By Louise Cantrill, Partner

1. Background

1. The Terms of Reference for the Royal Commission in to Aged Care Quality and Safety (‘the Aged Care Royal Commission’) were assented to on 6 December 2018 and no doubt insurers and insureds alike are by now familiar with them.
2. Recently, a draft Terms of Reference was published with respect to a proposed Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (‘the Disability Royal Commission’).
3. As many insureds operate in the spheres of both aged care provision and disability services, insurers can expect further claims arising from requests or mandatory notices emanating from the Disability Royal Commission once established.
4. A comparison of the respective Terms of Reference for the two Royal Commission may therefore be of interest.

2. Preambles

1. The Aged Care Royal Commission preamble is more general than that for the Disability Royal Commission. It recognised the contribution of the increasing population of older people to Australian society, and that they are deserving of high quality aged care services.
2. The preamble to the draft Terms of Reference for the Disability Royal Commission more specifically emphasises mistreatment. It acknowledges that people with disability have a right to respect for their worth and dignity and to fulfil their potential as equal citizens, and to do in safe environments free from violence, abuse, neglect and exploitation.

3. The Terms of Reference

1. In summary, the Aged Care Royal Commission is charged with:
   1. Enquiring into the current state of the quality of aged care services, including the extent of substandard care (including abuse and mistreatment);
   2. Advising how best to deliver services to people with disability, including younger people, and dementia within aged care facilities;
   3. Identifying future challenges to, and opportunities for, ensuring the delivery of high quality care in the future, including issues of economic sustainability;
2. In summary, the draft Disability Royal Commission Terms of Reference (if adopted) will charge the Commission to:
   1. Enquire into the current extent of mistreatment people with disability are exposed to and advise with respect to what the government, institutions and the community can do to prevent mistreatment;
   2. Advise on strategies to improve the reporting of, and effective responses to, instances of mistreatment experienced by people with disabilities;
   3. Advise on strategies to improve the community’s support of the independence of people with disability and their right to live their lives free from violence, abuse, neglect and exploitation.

4. General overlays

1. Both Terms of Reference cover people with disability, but the Aged Care Royal Commission has a much narrower focus in this respect. It is limited to enquiries regarding only those people with disability, especially dementia, living within aged care facilities. Further, its emphasis is on the provision of adequate and sustainable care, although it is authorised to investigate any mistreatment of people with disabilities living in aged care facilities.
2. The draft Disability Royal Commission Terms of Reference are far more broad with respect to people living with disability and are silent with respect to people living with disability within aged care facilities. It is likely, however, that the scope of its draft Terms of Reference could be interpreted so as to cover mistreatment of people with disability living in aged care facilities also.
3. Both Terms of Reference emphasise the recognition of the rights to independence and free will and the dignity of the individual, and a need to improve affected people’s lives.

5. Evidence gathering and community engagement

1. The respective Terms of Reference are very similar regarding the objects of, and procedure for, gathering information and consulting with the community. In summary, they both require that the respective Royal Commissions to:
   1. Establish accessible and appropriate arrangements for affected people and their families, carers and others, to engage with the Royal Commission, and to provide evidence and information about their experiences;
   2. Establish mechanisms to facilitate the timely communication of information, or the furnishing of evidence, for the purpose of enabling the timely investigation and prosecution of offences;
   3. Ensure that evidence that may be received is dealt with in a way that does not prejudice current or future criminal or civil proceedings or other contemporaneous inquiries; and
   4. Establish appropriate arrangements with current and previous inquiries for sharing evidence and information as and when appropriate.

6. Conclusion

1. Given that the procedural and substantive objectives of the respective Terms of Reference are so similar, insurers might expect that the Disability Royal Commission will adopt the preliminary information gathering process undertaken by the Aged Care Royal Commission. That Commission invited aged care providers to furnish extensive information about instances of, and complaints about, substandard care, and make submissions on specified matters of interest to the Commission. It subsequently became apparent that the Commission viewed that “invitation” as a near mandatory directive.
2. We have developed templates and provided ongoing advice and support to assist aged care provider insureds complete this sometimes onerous task in the tight timeframe allowed. We have also prepared advice and documents to assist insureds in anticipation of the Aged Care Royal Commission issuing Notices to Produce documents and Notices to Attend the Commission to insureds.
3. We are therefore well placed and prepared to similarly assist disability support service provider insureds when the Disability Royal Commission commences.