This article applies to all ‘approved providers’ of Commonwealth funded aged care services.
Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Act 2021 (Cth)
Aged Care Legislation Amendment (Serious Incident Response Scheme) Instrument 2021 (Cth)
On 1 April 2021, relevant parts of the Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Act 2021 (Cth) (the Amending Act) will amend the Aged Care Act 1997 (Cth) (the Act).
To coincide with that amendment, on 1 April 2021 the Aged Care Legislation Amendment (Serious Incident Response Scheme) Instrument 2021 (Cth) (the Instrument) will also amend the Quality of Care Principles 2014 (Cth) (the Principles).
In addition, the Instrument will make consequential amendments to the Accountability Principles 2014 (Cth) and the Records Principles 2014 (Cth).
New Serious Incident Response Scheme
In response to the key recommendations issued by the Australian Law Reform Commission’s report on elder abuse, the Amending Act and the Instrument will introduce a new Serious Incident Response Scheme (SIRS).
The purpose of the new SIRS is to enable approved providers to better respond to and address the incidence of abuse and neglect of older Australians residing in residential aged care, including flexible care delivered in a residential aged care setting. As a result, the new SIRS will apply to approved providers providing residential care or flexible care in a residential aged care setting (approved providers).
The new SIRS will replace approved providers’ current responsibilities under the Act in relation to reportable assaults and unexplained absences (current regime).
The key aspects of the new SIRS are discussed in further detail below.
Incident management and prevention
From 1 April 2021, new requirements for approved providers in managing and preventing incidents will take effect. These new requirements are intended to result in continuous improvement of services by preventing future avoidable incidents.
In accordance with new section 15LA of the Principles, management of incidents must be focused on the safety, health, wellbeing and quality of life of residential care recipients. Importantly, new section 15LA provides that if there are reasonable grounds to report an incident to police, the approved provider must notify a police officer of the incident within 24 hours of becoming aware of the incident. Moreover, if an approved provider later becomes aware of reasonable grounds to report the incident to police, the provider is required to notify a police officer of the incident within 24 hours of becoming aware of those grounds.
Approved providers should also be aware that new section 15LB will require approved providers to collect data relating to incidents that will enable them to continuously improve their management and prevention of incidents. In addition, approved providers will be required to regularly analyse and review the data relating to incidents collected, to assess the effectiveness of their management and prevention of incidents, and what (if any), actions can be taken to improve the management and prevention of incidents. Approved providers will also be responsible for taking any action identified, to ensure the improvement of their management of incidents.
Incident management system requirements
From 1 April 2021 approved providers will be required to manage incidents and take reasonable steps to prevent incidents through implementing and maintaining an incident management system that complies with the Principles. In short, it is the approved provider’s incident management system which underpins the new SIRS.
The newly introduced section 15MB of the Principles provides that the incident management system must establish procedures to be followed in identifying, managing and resolving incidents (for example how incidents are to be identified, recorded and reported, and specifying to whom incidents must be reported to). In addition, new section 15MC of the Principles requires that at a minimum, the incident management system must enable approved providers to record certain details in relation to each incident. These incident records are required to be retained for a period of 7 years after the incident was identified. In addition, approved providers should be aware that their incident management system must set out the roles and responsibilities of staff members in identifying, managing and resolving incidents and in preventing incidents from occurring.
From 1 April, approved providers will be required to report reportable incidents to the Aged Care Quality and Safety Commission (Commission) via the My Aged Care Portal. A reportable incident is defined as incidents that have actually occurred (or are alleged or are suspected to have occurred) and includes:
- unreasonable use of force against the residential care recipient;
- unlawful sexual contact, or inappropriate sexual conduct, inflicted on the residential care recipient;
- psychological or emotional abuse of the residential care recipient;
- unexpected death of the residential care recipient;
- stealing from, or financial coercion of, the residential care recipient by a *staff member of the provider;
- neglect of the residential care recipient;
- use of physical restraint or chemical restraint in relation to the residential care recipient (other than in circumstances set out in the Principles);
- unexplained absence of the residential care recipient from the residential care services of the approved provider.
Importantly, as the new SIRS will cover incidents that have occurred (or are alleged or suspected to have occurred), the new SIRS is broader than the current regime. Approved providers should also note that under the new SIRS, the existing exemption for reporting assaults where the alleged perpetrator is a residential care recipient with an assessed cognitive or mental impairment and the victim is another residential care recipient, will be removed.
Priority 1 reportable incidents
While the new SIRS will commence on 1 April 2021, mandatory reporting will have a phased in implementation.
From 1 April 2021, a 2 stage reporting process is required for all priority 1 reportable incidents. Priority 1 reportable incidents are those reportable incidents that result in (or could reasonably result in), physical or psychological injury or discomfort requiring medical or psychological treatment. Under the first stage, approved providers will be required to notify the Commission within 24 hours of becoming aware of the Priority 1 reportable incident. Under the second stage, the approved provider is required to give the Commission a notice, within 5 days after the start of the 24 hours, (or within a different period that the Commission determines). The notice must include any of the information required in the initial notice that was not known at that time, along with any further information required by the Commission.
Priority 2 reportable incidents
From 1 October 2021, approved providers will be required to report Priority 2 reportable incidents within 30 days of becoming aware of the reportable incident. Priority 2 incidents are those reportable incidents that do not meet the criteria for ‘Priority 1 incidents. We note that the explanatory memorandum for the Instrument provides that Priority 2 reportable incidents would be categorised as incidents where there is low or no impact on the victim. Priority 2 incidents involve a single notification only.
Strengthened whistleblower protections for disclosures of serious incidents
Approved providers should be aware that the Amending Act has amended the Act to strengthen the ‘whistleblower’ protections offered to those individuals who report serious incidents under the Act. More specifically, those protections now include:
- protection from civil and criminal liability;
- qualified privilege in any proceedings for defamation;
- protection from liability to an action for defamation;
- protection from someone enforcing a contractual or other remedy against the person based on the disclosure.
Importantly, in order for a person’s disclosure to qualify for the above protections, the disclosure must meet the following requirements:
- the disclosure must be made to any of the following parties (being: the approved provider, one of the approved provider’s key personnel, a staff member of the approved provider, another person authorised by the approved provider to receive reports of reportable incidents, a police officer or the Commission);
- prior to making the disclosure, the person disclosing the information must give their name to the person to whom the disclosure is made;
- the discloser must have reasonable grounds to suspect that the information indicates that a reportable incident has occurred, and
- the disclosure must be made in good faith.
Approved providers should also note that under the Act, any person who makes a disclosure is also protected from victimisation. New section 54-6 of the Act creates a civil penalty of 500 penalty units ($111,000) for victimisation. A person contravenes this new provision if they cause detriment to another or they threaten to cause detriment. We note that if someone is found to have contravened section 54-6, and a person has suffered damage as a result, under section 54-7 of the Act that person can then receive compensation, in addition to any penalty imposed.
It is also important to note that the Amending Act has introduced some transitional arrangements to the Act. These arrangements specify that reportable incidents occurring on or after 1 April 2021 must be reported in accordance with the new SIRS. Moreover, the expanded protections for individuals who disclose information about reportable incidents (as discussed above) will also apply. The transitional arrangements provide that if a person has reasonable grounds to believe a reportable incident occurred on or after 1 January 2020 and the person discloses that information, the strengthened protections will also apply in relation to that disclosure.
Penalties for non-compliance with the SIRS
Finally, it is important to note that the Commission will be responsible for administering the SIRS and will be empowered to take regulatory action to address non-compliance by approved providers. More specifically, the Commissioner will be empowered to issue compliance notices to approved providers for non-compliance with SIRS obligations.
Organisations who are approved providers involved in the provision of residential aged care, including flexible care delivered in a residential aged care setting should ensure their reporting processes and procedures align with the new requirements of the SIRS.
In particular, organisations should ensure their incident management system, and incident management policies and procedures comply with the new requirements. Moreover, organisations should ensure relevant staff receive training in relation to the new requirements of the SIRS.
To assist organisations to meet the new requirements of the SIRS, we note that the Commission has released a guidance document entitled ‘Serious Incident Response Scheme – Guidelines for residential aged care providers’ (published in March 2021), which is available for download on the website of the Commission at www.agedcarequality.gov.au > resources > serious-incident-response-scheme-guidelines-residential-aged-care-providers.
For further information please contact the Law Compliance team:
Phone: 1300 862 667