Health and Community Law Alert

Royal Commission Special Edition | November 2018

You can also view and download a pdf version of this edition here.

Appointment of Alison Choy Flannigan

Leading independent business law firm Hall & Wilcox has bolstered its health, aged care, life sciences and community practices by appointing a respected leader in the field Alison Choy Flannigan as a new partner and leader of the firm’s national industry team.

Alison is a market leader, having been listed in Best Lawyers for Health & Aged Care in Australia every year since 2008, and Doyles Guide as a Preeminent Leading Health and Aged Care Lawyer in 2017 and 2018, as well as being a finalist for Partner of the Year, Health, in 2016, 2017 and 2018.

Alison was previously a partner of a national law firm and General Counsel with Ramsay Health Care Limited. She is also the Company Secretary of the National Foundation for Medical Research and Innovation and has been appointed on a number of hospital advisory committees and boards.

Alison-FlanniganAlison’s expertise is in regulatory (including health, aged care, retirement living and TGA for pharmaceutical, medical devices and health and medical research), corporate and commercial (including M&A), infrastructure projects (hospitals and aged care facilities) and privacy. She acts for a range of clients in the health, aged care and life sciences industries, as well as for not-for-profit and government clients. Alison will sit within the firm’s corporate and commercial team
and will be based in Sydney.

Managing partner Tony Macvean said Alison’s experience will significantly add to the firm’s capability in these industries, particularly with the forthcoming Royal Commission into the aged care sector.

‘Alison’s extensive experience is a major asset and we’re delighted to welcome her to the firm’ he said.

‘As more Australians retire with a significantly longer life expectancy and complex health needs, the health, aged care, life science and community sectors will continue to form an important part of the Australian economy,’ Alison said.

‘At a time when these sectors face greater public scrutiny and regulation, Hall & Wilcox’s investment in expertise in these sectors is timely. I look forward to leading the team at Hall & Wilcox to assist our clients to navigate the challenges ahead, prosper and thrive.’

The New Aged Care Quality Standard on Governance and the Royal Commission into Aged Care

By Alison Choy Flannigan, Partner

There are challenges ahead for the aged care sector, with new Aged Care Quality Standards coming into law later this year, and the Royal Commission into Aged Care Quality and Safety being announced. What do Boards and managers of Approved Providers need to do now to be prepared for the changes?

What are the new Aged Care Quality Standards?

Subject to parliamentary processes, the new single set of Aged Care Quality Standards will come into law later in 2018 (it was passed on 21 September 2018), with assessment and monitoring against these new standards commencing from  1 July 2019.

This new single set of standards will replace the Accreditation Standards, the Home Care Standards, the National Aboriginal and Torres Strait Islander Flexible Aged Care Program Quality Framework Standards, and the Transition Care Standards, and will apply to all aged care services, including residential care, home care, flexible care and services under the Commonwealth Home Support Program.

What is different?

The new Aged Care Quality Standards focus upon consumer outcomes.

New Aged Care Quality Standard 8 – organisational governance

The new Aged Care Quality Standard 8 deals with organisational governance and covers the following consumer outcome:

  • I am confident the organisation is well run. I can partner in improving the delivery of care and services.

The requisite organisational statement is:

  • The organisation’s governing body is accountable for the delivery of safe and quality care and services.

It significantly elevates the role of the ’Governing Body’, who must now be fully aware of the organisation’s compliance with all aspects of its operations, including financial performance and care and services.

What are the challenges ahead?

There are challenges in moving to a more consumer-focused and outcomes model. How are outcomes measured? What is involved in meeting consumer ‘needs, goals and preferences’?

It is currently unclear how the new Aged Care Quality and Safety Commission will measure outcomes. However, we could use Home Care CDC as an indicator. Approved Providers need to spend more effort in measuring and responding to consumer and staff feedback. Consumer wants must be balanced with consumer needs.

How do you know if you have a culture of compliance?

Boards and senior leadership will need mechanisms to measure their performance and test the measures against customer outcomes and satisfaction.

A culture of compliance can be measured in terms of consumer and staff satisfaction surveys, as well as against clinical indicators and industry benchmarks.

Some Approved Providers are using consultants for independent audits and unannounced visits to identify areas of risk and exposure.

How can you foster a change in culture and a culture of compliance?

The change can be fostered by senior leadership demonstrating that they are interested and informed about performance at the front line of service delivery, and that action and prioritisation of resources is consistent with the needs of customers
and the workforce.

A culture of compliance is when everyone within the organisation understands their compliance obligations and when staff and residents/clients feel enabled to raise concerns (in a blame-free environment without penalty or adverse treatment) and that those concerns are adequately listened to and responded to.

What should directors and managers be doing in the lead-up to the Royal Commission?

We recommend that directors and managers:

  • put risk management as a standing agenda item on their Board Agenda and identify, prioritise and address risks and review risk registers and implementation plans for continuous improvement
  • identify areas of potential risk and exposure
  • ensure that relevant documents can
  • be quickly identified
  • train staff in flexible work-practices
  • and to be more consumer-focused
  • put together an appropriate team of advisors, including lawyers and media advisors
  • review performance against clinical indicators to ascertain if there are areas of non-performance against industry benchmarks
  • ensure there is an appropriate media policy (including social media)
  • review policies and procedures, including in relation to client and staff feedback, complaint management, open disclosure, elder abuse, infection control and restraint
  • engage consumers in appropriate decisions, including their own care; this may include the use of consumer advocates.

Aged Care Royal Commission: what should I do if I get a notice to produce?

By Jacob Uljans, Partner

Like all Commonwealth Royal Commissions, the Aged Care Royal Commission (ACRC) has extensive coercive powers, including the power to compel production of documents. The obligations imposed on a recipient of a notice to produce from a Royal Commission are significant, and the penalties for non-compliance potentially severe.

Participants in the aged care sector and health sector who provide services to the aged as well as their insurers should be preparing for the ACRC and briefing external advisors now, so they are ready when the first notice to produce arrives.

The ACRC can serve a written notice on a person requiring them to produce ‘a document or a thing’ specified in the notice at a particular time and place.

A recipient of a notice to produce should take immediate steps to locate responsive documents, consider making claims for legal professional privilege or non-publication directions where appropriate, and ensure that documents to be produced are electronically collated and encoded in accordance with what will potentially be stringent electronic production protocols. This will usually require a coordinated strategy with legal advisors and e-discovery providers to manage the identification, retrieval, collation, review and production of relevant documents in a timely fashion.

Timeframes for producing documents to a Royal Commission are typically short. Penalties for non-compliance with a notice to produce (without reasonable excuse) include imprisonment for up to two years.

Opportunities to resist production to a Royal Commission are very limited. Whereas with the ACRC, the terms of reference are broad, it will be difficult to establish that documents sought in a notice are irrelevant to the inquiry. The ACRC will respect claims for legal professional privilege, but usually only where such claims are promptly made (possibly even at the time stipulated for production), properly articulated and accepted as valid by the ACRC. Production cannot be avoided on the basis that documents would tend to incriminate or expose a person to a penalty. Confidential information falling short of a secret process of manufacture cannot be withheld from production. Any redactions or non-publication directions based on confidentiality considerations are in the discretion of the ACRC.

Documents produced to the ACRC may potentially be tendered in hearings and made publicly available on its website.

The Hayne Financial Services Royal Commission utilised the notice to produce power extensively and highly effectively in its inquiries. A number of Hall & Wilcox clients received notices, with some being served with multiple notices on a rolling, even daily, basis. Significant volumes of material relating to a broad range of matters spanning a five-year period were in some cases required to be produced. The timeframes mandated for production were notoriously short – on some occasions requiring production within 24 hours.

Participants in the aged care sector who have not taken pre-emptive steps to identify, retrieve and review potentially relevant documents before receiving such a notice may find themselves caught short, with insufficient time to properly respond following receipt of a notice. Start your preparation now.

Dealing with elder abuse in the workplace

By Karl Rozenbergs, PartnerDealing with elder abuse in the workplace

Elder abuse is a highly emotive issue and one that may come under the spotlight in the Royal Commission into Aged Care and Quality, as the Commissioners have been asked to consider ‘the extent of substandard care’ that is being provided to residents of aged care facilities.

Currently, under the Aged Care Act 1997 (Cth), aged care providers are compelled to report ‘reportable assaults’ to a police officer and the Department of Health within 24 hours of the alleged or suspected assault. The definition of a ‘reportable assault’ is more limited than the World Health Organisation’s definition of elder abuse and is perhaps one of the reasons why elder abuse is so heavily under-reported in Australia.

If a ‘reportable assault’ is alleged or suspected, aged care providers can limit their exposure by acting in accordance with mandatory reporting obligations imposed by the Department of Health).

Employees dismissed as a result of ‘reportable assaults’

The most common action taken by employees dismissed as a result of ‘reportable assaults’ is an unfair dismissal application. The majority of applications that we have reviewed have involved issues of verbal abuse (approximately 38%) and physical assault (approximately 29%). In this sector, the Fair Work Commission often take a sympathetic approach towards employees, given 70% of the unfair dismissal applications we’ve reviewed were successful, and one-third of applicants received reinstatement, being the primary remedy under the Fair Work Act 2009 (Cth).

In the majority of these decisions, the primary reason for the employee’s success has been a lack of compelling evidence and an absence of procedural fairness afforded to the dismissed employee.

The cases are often defined by a ‘he said, she said’ scenario and reliance on a sole witness acts as a key obstacle for employers.

Tips for employers

Due to the highly emotive nature of elder abuse allegations, failing to have the proper processes in place can often lead to significant issues for employers.

Aged care service providers should consider the notions of procedural fairness as paramount. They should seek to remain impartial, give clear explanations of what allegations have been made, and allow the employee reasonable opportunities to respond. All witnesses should be interviewed, and, given the common issues associated with a lack of evidence, employers should consider whether it is necessary to review emails, file notes, photographs and, where necessary, CCTV footage (subject to relevant workplace surveillance limitations).

Aged care service providers should also have systems in place to deal with occurrences of elder abuse experienced or alleged by care recipients, regardless of the provider’s obligations under the Aged Care Act 1997 (Cth). Comprehensive policies and procedures are required. These should clearly identify unacceptable workplace conduct, and outline procedures to follow if there is a realistic suspicion or allegation of abuse.

We can help

If you would like further assistance, our employment team has a substantial range of experience, which is complemented by our firm’s strong focus and expertise in the health and aged care sector.

We can help with:

  • advice on your obligations
  • drafting appropriate protocols and policies
  • investigating and dealing with allegations of elder abuse against  an employee
  • defending claims made against you.

The use of CCTV in aged care

By Alison Choy Flannigan, Partner

Recent media reports, including the Australian Broadcasting Corporation’s Four Corners program, have highlighted the issue of the use of CCTV in aged care facilities and the safety of aged care residents/clients.

Legislation

There are a number of State and Territory laws that restrict the use of listening, optical, data and tracking surveillance devices, some with criminal offences.

The right to feel safe

Subject to parliamentary processes, the new single set of Aged Care Quality Standards will come into law later in 2018, with assessment and monitoring against these new standards commencing from 1 July 2019.

A copy of an exposure draft of the Aged Care Legislation Amendment (Single Quality Framework) Principles 2018 (Cth), which contains the new Standards, is available on the Department of Health website.

There is a New Aged Care Quality Standard 5, which deals with resident/client safety and requires the Approved Provider to ensure that residents/clients feel safe.

Privacy

The Privacy Act 1988 (Cth) applies to all Australian private sector health service providers that hold health information (other than in an employee record), irrespective of their annual turnover: section 6D(4)(b).

However, generally, the Privacy Act does not apply to an individual acting in a personal capacity. Currently, the Privacy Act does not apply to employee records, which are dealt with separately under the laws of confidentiality and workplace surveillance laws.

It is recommended that if you wish to photograph, video or take any other images or recordings of personal information of a patient or resident and intend to use that image for business purposes that the consent (preferably written) of the individual is obtained.

If an organisation holds images of a person, including CCTV footage, that information is ‘personal information’ and the individual has the right to access that information unless an exception applies under APP 12. If access is provided, then the images of other people will need to be pixilated to protect their privacy.

Workplace surveillance legislation

There are laws which deal with workplace surveillance in various States and Territories. For example, in New South Wales, under the Workplace Surveillance Act 2005 (NSW), an employer commits an offence if it engages in the surveillance of an employee without providing written notice (in a specified form) at least 14 days before the surveillance commences: section 10.

For camera surveillance of an employee, it is only permissible to use cameras for surveillance where:

  • the cameras are clearly visible in the place where the surveillance is taking place
  • there are signs notifying people that they may be under surveillance in that place which are clearly visible at the entrance to that place: section 11.

The definition of employer includes a person for whom an employee performs voluntary work.

Covert surveillance is permissible in very limited circumstances, for example, for the purpose of establishing whether or not an employee is involved in any unlawful activity while at work for the employer. Law enforcement agencies are permitted to conduct such surveillance and usually only with authority of a warrant issued by a Judge or Magistrate. A covert surveillance authority is only to be used in relation to unlawful conduct and may not be used for performance or other matters concerning the employee/employer relationship and covert surveillance must not be taken in any change room, toilet facility or shower or other bathing facility: section 20.

Any employer (including a person contracting for services) conducting surveillance in breach of the Workplace Surveillance Act is liable to prosecution under this Act.

Surveillance may be undertaken by agreement: section 14.

Conditional rights of entry and consent

If an Approved Provider/operator wishes to restrict people (including residents, staff and visitors) from infringing the rights of other residents and staff by videoing or recording without their consent, an option that may be explored is the introduction of a reasonable policy or Code of Conduct, setting out rules as a condition of entry into their premises, similar to conditions of entry into shopping centres. In order to achieve this, reasonable notice must be provided of the conditions of entry.

The common areas of an aged care facility or hospital may be ‘private property’, to which the Inclosed Lands Protection Act 1901 (NSW) and the laws of trespass to property might apply to restrict access to non-residents if the policy/Code is infringed: Halliday v Neville (1984) 155 CLR 1, 8; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.

If covert surveillance is required, it is best to contact the police to seek a court warrant.

We have used NSW as an example. Other States and Territories may have similar legislation. Please contact us to find out more information specific to your jurisdiction.


For further information please contact: