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 Aug 2021. 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.