The Lantern Project: Creating a nationally consistent interpretation of food safety compliance in Aged Care, the need to improve nutrition and food choices for our elderly
By Joe Lederman
(FoodLegal Co-Principal)
© Lawmedia Pty
Ltd, November 2019
Residents of
aged care facilities should feel like they have control over the food that they
consume. One way to enhance agency and ensure that residents have access to adequate
choice of nutritious foods would be to implement a mandatory legislative instrument
for a nationally consistent approach to the interpretation of food laws that
apply to aged care facilities, with an emphasis on providing stimulating food
choices despite the food safety definition of the elderly consumer as a “vulnerable
person”.
The Lantern
Project Australia
Since 2013,
FoodLegal has participated in the activities of the Lantern Project, which is a
non-profit organisation with a vision to improve the quality of life of older
Australians through good food and nutrition. The Lantern Project now has over
1,100 members from Australian and international organisations. Members include
aged care organisations, peak industry bodies, allied health, researchers and
resident advocates.
A recent focus
of the Lantern Project is to advocate for legislative reform on the
interpretation of food safety provisions that apply to the consumption of food
within aged care facilities. It recommends a national application of food
regulations in a way that does not deprive the elderly consumer of choice and
allows them to retain a sense of control. As it stands, the current
inconsistency between the food laws in the aged care sector may cause
difficulty in interpreting such provisions.
Current
regulatory framework
Food
Standards Code
Each food
business is subject to the Australia New Zealand Food Standards Code (Food
Standards Code), a set of national standards that ensures the safe supply
of food. These standards are coordinated by Food Standards Australia New
Zealand (FSANZ). While the Food Standards Code is developed at a
national level, it is enforced by the State and Territory governments through
state guidance documents. Enforcement action may also be delegated to local
councils who rely on council guidance documents.
The most relevant
standards in the Food Standards Code for aged care service providers are found
in Chapter 3.
·
Standard
3.3.1 specifies the situations where a Food Safety Program must be developed
for food services to “vulnerable persons”, which includes any person in the
care of an aged care establishment or nursing home.
·
Standard
3.2.1 prescribes that for a Food Safety Program, a food business must identify
‘potential hazards’ within food handling processes and develop and implement a
food safety program to control those hazards, among other things.
Aged Care
Quality Standards
The aged care
sector has undergone notable reform in 2019. In particular, the new Aged Care
Quality Standards came into effect on 1 July 2019. This instrument
compiled the four previous sets of aged care standards into a single set. It
applies to all aged care facilities including residential care, home care,
flexible care, and Commonwealth Home Support Program services.
The standards
that are particularly relevant to a food business’ operations are found within Standard
1: Consumer dignity and choice and Standard 4: Services and support for
daily living. Some applicable provisions are listed below:
·
Requirement
1(3)(a): consumers must be treated with dignity and respect, with
their identity, culture and diversity valued.
·
Requirement
1(3)(c): each consumer is supported to exercise choice and independence
about their care and services.
·
Requirement
4(3)(a): each consumer gets safe and effective services and support
for daily living.
·
Requirement
4(3)(f): where meals are provided, they are varied and of suitable quality
and quantity.
Interplay between
the Food Standards Code and the Aged Care Quality Standards
Currently,
there are numerous guidance documents on the interpretation of Chapter 3 of the
Food Standards Code in the context of aged care food providers and vulnerable
persons.
Despite this, conflict
exists between the application of the Food Standards Code and the Aged Care
Quality Standards.
For example, food
safety auditors when assessing compliance with the Aged Care Quality Standards
consider the following to be practices of food safety, whereas Chapter 3 of the
Food Standards Code does not:
·
Adequate
nutrition and hydration to reduce pressure sores and the need for hospital
admissions.
·
Appropriate
food textures to reduce choking risk, which is a problem for 40-60% of aged
care patrons.
Further, many
food safety auditors currently interpret food safety laws incorrectly to
prohibit all “potentially hazardous” foods. Such auditors take the view that it
is unsafe for an aged care facility to offer any “high risk” or “potentially hazardous”
food, given the vulnerability of residents. Such an approach restricts the diet
of the resident and creates tension with the principles under the Aged Care
Quality Standards.
The concern is
that by focusing on a generic level of food safety in a manner analogous to an
audit of a food shop or food factory, many aged care residents are deprived of
access to many of the enjoyable food experiences they could have had in a
normal domestic household setting. This deprives the resident of his or her wellbeing
or any choice of a varied nutritious diet. The only real “choice” that a
resident has in such a situation is the choice to not eat at all. Aged care
residential homes are not providing adequate food intake or are limiting meals
to mostly packaged food equivalents.
Proposal for
a new legislative instrument
The Lantern
Project has been advocating the development of a separate legislative instrument
that will operate as a set of laws for food in aged care residential homes that
will provide a better interpretative framework than the standalone laws of the Foods
Standards Code, the Australian Aged Care Quality Standards, and international
standards such as ISO 22000 and ISO 19011. Such an instrument would promote
consistency between these different sources of law. Further, it would enhance certainty
in interpreting Chapter 3 of the Food Standards Code without denying resident
choice.
Like the Food
Standards Code, the instrument should have legislative backing and
enforceability. The Lantern Project has recommended that the document would be
best structured as a standalone document to the Food Standards Code, rather
than embedded within it. In this way, it can be developed and maintained by a
separate body that understands the aged care principles of resident choice.
The Lantern
Project notes that there have been recent research and technological
developments that may allow the elderly to safely consume foods that might
previously have been considered to pose a higher risk. There is also
considerable ongoing research on developing special foods for the aged.
Further, there are numerous control measures that could be imposed on the
preparation of higher risk foods to ensure their safe consumption, rather than
outright banning these foods for residents of aged care facilities. A separate
legislative instrument would be able to account for these considerations in developing
the regulation of higher risk foods, lending focus to quality outcomes for the
consumer rather than on manufacturer processes.
This is general information rather than legal advice and is current as of 13 Nov 2019. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.