By Darren James, Partner

Information requests issued

In late November and early December 2018, the Aged Care Quality & Safety Royal Commission (Commission) wrote to all approved providers of aged care services under the Aged Care Act 1997 (Cth).

The Commission asked each of these providers, for every residential care service and every outlet from which they deliver or coordinate home care services to, among other things, to voluntarily disclose and provide comprehensive details, for the five year period starting 1 July 2013, every:

1. occasion on which they had provided ‘substandard care’ to a care recipient; and
2. complaint, whether formal or informal, received by or made about them in relation to ‘substandard care’.

‘Substandard care’ was given a broad definition, relevantly including, care which fell short of the high standards of quality and safety that the Australian community expects of aged care services.

Providers were also asked to specify which areas of care were involved in each of the occasions and complaints concerned, and to provide information about a variety of other issues.

The Commission issued just under 1,900 of these information requests in late 2018.

The largest 100 providers’ responses were due 7 January 2019, and the remaining, smaller providers’ responses, were due 8 February 2019.

Response statistics revealed

The first hearing of the Commission held after the due date for all responses had passed, was on Monday 11 February 2019.

At the beginning of that hearing, Counsel Assisting, Peter Gray QC, made an initial address.

What emerged was surprising.

While over 900 responses had been received from providers, that figure represented a rough provider response rate of only about 50%. Furthermore, only 79 of the 100 largest providers had responded to the Commission’s information requests.

Providers who do not respond “draw attention to themselves and their practices”, and “will be subjected to careful scrutiny” by the Commission

This was not the first time, however, that issues associated with low provider response rates to the Commission’s information requests had been flagged during a Commission hearing.

The very first Commission hearing took place on 18 January 2019 – 11 days after the largest 100 providers were meant to have provided the Commission with their responses to the Commission’s information requests.

At that hearing, Commissioner Briggs stated that:

“It has been our hope that providers would and will continue to assist us. Inevitably, providers who do not engage with our requests draw attention to themselves and to their practices.”

It might have been thought that this indication would have spurred providers – large and small alike – into action.

But according to the data shared by Counsel Assisting at the 11 February 2019 hearing, between 18 January 2019 and 11 February 2019, the number of responses from the large 100 providers remained stuck at about 79, and of the remaining 1800 or so smaller providers whose responses were due 8 February 2019, it seems that only around 820 had in fact sent in their responses.

Given this, it came as no surprise that during the hearing on Monday 11 February 2019, Counsel Assisting took the opportunity to repeat the caution previously issued by Commissioner Briggs.

Counsel Assisting said this:

“We will follow up the providers who have not responded to the request to ensure it has been received and has been receiving proper attention. As Commissioner Briggs noted previously, providers who do not engage with our requests draw attention to themselves and to their practices. They will be subject to careful scrutiny.”

What’s going to happen next?

The indications given by Commissioner Briggs and again by Counsel Assisting, are telling.

It is expected that the Commission will write this week or next week to those providers who have not yet submitted their responses. They will be given a further opportunity to submit their responses – most likely, again voluntarily.

Those providers who do not take up this further opportunity – for whatever reason – are likely to be subjected to further steps.

Precisely what those further steps will be, is not yet known.

However, the repeated references to the dual consequences of “drawing attention to themselves” and “being subject to careful scrutiny” at Commission hearings, might be said to be strong pointers to some particular courses. This might include, being compelled by the Commission:

1. to provide their response to the Commission (with the attendant risk of prosecution for further non-response);
2. to produce source documents to the Commission (potentially, a hugely onerous exercise, again with the attendant risk of prosecution for further non-response); and/or
3. to attend to be questioned by Counsel Assisting the Commission at a public hearing of the Commission (a notice requiring such an attendance is most likely to be sent to those within the provider bearing the ultimate responsibility for not responding – such as Board Chair, Managing Director or CEO).

What to do if you are an approved provider and you have not responded to the Commission’s information request

If you are an aged care provider who has received a request for information from the Commission and you have not yet responded to it yet, you should immediately:

1. Assemble a well-resourced team to assist in the preparation of your response. Your response will likely take up much more time and resources than you think – so build in more capability than you anticipate needing.
2. Identify and retrieve the records that you will need to review to properly prepare your response/s, and start reviewing them. You will likely need to look at more than you first anticipate – so don’t underestimate what will be necessary.
3. Notify your insurer that you have received a request from the Commission to provide information and ascertain what, if any, insurance coverage that responds to that.
4. Engage a lawyer to provide you with legal advice and assistance in connection with the preparation of your response/s.

This article is of a general, informational nature. It does not constitute legal or professional advice by the author or by Mills Oakley, and must not be relied on as such.