What are legal and regulatory frameworks?
Legal and regulatory frameworks for rights refer to the systems of laws, regulations, funding models coupled with the policy frameworks and system-wide conditions that impact the provision of rights-based care. In Australia, these include the Aged Care Act, Aged Care Quality Standards and the Code of Conduct for Aged Care. The Aged Care Quality and Safety Commission is tasked with upholding the Act and protecting the rights of older people in aged care. [1]
How are legal and regulatory frameworks barriers to rights-based care?
Legal and regulatory frameworks can sometimes get in the way of effective rights-based care. These barriers include:
- ineffective regulatory oversight
- inaccessible complaints systems
- weak, fragmented legal frameworks that lack enforceability
- insufficient safeguards against rights violations, including restrictive practices and restraint. [2-6]
When laws and standards acknowledge rights symbolically but lack enforcement mechanisms or clear operational guidance for providers to follow, rights-based care may not be implemented well. This situation can result in human rights violations, reduced self-determination and increased discrimination. [3, 7, 8]
If guidance is unclear, organisations may prioritise compliance, risk avoidance and safety over autonomy and choice. This culture of paternalistic care is also a barrier to rights-based care. [2, 9-11]
Weak, inconsistent legal and regulatory frameworks can ultimately reduce autonomy and choice, most acutely among marginalised users and their families. [10, 12] They may experience restrictive practices, inability to express their preferences, prejudice and discrimination or difficulty accessing information through portals such as My Aged Care. [2, 10, 12]
How are legal and regulatory frameworks enablers of rights-based care?
Legal and regulatory frameworks enable rights-based care by embedding human rights standards in governance. These standards support participation, organisational accountability and empowerment. [2] Enablers include legislation containing enforceable rights, clear standards, independent regulation and monitoring systems that improve service quality and protect autonomy, dignity and safety. [3, 4]
Systems that promote the robust application of international human rights standards include policies and explicit guidance for implementation. Recommendations for further strengthening rights-based care through legislation and policy include the development of charters, bills of rights for older persons and impact assessments of rights-based care in policy and budgeting. [13]
By embedding enforceable rights in legislation, strengthening remedies and complaint mechanisms, proactive monitoring of rights-related indicators, and clarification of provider duties, rights-based approaches become embedded across the system. [3]
A rights‑based culture of care is supported through the explicit recognition of autonomy, dignity, privacy and safety as desired outcomes. This is reinforced through regulation, minimum standards, facility or organisation inspections, grievance systems and safeguarding policies. [4] Other system-level enablers for rights-based care include:
- Assisted decision‑making legislation supporting dignity, autonomy, and supported decision‑making. [14]
- Guardianship reform supporting more participatory decision‑making. [15]
- Recognition of dignity of risk within legislation, standards and codes of conduct. [9]
- Strong legislative frameworks requiring rights-based practice supported by system-wide guidance for the sector. [16]
What can be done?
Embed human rights in aged care
Policy makers:
- Design comprehensive aged care legislation that embeds human rights.
- Provide clear system-wide guidance on implementation.
Organisations:
- Ensure that human rights are explicit in organisational policies.
The evidence:
- By embedding enforceable rights in legislation alongside improved complaint mechanisms, preventive monitoring and clarification of provider duties, rights-based care becomes embedded in the system. [3]
- Embedded human rights are a tool to ensure that older people can continue to enjoy a fulfilling life unrestricted by ageism. [13]
- Embedding human rights into legislation and organisational policy ensures explicit recognition of autonomy, dignity, privacy and safety through regulation, minimum standards, facility or organisation inspections, grievance systems and safeguarding policies. [4]
Improve regulatory culture
Policy makers:
- Build accountability for rights-based outcomes into regulatory frameworks that are based on quality of life measures.
- Recognise complexities such as dignity of risk in legislation, standards, and codes of conduct and provide relevant training, guidance and tools to support.
Organisations:
- Build human rights goals into organisational policies.
- Provide training on complex rights-based concepts, highlighting how they work in practice.
The evidence:
- Embedding enforceable human rights in aged care legislation ensures residents are protected under law. [3]
- Providing training and capacity building for regulatory staff would help to improve assessment and foster a culture of continuous improvement. [10]
- Supporting increased capacity of State and Territory health department staff to assist facilities implement the first Aged Care Quality Standards. [10]
- It is important for organisations to commit to rights-based care. This commitment is demonstrated though regular policy review and staff education to ensure policies and practices support rights-based care. This commitment can be monitored though self-assessment. [8]
Want to learn more?
ARIIA provides a range of information concerning legal and regulatory frameworks including:
- Legal and policy frameworks for rights-based care
- Guardianship and oversight reform
- Leadership and management strategies
- Person-centred interventions supporting autonomy and choice
Other resources exploring how legal and regulatory frameworks support rights-based care include:
- This presentation by Professor Rosalind Croucher focuses on the Commission’s proposed model for a Human Rights Act in Australia and how it may support the rights of older people.
- This pamphlet from the European Network of National Human Rights Institutions explores “The Human Rights of Older Persons in Long-term Care in Europe.”
- This book chapter in A Human Rights-Based Approach to Elder Law provides some insights into legal aspects of aged care.
ARIIA’s Workforce Capability Development Programs support and inform aged care professionals at all levels.