The Aged Care Royal Commission – it begins

Following a brief period of public and stakeholder consultation, the Federal Government has wasted no time in formally establishing the Royal Commission into Aged Care Quality and Safety, by the issue of Letters Patent dated 8 October 2018.

Who are the Commissioners?

Two Commissioners have been appointed to undertake the inquiry, Justice Joseph McGrath and Lynelle Briggs AO.

Justice McGrath is a judge of the Supreme Court of Western Australian and former WA Director of Public Prosecutions. While at the bar, his Honour was involved in various Royal Commissions. Justice McGrath will chair the Aged Care Royal Commission.

Ms Briggs is a distinguished former public servant, having held several senior roles including CEO of Medicare and Australian Public Service Commissioner. She chaired a substantial inquiry into health and safety laws on Canberra’s building sites in 2012 (the ‘Getting Home Safely’ inquiry).

When, where and how will the Commission commence?

The Commission’s inquiry is required to begin ‘as soon as practicable’. The Commission will be based in Adelaide, the location of the notorious Oakden aged care facility. It is expected that issues concerning the Oakden facility, which was the subject of a scathing Independent Commission Against Corruption report by the Honourable Bruce Lander QC earlier this year, will feature substantially in the Commission hearings. However, it can be assumed that Commission hearings may occur in other states as well, in order to accommodate elderly or infirm witnesses.

Discussions will no doubt already be underway in relation to the appointment of counsel and solicitors assisting the Commission. The Commission’s website will be established shortly, which will ultimately allow for public submissions and provide details of Commission hearings, amongst other matters. Practice Guidelines will be issued governing procedural issues, including protocols for production of documents, seeking leave to appear and claiming legal professional privilege or applying for non-publication directions.

It is likely, in view of the broad terms of reference, that a case study approach will be adopted by the Commission.

How long will the Commission run for?

The inquiry is to run for approximately 18 months – six months longer than the Financial Services Royal Commission.

An interim report is due by 31 October 2019. The Commission’s final report, including findings and recommendations, is due by 30 April 2020.

What are the Commission’s terms of reference?

The terms of reference have been described by Health Minister Greg Hunt as ‘deliberately broad’, to allow the Commission to look into a wide range of issues across the sector.

The Commission is required and authorised to inquire into a range of matters, including:

• The quality of aged care services (being services delivered by, among others, approved providers under the Aged Care Act) provided to Australians and the extent to which those services meet the needs of the people accessing them.
• The extent of substandard care, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response.
• How best to deliver aged care services to people with disabilities in aged care (including younger people) and Australians living with dementia, particularly having regard to the importance of dementia care for the future of aged care services.
• Future challenges and opportunities for delivering accessible, affordable and high quality aged care services, including in the context of changing demographics and preferences (including in-home care) and in remote, rural and regional Australia.
• What can be done to strengthen the aged care services system and ensure that services are person-focused and delivered in a sustainable way.

The Commission is also directed to have regard to, amongst other things:

• Commonwealth funding of aged care services.
• All aspects of the quality and safety of aged care services, including dignity, choice and control, clinical care, medication management, mental health, personal care, nutrition, positive behaviour supports to reduce or eliminate the use of restrictive practices, end of life care and systems to ensure high quality care is delivered, such as governance arrangements and management support systems.
• The important role of the aged care workforce.
• Examples of good practice and innovative models in delivering aged care services.

While existing or historical examples of substandard care in the sector will inevitably feature significantly in the hearings, and dominate the headlines, the terms of reference reveal a clear directive that the Commission focus on what the Australian Government, industry, families and the wider community can do in future to ensure that aged care services are high quality and safe.

The full terms of reference, as set out in the Letters Patent, can be found here.

Powers of the Commission

The Aged Care Royal Commission, like all Commonwealth Royal Commissions, will have considerable powers under the Royal Commissions Act 1902 to compel the production of documents and summon witnesses. Documents must be produced (often on short notice) and questions answered under oath, even if to do so may expose a person to criminal prosecution or civil penalties – otherwise than in respect of ongoing criminal or penalty proceedings. Claims for legal professional privilege over documents must be made and substantiated at an early stage (potentially at the time of production) if they are to be accepted by the Commission. Confidentiality directions may be expected to be made only in very limited circumstances.

It remains to be seen how the Commissioners and counsel assisting will approach their inquiry, and whether some of the highly effective techniques to obtain information and evidence employed by Commissioner Hayne in the Financial Services Royal Commission will be similarly employed.

Participants in the aged care services sector should be carefully considering the scope of the Commission’s terms of reference and identifying any potential areas of concern, locating and reviewing relevant documents and ensuring they are otherwise prepared to respond to the Commission’s information and document requests on short notice.