Royal Commission into Aged Care Update

Some important issues have been clarified at the Royal Commission into Aged Care Quality & Safety’s first hearing, held in Adelaide on 18 January. The Commission has confirmed that Approved Providers need to make themselves available and cannot prevent witnesses from attending the Commission. The Commission will be issuing notices to produce or provide information soon and Approved Providers need to start preparing now.

The Royal Commission into Aged Care Quality & Safety (Commission) held its first hearing in Adelaide on Friday, 18 January 2019.

We note the following:

1. The Commission indicated that it will be comparing data sets – that is, it will be data matching against what Approved Providers previously have reported. In our opinion, this will include comparisons to previous mandatory reporting to the Commonwealth Department of Health and the former Aged Care Complaints Commission.
2. The Commission confirmed that Approved Providers that do not engage with the Commission draw attention to themselves.
3. The Commission confirmed the following sections of the Royal Commission Act 1902 (Cth). It is important that Approved Providers and health care providers do not prejudice or disadvantage care recipients, patients and their families or staff from approaching the Commission or giving information because they have approached the Commission or have given information.

6L Preventing witness from attending

1. Any person who intentionally prevents any person who has been summoned to attend as a witness before any Royal Commission from attending as a witness or from producing anything in evidence pursuant to the summons to attend commits an indictable offence.Penalty: Imprisonment for one year.
2. Any person who intentionally prevents any person who is required by a notice under subsection 2(3A) or (3C) to produce a document or other thing, or to give information or a statement, from producing the document or thing, or giving the information or statement, in accordance with the notice commits an indictable offence. Penalty: Imprisonment for 1 year.

6M Injury to witness

Any person who uses, causes or inflicts, any violence, punishment, damage, loss, or disadvantage to any person for or on account of:

1. the person having appeared as a witness before any Royal Commission; or
2. any evidence given by him or her before any Royal Commission; or
3. the person having produced a document or thing, or given information or a statement, pursuant to a summons, requirement or notice under section 2;
   commits an indictable offence. Penalty: 10 penalty units ($2,100) or imprisonment for 1 year.

6N Dismissal by employers of witness

1. Any employer who dismisses any employee from his or her employment, or prejudices any employee in his or her employment, for or on account of the employee having:
   1. appeared as a witness before a Royal Commission; or
   2. given evidence before a Royal Commission; or
   3. produced a document or thing, or given information or a statement, pursuant to a summons, requirement or notice under section 2;

   commits an indictable offence.

   Penalty: 10 penalty units ($2,100) or imprisonment for 1 year.

2. Subsection (1) does not apply if the employee was dismissed or prejudiced in his or her employment for some reason other than the reasons mentioned in subsection (1).

Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).

The Commission will be issuing notices to produce or provide information soon.

If you receive a Notice to Produce or provide information, you should seek legal advice and attend to it within the required timeframe, or if necessary, seek an extension. Failure to comply could result in 2 years imprisonment. Production should be limited to the scope of the notice, otherwise, there could be a breach of privacy and confidentiality obligations.

The Commission can also issue search warrants.

There are a number of Practice Guidelines. The document production guidelines are very detailed.

In addition to the above penalties, a failure to comply with notices may result in reputational damage to the organisation.