Royal Commission announced

The Federal Government has announced that it will establish a Royal Commission into Aged Care Quality & Safety within Australia.

Consultation on the Commission’s terms of reference

The Government has invited consultations to help develop the Commission’s terms of reference.

The Government received over 3000 submissions as part of that process.

The Federal Minister for Senior Australians and Aged Care has also met several times over recent days with representatives from industry, consumer, workforce, and peak interest groups.

The Government recently advised that the consultation period has closed – but it is understood that the Minister is continuing to consult with industry and other peak interest groups.

When will the Commission’s terms come out?

A date has not yet been fixed for the publication of the Commission’s terms.

Prime Minister Scott Morrison has said that a “hard and fast time line” for the release of the terms has not yet been set as the Government is concerned to “get the terms right”.

It remains to be seen whether the Government proceeds to finalise the terms and establish the Commission without releasing a draft for further comment.

Previously, in the context of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, the Government released draft terms and undertook further, informal consultations.

It seems likely that this will occur – but there is no guarantee.

If you’re interested in having your say when draft terms are formally released, make sure you’re prepared. If further consultation occurs, you may not have long in which to take up the opportunity.

When will the Commission start? Who will be appointed as Commissioner?

The Government has not committed to a firm start date for the Commission, and it has not yet released the detail of who the Commissioner (or Commissioners) will be.

The Government has indicated, however, that the Commission will likely be up and running by the end of 2018.

What might an end of 2018 start date mean? Take-outs from the Financial Services Royal Commission.

The Financial Services Royal Commission was established in mid-December 2017.

Many businesses subsequently received requests from the Commissioner to provide substantial information to the Commission in mid- to late- December 2017 and given six weeks to respond to those requests so that hearings could start in early March 2018.

Many of the businesses who received those requests from the Commissioner were caught unprepared and ill equipped to deal with the complexity and volume of those requests.  Even the biggest businesses scrambled to respond to those requests appropriately, on time and in sufficient detail for the Commissioner. Those who provided inadequate or incomplete responses, or who sought extensions, were the subject of criticism.

The lesson from the Financial Services Royal Commission is don’t delay. Act now.

What will the Government ask the Commission to inquire into?

To date, the Government has only identified a list of topics that the Commission will deal with.

They are quite broad. They include:

1. quality of care;

Quality of care

The inclusion of quality of care makes it clear that the Commission will delve into instances of abuse and neglect.

Almost certainly, the Commission’s work will reveal information that is deeply distressing and which falls well short of community standards and expectations.

When the Commission does look at such instances, it will do so with a view to working out:

1. What caused or contributed to the abuse or neglect occurring
2. What the response of business and regulatory agencies was to the abuse or neglect
3. What that response gave rise to
4. What the response should have been, and
5. What need to change to ensure that those outcomes are not repeated and more appropriately responded to.

The depth and range of instances that the Commission will look at will be highly dependant on the time that the Government gives the Commission to undertake its work.

The modern trend is for Commissions to be given very limited time-frames. That is likely to be the case here. If that is what eventuates, it will mean that the Commission will be forced to focus its inquiries. That, in turn, will mean that the highest and best cases of abuse and neglect, and which throw up all of the above-mentioned issues, will be identified in a deep dive.

If your business has had a significant incident, or series of incidents, involving allegations of abuse or neglect of patients in care, you should expect the Commission to come knocking on your door.

Other topics

The Government’s list of topics also makes it clear that the Commission also look at a wide range of industry, regulatory, organizational, operational and structural issues. Some such issues will include:

1. staff to patient ratios
2. staffing mix ratios
3. food and nutrition practices
4. access to medical and allied health care services while in care;
5. availability of appropriate care (including for high-care youth, indigenous communities, rural communities and LGBTI communities);
6. barriers to accessing appropriate care;
7. business models and practices (profit and not for profit, including contractual terms of service with patients/residents, and other care providers);
8. corporate governance and risk management frameworks; and
9. appropriateness of regulatory and disciplinary frameworks, systems and practices.

The breadth of the topics to be considered by the Commission indicates that very few in the industry will likely be immune from the Commission’s gaze.

Large corporates, small corporates, not for profits, religious and other providers of retirement and aged care facilities and services – both city and country – are likely to be touched by the Commission’s work.

Commission’s powers

The Commission will have broad and wide-ranging powers to facilitate its work.

This includes the power to compel persons to give evidence and to produce documents.

The Royal Commissions Act 1902 (Cth) makes it an offence to fail or refuse to produce a document to the Commission when requested to do so under a summons or notice without a “reasonable excuse”. Each offence is punishable by a fine of $1,000 or imprisonment for up to 6 months.

The Commission will also likely have other important powers.

The Commission will likely be empowered to make recommendations that persons or entities be referred to relevant regulatory authorities, professional disciplinary authorities, or the police, for investigation, disciplinary proceedings and/or prosecution.

Commissions are often given such powers – and it seems sensible for that to occur here where the Commission is to be charged with looking at, among other things, abuse and neglect.

5 steps you should consider taking in the next 1-2 weeks

If your business is likely to be involved in the Commission, here’s 5 steps that you should consider taking in the next 1-2 weeks:

1. Organise your legal team. Don’t wait until you get a request or notice from the Commission. You may not get much time to respond, and the legal team you want may have been snapped up already.
2. Prepare a plan, with your legal team, of issues and topics (including relevant incidents) relevant to your business and which might be of interest to the Commission or which might be brought to the Commission’s attention.
3. Assess the readiness of your business to respond quickly and put plans in place to ensure that you have sufficient resources to respond to Commission requests, that you know where relevant data might be contained (on PCs, phones, servers, etc), and how you plan to extract those documents and information from those sources.
4. Consider setting up ‘response teams’ within your business who will be tasked with the coordination of your response to the Commission. Ensure that this team is appropriately resourced and supported, including having clear decision and reporting lines.
5. Evaluate your business’s insurance position.

The clear imperative is to act. Don’t delay.