Documenting against the Statement of Rights: dignity, risk, and supported decision-making

The Statement of Rights under the Aged Care Act 2024

The Statement of Rights is a Schedule to the Aged Care Act 2024 that sets out the rights of every person receiving Commonwealth-funded aged care. Unlike the previous Charter of Aged Care Rights, the Statement of Rights is directly enforceable — it is part of the Act, not a subordinate instrument — and providers have explicit obligations to actively uphold each right, not simply to not violate them.

The rights include the right to be treated with dignity and respect; to make decisions about one's own care, including decisions that others may consider unwise; to receive safe, quality care that meets assessed needs; to live free from abuse, neglect, and restrictive practices used without proper authorisation; to have one's privacy, cultural identity, and individual needs respected; and to access advocates, support persons, and the Commission without interference. These rights apply to every person receiving care, regardless of their cognitive capacity, their health status, or the nature of the services they receive.

The strengthened Quality Standards — particularly Standard 1 (The Person and Their Rights) and Standard 2 (The Person) — require providers to demonstrate that the rights in the Statement are being actively respected for each individual person in their care. In Commission audits, this demonstration is made primarily through documentation: the records that show what happened, what the person chose, and how the provider responded.

Documenting dignity of risk: when the person's choice carries risk

Dignity of risk is the principle that a person has the right to make decisions that involve personal risk — because the right to make meaningful choices requires accepting that some choices carry consequences the person might prefer to avoid but chooses to accept. For aged care providers, dignity of risk creates a documentation obligation that is more nuanced than simply recording whether a person agreed to something.

When a person makes a choice that involves risk — declining a dietary recommendation, choosing to continue walking unassisted despite falls history, refusing a medication, or choosing to participate in a physically demanding activity — the documentation must show three things. First, that the person was provided with adequate information to make an informed choice: what the risk is, what the likely outcomes are, what alternatives exist. Second, that the person genuinely understood the risk and made the choice freely, without pressure or coercion. Third, that the provider's response was to support the person's choice — through agreed monitoring, risk mitigation measures the person accepted, and a clear plan for what happens if the risk eventuates — rather than to override it through a restrictive practice or administrative intervention.

A record that says "resident declined physio" does not evidence dignity of risk. It evidences a refusal. What happened before that refusal — the conversation, the information provided, the person's expressed reasons — is the evidentiary substance that determines whether the provider upheld or failed the person's right to make decisions about their own care. Auditors reviewing a file of bare refusals cannot determine compliance; providers that document the substance of these conversations create records that actually demonstrate rights-based care.

Documenting supported decision-making: what records must show

Supported decision-making is the process by which providers assist a person to understand information, weigh options, and make decisions about their care — using communication methods, formats, and support appropriate to the person's needs. The Statement of Rights explicitly provides that a person has the right to make decisions about their care, and that providers must support their capacity to do so. Supported decision-making is not optional for people who find decision-making challenging — it is the provider's obligation to adapt its processes to the person, not to ask the person to adapt to the provider's convenience.

For documentation purposes, supported decision-making records must show the process, not just the outcome. A record that documents only that the person agreed to something, or only that the person declined something, does not establish that supported decision-making occurred. The record must show how the information was provided, what adjustments were made to support the person's understanding, who else was involved if the person wanted support, and what the person decided — and it must be specific enough that a reader who was not present can understand what happened.

Substitute decision-making and best interests

Where a person lacks the capacity to make a specific decision — due to cognitive impairment, acute illness, or other factors — providers must involve the person's appointed substitute decision-maker (under a relevant instrument such as an enduring power of attorney or guardianship order) and document that involvement. Records must show that the substitute decision-maker was identified, that they were involved in the decision, that the decision was made in the person's best interests (with reference to the person's known wishes, values, and preferences), and that the person's participation was maximised to the extent possible.

A common documentation failure in this area is records that describe a substitute decision-maker as being notified of a decision that has already been made, rather than as being consulted in the making of the decision. Auditors are alert to this distinction. Documentation of a family member being "informed" of a change in care — without any record of their involvement in the decision — does not evidence substitute decision-making; it evidences notification after the fact.

The difference between a rights-evidencing record and a bare record

The distinction between documentation that evidences the Statement of Rights and documentation that does not is not primarily about length or technical detail — it is about specificity and substance. Auditors can identify rights-evidencing records by whether they show the person as an active agent in their own care, or as a passive recipient of care that was decided for them.

Person as agent vs. person as subject

Records that evidence rights-based care describe what the person wanted, what they chose, how they were involved, and how the provider responded to their expressed wishes. Records that fail to evidence rights-based care describe what the provider did to or for the person — treatments administered, activities scheduled, assistance provided — without any reflection of the person's participation in those decisions. Both types of record may accurately describe the care that was delivered. Only one of them demonstrates compliance with the Statement of Rights.

Specificity about the person, not the task

Rights-evidencing records are specific about the individual — their expressed preferences on the day, their engagement with a particular activity, a conversation that mattered to them, a concern they raised and how it was responded to. Records that describe tasks completed — assistance with personal care, medication administered, meals provided — without any specific content about this person on this day do not evidence that care was person-centred, that the person's rights were respected, or that the person's individual needs were considered. They evidence that tasks occurred.

For providers building documentation systems that genuinely support rights-based care, the question to ask about every record is not "did we document the task?" but "does this record show that the person was treated with dignity and that their choices were respected?" If the answer is no, the record has not fulfilled its compliance function — regardless of whether the care itself was appropriate.