The Royal Commission into Aged Care Quality and Safety was established on 8 October 2018, and will be led by Royal Commissioners the Hon Justice Richard Tracey AM RFD QC and Ms Lynelle Briggs AO. The scope of matters into which the Commission is required to inquire is exceptionally wide, encompassing essentially the entire aged care sector in Australia.
Matters to be investigated include the quality of aged care services currently being provided to Australians, the extent to which substandard care has been provided, including systemic failures and abuse, and what actions should be taken in response to those findings. The Commission also seeks to address a number of more specific aspects of the sector, including:
- how care can best be delivered to people with disabilities residing in aged care facilities;
- how we can best care for the increasing number of Australians suffering from dementia;
- what current and future challenges the sector faces in terms of funding, accessibility and service delivery both in urban areas and in remote, rural and regional Australia.
In addition to identifying more negative issues of substandard care and industry challenges generally, the Commission has also been tasked with understanding how aged care services can be improved, by way of innovative models of care and increased use of technology, so that end consumers and their families have greater choice, control and independence over how they live their lives.
Given the breadth of topics that the Commission has been tasked to cover, aged care providers have been desperate for more specific guidance as to what, if anything, their organisation is required to do.
The Royal Commission’s request for information
Between 23 and 30 November 2018, every approved provider of aged care services in Australia received a letter from the Royal Commission. That letter requests aged care facilities provide the Commission with submissions on a number of topics, including whether:
- there have been any occasions of substandard care, abuse or mistreatment at their facility since 1 July 2013;
- there have been complaints made against the service provider about substandard care or abuse since 1 July 2013;
- the service provider has done anything to ensure it provides high quality and safe care to consumers;
- there are any special care arrangements for persons living at the facility under the age of 65; and
- there has been any difficulty in accessing medical care for its consumers.
The Commission has also asked whether service providers can identify ways in which their service, or the industry in general, could be changed to improve consumer outcomes and lift the quality and safety of aged care.
Does my organisation have to respond?
The Commission’s request has been framed as an information gathering exercise, which will allow the Commission to identify and focus on specific areas of concern going forward. It is important to note that, at this stage, providers are not compelled to provide any information or response to the Commission.
However, organisations should very carefully consider whether there may be consequences in the future if they elect not to provide a response to the Commission.
They should be aware that the Commission has very extensive powers to compel persons and entities to produce documents, give information or statements, and indeed to appear at a hearing before the Commission to give oral evidence and be subject to cross examination by Counsel Assisting the Commission.
They should also be aware that the Commission will shortly be obtaining submissions and evidence from other stakeholders within the industry, including consumers, nursing home residents, the general public and the various agencies that regulate the aged care sector, including the Aged Care Quality Agency and the Aged Care Complaints Commissioner.
If the Commission receives a complaint or submission about an aged care organisation, and that organisation has elected not to voluntarily disclose the same information to the Commission, there is a significant chance that key personnel within that organisation may be summoned to appear before the Commission to explain the discrepancy. The publicity for any organisation resulting from that appearance is unlikely to be positive.
What should my Aged Care organisation be doing now to respond to the Royal Commission?
Organisations should be reviewing their records for any complaints or instances of substandard care, mistreatment or abuse that have occurred in the last five years. Senior and experienced staff should also be consulted to make sure all relevant incidents are identified and documented.
Whilst the terms “substandard care”, “mistreatment” and “abuse” are not specifically defined, a common sense, inclusive approach should be taken at first instance. Providers should consider whether any circumstances identified have failed to meet the high standards of quality and safety that the Australian community expects to be provided to elderly and vulnerable people. If you are concerned about whether any behaviour or circumstance meets the definition of “substandard care”, it would be wise to seek independent legal advice.
If your organisation is one of the 100 largest providers in Australia, your response to the Commission is due by Monday, 7 January 2019. For all other organisations, the deadline for response is Friday, 8 February 2019. As the Commission is unlikely to grant any extensions in time for providing a response, providers should be proactive in identifying and locating relevant documents, especially at such a busy time of year.
If you think your organisation needs help with:
- gathering and reviewing documents and records;
- identifying whether any behaviour or conduct meets the definition of substandard care, mistreatment or abuse; or
- drafting formal submissions to be provided to the Royal Commission;
Governance Institute of Australia – Aged Care Conor Breheny and Tom Darbyshire were invited to present the Governance Institute of Australia’s Perth Governance in Aged Care workshops.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.