Aged Care Royal Commission Update

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All providers would by now be aware that the Royal Commission has written to “larger providers” with an invitation to provide an early written submission. Here are some of the key issues to come out of that letter:

1. This is an invitation only.

The Commissioners have extensive coercive powers under which they can order providers to give information but have not used them in this initial letter. There is therefore no legal obligation on providers to respond.

However, failing to respond could come back to haunt providers if evidence is subsequently given to the Commission by a care recipient’s family or the Aged Care Complaints Commissioner. From both a legal and reputational perspective, it would be far better to be open and transparent from the outset.

This is also an opportunity for providers to give the Commissioners feedback on exactly what providers believe to be the problems within the aged care system. The more providers remind them of the findings and recommendations of the many other inquiries into aged care, the better chance there is of those findings being finally acted on.

2. Personal information should be protected.

This initial invitation does not give providers any protection from releasing personal and health care information about care recipients or other people involved in delivering care. Providers should therefore ensure that they do not release information which they are otherwise prohibited from releasing.

3. What is substandard care?

Question 1 in the Commissioners’ letter asks providers to list details of “any occasion when your service or outlet has provided substandard care” in the period since 1 July 2013. This terminology has been taken directly from the Commission’s terms of reference with the first matter that it was asked to inquire into being:

“the quality of aged care services provided to Australians, the extent to which those services meet the needs of the people accessing them, the extent of substandard care being provided, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response;”

This is the context in which providers should consider whether there are any matters to include in their response. These may, or may not be, matters that have resulted in complaints or compliance action by the Quality Agency or the Department. The difficult part is determining what standard the care should be measured against; the standards in the Quality of Care Principles, community expectations or the local GP or some other measure. In the absence of any clarity coming from the Commission, a common sense approach is likely to be the best way forward with the starting point being a provider’s clinical practitioner/s and whoever is responsible for risk management considering the standard the provider will report against.

4. It will take a lot of work

What is certain is that providers should not underestimate the work involved in compiling a response to this invitation. Smaller providers who have the benefit of additional time and seeing the letters sent to larger providers should begin preparations for their responses now.

Please contact us if you require any assistance in the preparation of a response.

Joanne O'Brien

An expert with years of experience in, and passion for, advising the not for profit sector in all aspects of their operations from creation, management, mergers and governance through to risk and compliance and beyond, particularly in the aged care sector.