageing population:

  • The EU Economic Policy Committee convenes the Working Group on Ageing Populations and Sustainability (AWG) which provides quantitative assessment of the long-term sustainability of public finances and economic consequences of ageing population of the EU Member States to inform policy. The main tasks of the AWG are to carry out the common age-related budgetary projections, contribute to the development of the assessment of long-term sustainability of public finances, and discussions on other important issues in analysing long-term fiscal sustainability.
  • The EU Social Policy Committee is focussed on policy that meets the EU social policy goals of social protection and social inclusion, pensions, healthcare and long-term care.
  • The EU agency of Employment, Social Affairs and Inclusion promotes active ageing, pension policy and research, the Ageing Report.

B. National laws

1. The objective for regulating aged care, be it in the home or in an institution, is to ensure quality in all settings that the care is provided. Another objective may be to create measures and incentives aimed at keeping aged populations healthy and at home as long as possible before requiring an aged care institution. The costs of aged care are rising in OECD countries and the tax revenue base that funds such care is reducing. So it is important that regulations are optimised to ensure that every dollar spent, is spent on quality care.

I. Defining the aged

2. In most jurisdictions measuring the share of aged population starts from the age of retirement or pension age. In the EU the retirement age is around 65 years, with some Member States moving to 67 and 68 over the coming years.4Finland, Cyprus, Denmark, Estonia, Greece, Italy, the Netherlands, Portugal and Slovakia link retirement age to life expectancy.5 Italy reformed its retirement age through Decree Law 4/2019 (28 January 2019), which introduces a pilot system for 3 years called “Quota 100 pension”. Under “Quota 100 pension” it is possible to retire before reaching both the legislated pensionable age (currently 67) and the contributory period for early retirement (42 years/10 months for males, 41 years/10 months for females), subject to fulfilment of a combined contribution (38 years minimum) and age (62 years minimum) requirement (38+62=100).6 The objective of this Italian legislative change was to tackle old-age poverty and ease access to retirement. Italy’s legislative change to the retirement age is particularly interesting because it has the second largest share of population over 65 years at 23% (Japan is the first with 28%)7, which will likely see an increase in the number of people retiring and possibly requiring aged services.

II. Aged care services

(a) Latvia (population 1.92 million, share of ageing 20% as at 2018)

3. Latvia’s Law on Social Services and Social Assistance (“social services law”) is a good example of a simple regulation for state provided social services. The purpose of the social services law is to:

  • establish the principles for providing and receiving social work, social care, social rehabilitation, vocational rehabilitation and social assistance;
  • the range of persons to receive such services and assistance;
  • the principles for payment; and
  • the financing of such services and assistance.8

The purpose of the provision of social care services “is to ensure that the quality of life does not deteriorate for a person, who due to old age or functional disorders, cannot ensure such through his or her own effort”9. Persons of “pensionable age” (currently 63.25 years, gradually increasing to 65 in 202510) are eligible to receive such services and local government are required to make such services available based on the number of people in the area. For example Section 10.(1) provides that the local government shall have at least one social work specialist for every thousand inhabitants in the area to ensure that a professional assessment of needs is carried out so that sufficient, quality services are provided. Section 11 outlines the tasks of the local government in providing social services as well as the duties of the state (Section 13). Sections 9 and 13 concern funding of the services. Section 23 concerns home care, including support for family member carers such as psychological assistance, advice and training and helping out materially if required.

4. The Cabinet Ministers Regulations No. 338, 13 June 2017, outline the requirements for those that deliver the social service be they private, cooperative society, association, foundation, religious organisation state or local government institution or any other legal entity. The items regulated in Regulation 338 include:

  • Education requirements for employees of the social service provider;
  • Continuous training requirements for employees of the social service provider, specifying number of academic hours per year for different responsibilities eg. head of the social service provider not less than 24 academic hours per year, social rehabilitation employee not less than 16 hours and a caregiver not less than 8 hours (Section 9.1);
  • the premises and environment of the social service provider;
  • service levels;
  • requirement of municipal social work service providers, who are responsible for organising access to social services, monitoring the quality and administration for inhabitants of their area eg. should be a client file for each person accessing a service and 6 months follow-up after commencement (Section 14);
  • requirement for providers of long-term social care;
  • respite care service requirements (Section 76);
  • adult day care service requirements (Section 76); and
  • the services offered by home care providers.

5. The Latvian regulation of social assistance requires local government to foresee the need for social assistance by establishing a requirement for social assistance professionals per 1000 inhabitants. Those that cannot pay, based on an assessment of their tax filing, do not and those that can afford, pay according to their ability to do so (Sections 5 and 8). Interestingly, UK policy think tank, Institute for Public Policy Research, released a paper, Social Care Free at the Point of Need: The case for free personal care, which states inter alia:

Introducing free social care for everyone over 65 would save the NHS in England £4.5 billion a year by enabling more elderly people to receive care in the community…

Millions of people should be spared the risk of high costs in old age by providing social care free at the point of need, just like health care…

Acknowledging the extra investment needed to provide free social care, the report notes that spending on adult social care for the over 65s would rise from £17bn a year today to £36bn in 2030, before NHS and other savings are factored in. However, £11 billion of that increase would arise even within the existing system because of the growing elderly population, and there would be benefits to the wider economy, including jobs for the estimated 70,000 new full-time workers needed to meet current demand.

Latvia’s regulation for social service assistance to all of pensionable age may well be where other jurisdictions may need to go to ensure the wellbeing of older persons in the face of growing demand.

(b) Japan (population 126.8 million 2017, share of ageing 28% as at 2018)

6. Japan’s regulation of aged care is outlined in two legislative acts: the Long-term Care Insurance Act (LTCI) and the Act on Social Welfare for the Elderly. The aged care regulation of Japan is complex, reflecting the number of elderly that use the system as Japan has the largest share of aged population in the world at 28%. Based on OECD data concerning long-term care, Japan is a jurisdiction that employs many best practices in regulating aged care. This report by Japan’s National Institute of Population and Social Security Research provides a detailed overview of Japan’s aged care regulations and this OECD paper provides some basic facts about Japan’s aged care system.

7. Articles 7-8 contains quite a long list of definitions and outlines:

  • distinctions between various types of care, such as Article 7 (1) Condition of Need for Long-Term Care (care on a continual and steady basis) and Article 7 (2) Needed Support Condition (care on a continual and steady basis during a period to prevent the decline of a condition);
  • persons requiring long-term care being one that has one of the two conditions above in Article 7 (1) and (2) and is 65 or older, or persons 40 to less than the age of 65 with a specified disease outlined in Cabinet Order;
  • Article 8 (1)-(5) concerns all care provided in the home, many services are defined such as nursing services, rehabilitation, bathing among others; and
  • The remaining definitions (over 20) under Article 8 concern the various types of services and specialities.

8. Persons must be certified as needing the care (“insured persons”) outlined in the LTCI (Article 27), which is applied for at the municipality, and involves a computerised screening process followed by scrutiny process made by a municipality committee.11 The certified need is classified as support level 1 and 2, care level 1, 2, 3, 4 and 5, according to the severity of the condition. The important characteristic of the LTCI is that once certified, an insured person has a choice of services. According to the support or care level, a care plan is developed by a care manager to allocate appropriate services. Japan’s certification process and case management system is a regulatory feature that stands out compared to other jurisdictions, which encourages service integration. Care managers have the responsibility for creating care plans based on service options available at home care, short stay and long stay at a facility or group home, with needed equipment rented and purchased. Care managers monitor conditions, from assessment to referral and end of care, which covers both long-term care and health care.

9. Other key features of Japan’s regulation of aged care is its focus on home-based care (number of older persons receiving care at home is high compared to OECD average)12 and its focus on the education and training requirements of all types aged care workers to ensure quality of care. For example aged care workers undergo a certification process and a minimum of 130 hours of training are required to become an entry level care worker. Home care workers must also be accredited.

III. Improving mental and physical health of the aged

(a) Intergenerational care

10. Japan was the first jurisdiction in 1976 to open an intergenerational care facility where aged care and child care were co-located. In 2018 Japan revised its LTCI, Social Welfare Act, Act on Comprehensive Support for Persons with Disabilities and Child Welfare Act to oblige the municipalities to co-locate services aimed at the populations that these acts concerned e.g. the aged, the disabled and children.13 The Japanese model of intergenerational care address the physical and mental health challenges ageing populations face. Studies into the physical and mental health benefits of intergenerational activities has recorded measurable improvements in reducing depression and feelings of isolation, walking speed and clarity of thinking.14 The children also benefitted from activities with older persons.15

11. The take up of co-locating aged care and child care has been led by private service providers. In researching this article there appear to be no specific regulations for the requirements such colocation of services should adhere. Indeed, it seems that private operators simply comply with the requirements of both aged care and child care regulations (see the example of a not-for-profit provider’s journey in colocating aged and child care16). To the extent that compliance with two regulatory regimes for care may act as a barrier to more operators co-locating aged and child care services, the regulatory bodies responsible for overseeing both regimes should consider where economies of scale could occur.

12. In Germany (population 82.79 million and share of ageing population 21% as at 2018) the Mehrgenerationenhäuser programme funded federally supports “multigeneration houses” that are kindergartens, a social centre for the elderly and a place where young families can drop in for a coffee and advice. Older persons volunteer to read books to children, there is a “rent-a-granny” service to relieve exhausted parents, teenagers show older persons how to use computers and mobile phones, and games and singing sessions for dementia patients where children join in.17 These centres may fund up to 50% of their annual budgets on salaries as a measure to encourage volunteering. Austria also runs a similar programme.

(b) Volunteering

13. Incentives that encourage activities in the community for the aged also help to increase personal connections and physical activity that is important for keeping healthy. In the US (327.2 million and population and share of ageing 16%) there is the Retired and Senior Volunteer Program (RSVP) that provides grants to qualified organisations for the dual purpose of engaging persons 55 and older in volunteer service to meet critical community needs and to provide a high quality experience that will enrich the lives of volunteers.

(c) Dementia

14. Dementia has become an issue among ageing populations requiring specific regulatory intervention, noting that someone develops dementia every 3 seconds worldwide18. The OECD convened a World Dementia Council Summit in December 2018 to focus attention on the 19 million people living with dementia in OECD countries, producing the following report Defeating Dementia: The road to 2025. As there is no cure for dementia at this stage, the number of dementia sufferers will grow and, being an acute condition requiring specialist care as the condition worsens, countries are under increasing pressure to provide adequate care.

15. Australia updated in November 2019 its regulations on use of physical and chemical restraints in aged care (Quality of Care Principles 2014 made under 96-1 of the Aged Care Act 1997), following several issues concerning restrain use on dementia sufferers19. Part 4A of the Quality of Care Principles provide that physical (Section 15F) or chemical restraints(Section 15G) are to be used only as a last resort. The steps leading up to “last resort” for physical restraint [Section 15F (1)] include:

  • an approved health practitioner who has day-to-day knowledge of the consumer has assessed that the consumer poses a risk of harm to himself/herself or any other person and must document this assessment;

  • alternatives to restraint have been used to the extent possible;

  • such alternatives to restraint have been considered and it has been documented; and

  • the informed consent of the consumer or the consumer’s representative to the use of restraint, unless the use of the restrain is necessary in an emergency.

In the case of chemical restraint a medical practitioner or nurse practitioner has assessed the consumer as requiring the restraint and this assessment has been documented, and the consumer’s representative is informed before the restrain tis used, if it is practicable to do so [Section 15G (1)]. Some criticism by aged care providers noted that such regulatory amendments to use of restraints may not reduce the use of restraints unless the shortage of aged care workers is addressed or establish a minimum standard for aged care worker ratio to older person.20

16. The 2010 US Affordable Care Act requires specific training in caring for long-term care persons in a residential facility with dementia and in preventing abuse.21

17. Japan’s “New Orange Plan” has the objective of realising a society where persons with dementia can live with dignity in a pleasant and familiar environment as how they hope to be as long as possible. The strategy accelerates dementia measures through early support in delaying the acute effects of dementia through training programmes coordinated by a Dementia Coordinator, research for prevention and cure of dementia, and mobilising dementia supporters (e.g. police, schools receive training) to create a watch system in the community.22

IV. Aged care workforce

18. Despite the increase in demand for aged care there is a shortage of aged care workers in many countries. For example Japan estimates it needs an additional 380 thousand care workers by 2025, when postwar babies will be 75 or older. The other issue in the aged care workforce is that workers are some of the lowest paid in many countries, salaries are not commensurate with the important function aged care workers provide to society.

19. Although Japan’s carer workforce is one of the better paid professions in the OECD, Japan did introduce a formula for calculating increases to salaries on a regular basis.23 On the supply side, Japan has sought to encourage skilled workers from Indonesia, Philippines and Vietnam through economic partnership agreements where nurse and care worker candidates are invited to Japan to obtain Japanese professional certification. Japan amended its Immigration Control and Refugee Recognition Act to include the status of residence of certified care worker (kaigo).24 The professional certification is managed under Japan’s Technical Intern Training Programme, which allows foreign students to train at a Japanese care facility for two years and pass a national board examination to live and work in Japan indefinitely under the kaigo residence status.

V. Older person abuse

20. Singapore (5.612 million population at 2017 and 11% ageing share 2018) strengthened its older person abuse legislation by enacting the Vulnerable Adults Act (VAA), which came into force in December 2018. The VAA empowers the Ministry of Social and Family Development to protect vulnerable adults like seniors and persons with disability who are at risk of being abused or neglected. Vulnerable adults are defined as any individual aged 18 years and above (including the older persons), with mental or physical disabilities, and who is unable to protect himself/herself from abuse, neglect, or self-neglect as a result of these disabilities (Section 2). The VAA outlines a simple definition of abuse, neglect, or self-neglect, under Section 2 for better public understanding of where the State can then intervene as a last resort to protect the vulnerable adult:

  • ‘Abuse’ includes physical, emotional or psychological abuse. It is also defined as controlling or dominating conduct or behaviour which causes the individual to fear for his or her safety or well-being, or conduct or behaviour that unreasonably deprives or threatens to unreasonably deprive the vulnerable adult’s freedom of movement or well-being.
  • ‘Neglect’ means the lack of provision of essential care – such as food, clothing, medical aid and lodging – to an individual that causes personal injury, physical pain or injury to physical/mental health.
  • ‘Self-neglect’ occurs where an individual fails to perform essential tasks of daily living (including but not limited to eating, dressing and seeking medical aid) to care for himself/herself. This results in the individual living in grossly unsanitary or hazardous conditions; suffering from malnutrition or dehydration; or suffering from an untreated physical or mental illness, or injury.

21. The Ministry of Social and Family Development established an Adult Protective Service to investigate cases of abuse which fall under the VAA and to arrange suitable services for the vulnerable person. The VAA gives powers to public officials to enter the home of a suspected victim (Section 8) and relocate the person to a safe place if required (Section 10). Where a person fails, without reasonable excuse, to comply with a direction made under the VAA or obstructs another person from complying with a direction made under the VAA, shall be guilty of an offence and liable on conviction to a fine not exceeding Sing$5,000 or to imprisonment for a term not exceeding 12 months or to both [Section 6 (8)].

VI. Information

22. Good aged care regulations and information about accessing care should be easy to find. Noting that aged populations are a diverse group in terms of skills level, technology access and mobility challenges, information about aged care should be developed with this in mind. Some examples found of good information sources and initiatives include:

  • Singapore has a great website about all issues and services of interest to the elderly and this website also documents all the community advertisements and initiatives that occur to make the information known to as many as possible: https://www.moh.gov.sg/ifeelyoungsg;
  • Australia’s Royal Commission into aged care website and its processes is a good example where legal language has been translated into plain english to enable the elderly to participate in the Commission’s process:https://agedcare.royalcommission.gov.au/Pages/default.aspx;
  • Japan’s ikoino saron, is a social participation salon where older people can meet and interact with others in enjoyable, relaxing and sometimes educational social activities, such as arts, crafts, music, health education seminars, physical and brain exercises: https://www.who.int/bulletin/volumes/97/8/18-223057/en/

C. What we missed

1. A Royal Commission into Aged Care was opened by Australia in October 2018, an interim report was delivered in October 2019 and a final report is expected in November 2020. Such a thorough investigation will lead to some useful regulatory insights and recommendations. The interim report of the Commission found that the “aged care system fails to meet the needs of its older, vulnerable, citizens…[not delivering] uniformly safe and quality care, is unkind and uncaring towards older people, and in too many instances, it neglects them”. When designing regulations for long-term care for the aged it is useful to consider what the interim report said about the systemic problems identified in an aged care system that:

  • is designed around transactions, not relationships or care,
  • minimises the voices of people receiving care and their loved ones,
  • is hard to navigate and does not provide information people need to make informed choices about their care,
  • relies on a regulatory model that does not provide transparency or an incentive to improve, and
  • has a workforce that is under pressure and under-appreciated and that lacks key skills.

This part of the howtoregulate article will look at some regulatory techniques to address the problems identified by the Australian Royal Commission, that have also been identified by many of the global reports listed in Part A of this article.

I. Oversight for relationships of care

2. In researching various national regulations on aged care many terms were used to describe oler persons, depending on how the regulation is structured. For example Australia uses consumers of aged care, Japan insured persons or Latvia persons of pensionable age. To the extent that the language used in regulation may exacerbate older persons being treated as transactions, using an appropriate term may help or a simpler term e.g. instead of “consumers”, a person in receipt of care in a aged care facility could be defined as resident.

3. As stated from the outset the population ageing process is a transversal issue that cuts across several policy areas and regulatory mechanisms, as the regulatory system grows to cover ever more issues, so too can fragmentation grow. Fragmentation was identified in Australia as a problem in their regulatory system and it was proposed the establishment of an Aged Care Quality and Safety Commission with broad powers to investigate. Other jurisdictions have an Ombudsman to cover aged care (UK has a Social Care Ombudsman, Canada has the Patient Ombudsman, Portugal has the Provedor de Justiça).

II. Transparency

4. Several regulatory measures could encourage aged populations to be better informed about their care options including:

  • Requiring providers to publish information on certain matters that are relevant to care and quality of aged care;
  • Where charters of rights exist do aged populations or residents of aged facilities know about them and how to make a complaints;
  • Is feedback and consultation with persons of the aged care facility part of the reporting process of aged care quality report; and
  • establish whistle blowing mechanisms: For the best practices for regulating whistleblowers see the howtoregulate article “Whistleblowers: protection, incentives and reporting channels as a safeguard to the public interest.

III. Effective accreditation and compliance

5. Most countries have some kind of accreditation or certification process for both public and private providers of aged care facilities. The Handbook: How to Regulate? has useful information for regulators to check that their accreditation processes are as good as they could be, under Section 7.8. To ensure quality, regulations could include the following requirements:

IV. Workforce pressures

6. Japan has done a lot of work to improve its regulations around pressure in the aged care workforce by increasing salaries and supply of workers but even still exit interviews for aged care workers still identified the problem of working conditions and long hours away from family.25 There is no regulatory solution where one size fits all but certainly regulators should look at what the barriers are, what specific conditions are preventing people from entering the aged care workforce and staying. Reference the long hours away from family, Japan offers incentives such as child care at the facility where the carer works. Can the long hours be structured differently, can the repetitive work be managed differently or spread among different people.

V. Using technological systems for accreditation, certification and compliance

7. Many steps in the accreditation and workforce certification process could be automated. For example a central database could receive inputs from aged care providers, aged care training institutions, to help manage the quality of care by ensuring that those providing the care have met the educational requirements (verified by the institution that awarded the competency), conduct the ongoing continuous training requirements (verified by completion certificate of online training or institution certificate of attendance on a course), the system could include anonymous 360 degree feedback from the recipients of aged care or where this is not possible the feedback from their family. Such a database could better inform and target unannounced inspections. The Royal Commission in Australia found that the use of scheduled inspections was not effective in ensuring regulatory compliance.

This article was written by Valerie Thomas, on behalf of the Regulatory Institute, Brussels and Lisbon.

Further Links

Australia Review into Aged Care 2017: https://www.health.gov.au/resources/publications/legislated-review-of-aged-care-2017-report

Brazil policy law for the aged: http://www.scielo.br/scielo.php?pid=S0080-62342012000600029&script=sci_arttext&tlng=en

EU Home Based care: https://globalcoalitiononaging.com/wp-content/uploads/2018/06/RHBC_Report_DIGITAL.pdf

EU the aged marketplace: file:///Users/Admin/Downloads/47%20-%20Silver%20Economy%20-%20Independent%20living.pdf

Japan Ministry of Health Labour and Welfare:

Singapore: https://www.moh.gov.sg/ifeelyoungsg

Defining aged: https://www.prb.org/which-country-has-the-oldest-population/

1  Wikipedia entry for the UN Convention on the Rights of Older Persons https://en.wikipedia.org/wiki/Convention_on_the_Rights_of_Older_Persons.

4  Finnish Centre for Pensions, “Retirement ages for different countries”, https://www.etk.fi/en/the-pension-system/international-comparison/retirement-ages/.

5  Ibid.

6  Jessoula, M. and Raitano, M, “New Path for Italian Pensions”, ESPN Flash Report 2019/11, https://ec.europa.eu/social/BlobServlet?docId=20757&langId=en.

8  Section 2. Purposes of the Law of Chapter 1 of the Latvian Law on Social Services and Social Assistance, https://likumi.lv/ta/en/en/id/68488.

9  Ibid. Section 18.

11  Hayashi, R., Long-term Care for Older Persons in Japan, National Institute of Population and Social Security Research in Tokyo, p. 21, https://www.unescap.org/sites/default/files/SDD Working Paper Ageing Long Term Care Japan v1-3 FINAL.pdf.

12  Japan entry in the OECD Report A Good Life in Old Age? Monitoring and Improving Quality in Long-term Care, phttps://www.oecd.org/els/health-systems/Japan-OECD-EC-Good-Time-in-Old-Age.pdf.

13  Slide 1 of PowerPoint from Japan’s Ministry of Health, Labour and Welfare on the Revisions to the Long-term Care Insurance System of Japan to strengthen community-based https://www.mhlw.go.jp/english/policy/care-welfare/care-welfare-elderly/dl/ltcis_2017_e.pdf.

14  McGuire, A., “Toddlers and Seniors Together: The Benefits of Intergenerational Care” Institute of Family Studies,https://ifstudies.org/blog/toddlers-and-seniors-together-the-benefits-of-intergenerational-care.

15  Ibid.

16  Honeywell page 25

17 Oltermann, P., “Germany’s ‘multigeneration houses’ could solve two problems for Britain”, The Guardian, 2 May 2014, https://www.theguardian.com/world/2014/may/02/germany-multigeneration-house-solve-problems-britain.

19  ABC news online, “New regulation to prevent excessive use of physical and chemical restraints in aged care”, 17 Jan 2019,https://www.abc.net.au/news/2019-01-17/new-regulations-against-chemical-physical-restraint-in-aged-care/10724038.

20  Ibid.

21  US Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010), Section 5305 Geriatric Education and Traininghttps://www.congress.gov/111/plaws/publ148/PLAW-111publ148.pdf.

22  Slides 20-23 of PowerPoint from Japan’s Ministry of Health, Labour and Welfare on Long-term Care Insurance System of Japanhttps://www.mhlw.go.jp/english/policy/care-welfare/care-welfare-elderly/dl/ltcisj_e.pdf

23  Hayashi, R., Long-term Care for Older Persons in Japan, National Institute of Population and Social Security Research in Tokyo, p. 23, https://www.unescap.org/sites/default/files/SDD Working Paper Ageing Long Term Care Japan v1-3 FINAL.pdf.

24  Yũko, Hirano, Foreign Care Workers in Japan: A Policy Without a Vision, 13 February 2017, https://www.nippon.com/en/currents/d00288/foreign-care-workers-in-japan-a-policy-without-a-vision.html.

25 Ibid.

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