I decided to press the issue of probity
harder to see if the regulations actually specified it. The usual
response if it does is to send a copy or quote from a section.
27 April 1999
Certification and Approved Services
Residential Care Program Management Branch
Aged and Community Care Division
Department of Health and Aged Care
GPO Box 9848
CANBERRA ACT 2600
Dear Mr xxxxxx,
Approved providers for aged care
Thank you for acknowledging my correspondence so promptly and also for responding to the questions of probity I raised with Mr Learmonth. I appreciate that you and your department are "very concerned" that only suitable persons are approved.
With all due respect I do not believe that "concern" is any substitute for clearly specified probity requirements in the regulations - the sort which exist in Victoria. Without legally binding probity requirements corporations applying for licences or whose licenses are removed can and will successfully challenge the regulations in court. US corporate chains have in the past threatened our regulators. Because of the potential legal costs and the legal advice that such a challenge will succeed regulators will not act to protect citizens. This is well illustrated by what has happened in NSW in the past. Could it be that this reliance on concern, rather than legal process is because the treasurer has entered into free trade agreements which define health care as an industry and the terms of the agreements make probity requirements impossible to enforce?
I appreciate your position but I find it a matter of concern that the welfare of our vulnerable citizens should rely on the unenforceable "concern" of government departments, rather than the provisions of enforceable regulations. In this regard I refer you to the GAO report which I sent you and remind you that in the corporate dominated US health care industry it has been citizens and not government departments which have exposed the misuse of aged citizens for profit. While regulation in the absence of effective complementary "social control" has failed, it is essential for effective social control that the values and intentions of society be given explicit form in regulatory structures.