The Aged Care Royal Commission – first shots fired

The largest 100 aged care service providers in Australia will have very recently received initial correspondence from the Royal Commission into Aged Care Quality and Safety (Commission) inviting early submissions.

The Commission’s letter is the first significant step in advance of the substantive hearings to be held in 2019, following the establishment of the Commission on 8 October 2018.

What is the Commission’s letter about?

The Commission’s letter is an ‘invitation’ to providers to give an ‘early written submission’ in relation to a number of matters relevant to the Commission’s inquiry. Early submissions by the top 100 providers are due on Monday 7 January 2019.

In our previous update, we noted the possibility of the Commission adopting some of the same approaches and strategies deployed to great effect by Commissioner Hayne in the Financial Services Royal Commission. Early on in the Financial Services Royal Commission, financial services entities were invited to self-disclose instances of misconduct and conduct falling below community standards and expectations that had taken place over a number of years, in the form of comprehensive written submissions of not more than 50 pages.

The Commission’s present ‘invitation’ similarly invites self-disclosure by aged care providers in submissions of up to 50 pages – with separate submissions required for each service or outlet operated by a provider – in response to a series of questions directed to matters arising from the Commission’s terms of reference.

The moderate language of the ‘request’ should not be misinterpreted. In the Financial Services Royal Commission, late, incomplete, or non-existent submissions were the subject of criticism by both the Commissioner and Counsel Assisting.

It is notable, however, that unlike a notice to produce documents or a summons, the Commission’s letter is not supported by a statutory information-gathering power and a provider’s failure to respond will not itself attract a penalty. However, any providers who do not respond – and their motivations for doing so – are likely to be the subject of particularly close scrutiny by the Commission.

As occurred in the Financial Services Royal Commission, the early submissions received will be used by the Commission to direct its further inquiries, and may subsequently be made publicly available.

What is the Commission focusing on?

The Commission’s letter contains eight primary questions, a number of which contain several sub-questions. Some of the questions require recipients to compile information from as far back as 1 July 2013.

Both aspects of the Commission’s terms of reference – the retrospective (‘naming and shaming’; focusing on identifying past instances of neglect or abuse) and the prospective (policy development-directed; seeking to identify positive improvements that could be made in the sector) – are evident in the questions posed.

The Commission’s letter requires that providers identify each instance of, and all complaints relating to, ‘substandard care’ during the past five years, including the actions taken in response and whether the substandard care was the result of a ‘systemic failure’.

What the Commission considers to be ‘substandard’ in the context of care remains unclear, except to the extent that mistreatment and abuse expressly included as being ‘substandard’.

‘Substandard care’ was a term used by the Federal Parliamentary Committee in its investigation into allegations of mistreatment at the Oakden facility and was distinguished in that report from allegations of abusive practices (some of which were reported as criminal acts). The extent to which the Quality of Care Amendment (Single Quality Frameworks) Principles 2018 (which will apply from 1 July 2019), and the existing legislative regime governing approved providers, might prescribe the ‘standard’ against which ‘substandard care’ is to be judged will also need to be considered.

What constitutes a ‘systemic failure’ will also be the subject of much discussion and close analysis.

We expect that the Commission will give further guidance on these issues at (or perhaps prior to) the first preliminary hearing, as occurred in the Financial Services Royal Commission, where Commissioner Hayne addressed the vexed question of what is conduct that falls below ‘community standards and expectations’.

The Commission’s letter also invites providers to identify what, if anything, they have done since July 2013 to (amongst other things) ensure the services they provide are of high quality, safe and person-centred.

The Commission also seeks details relating to the provision of services to people younger than 65, reinforcing that arrangements for younger people living with disabilities in aged care also form part of the Commission’s remit.

In addition, the letter invites consideration and responses on broader policy issues, such as the interface between primary care and other types of care (eg dental, disability, mental health, palliative) and aged care providers, and seeks submissions as to other changes that could be made to improve outcomes.

What if I haven’t received a letter from the Commission?

If you represent a smaller aged care provider that has not received a letter from the Commission, you may be forgiven for thinking your Christmas break is safe from the Commission’s intervention.

Unfortunately, you would be wrong – the Commission will separately be sending similar correspondence to smaller providers shortly. However, smaller providers are expected to have until February 2019 to provide their response.

The Commission’s letter also indicates that a preliminary hearing will be held in Adelaide in December 2018.

The import of the process started by today’s letters is clear – where there are instances or complaints of substandard care, mistreatment or abuse in your organisation, it is vital to engage experienced external team (including solicitors, counsel and document support), as well as to establish an internal team to coordinate the provider’s response.

Christmas may be just around the corner, but the Aged Care Royal Commission is coming first…


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