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An update on the Royal Commission into Aged Care Quality and Safety

The Royal Commission into Aged Care Quality and Safety held its first public hearing on Friday 18 January 2018 in Adelaide. This was a ‘Directions Hearing’ designed to outline details regarding the conduct of the Inquiry.

This special edition of The Advocate seeks to provide a brief update on matters discussed at this hearing.

What to expect from the Royal Commission into Aged Care Quality and Safety

The Royal Commission’s scope is broad. It will look at issues across both residential and community care, including mistreatment and abuse. It will consider the provision of care across urban, regional and rural areas.  It will consider, among other things, young people with disabilities residing in aged care facilities, how best to deliver aged care services to people living with dementia, sub-standard care and causes of systemic failures. The Royal Commission will report on what actions ought to be implemented in order to address and avoid repetition of identified shortcomings.

Commissioner Tracey explained that the Royal Commission will not inquire into matters that the Commissioners are satisfied have been, are being, or will be sufficiently dealt with by another investigation or criminal or civil proceeding. However, the Royal Commission will examine changes and developments implemented following previous inquiries, as well as the extent to which recommendations have been implemented.

Commissioner Tracey also noted that the regulatory framework for aged care has altered with the establishment of the Aged Care Quality and Safety Commission on 1 January 2019, with further changes planned. The Royal Commission acknowledges that historical issues occurred in the context of a previous regulatory framework, and will follow the progress of the implementation of the new regulatory regime in order to form a judgement as to its effectiveness.

Commissioner Briggs stressed that the timeframe for the Royal Commission is short, with an interim report due by 31 October 2019 and a final report by 30 April 2020. Commissioner Briggs explained that some of the Royal Commission’s requests for information have, to date, included short time frames, including over the holiday period. Aged care providers were put on notice by the Commission that short timeframes for the provision of information will be a “normal part of the Commission” in order to meet the timeframe for the interim and final reports.

There will be a series of public hearings conducted around the country, including in some regional locations. Some private hearings will also be conducted, particularly where witnesses may be vulnerable or frail. While some hearings will be geographically based, it is expected that some hearings will focus on a single subject or issue.

Making submissions

The Royal Commission has already begun gathering and analysing information. It has requested information from approved care providers, and established an enquiries line and the ability for the public to make submissions.

The Royal Commission wants to hear from members of the public about their access to aged care services, whether or not it meets their needs, and the safety and quality of those services.

Submissions are now being welcomed from anyone with information or documents relevant to the Terms of Reference. This includes aged care facility operators, their residents and their families, aged care workers, unions and industry bodies.

Submissions may be published on the Royal Commission’s website, although individuals may request that their submissions be published anonymously or not at all.

Since 24 December 2018, 300 submissions have been received through the public portal and 81% of these are about substandard or unsafe care in residential care, of which 54% are about staffing levels and 59% about staffing ratios.

The Commission noted that examples of good care had also been received.

The Royal Commission’s powers

The Royal Commission has extensive powers of compulsion, and may, if necessary, exercise those powers. Commissioner Tracey reiterated that confidentiality obligations do not excuse production, or answers to questions. He also said that the Royal Commission would be ‘gravely concerned’ if people were instructed not to talk to the Royal Commission, or to withhold information.

It was noted that it is unlawful for an employer to take punitive action against a current or former employer because of their involvement in the Royal Commission, and that even merely deterring participation may give rise to an offence.

Senior Counsel Assisting Peter Gray QC also explained that the Royal Commission has new powers to require a witness to provide a statement in writing. This Royal Commission will be the first to exercise that power.

Mr Gray explained that people can contact the Royal Commission by website, email or telephone, whether experiences are bad or good. The aged care workforce was identified as particularly important to the Royal Commission process. Some submissions have already been received, and trends and themes are already being identified.

Guidance material released

The Royal Commission has released five Practice Guidelines to assist parties, witnesses and members of the public understand how the Royal Commission will be conducted (available here). They address:

  • General Guidance;
  • Legal Professional Privilege;
  • Leave to Appear and Witnesses;
  • Non-publication of contact and identifying information; and
  • Expert Reports, Witness Statements and Post-Hearing Submissions.

Next steps

The next hearing will open on 11 February 2019 in Adelaide and continue into the week of 18 February 2019.  The hearing will explore issues of quality, safety and complaints, how the system works at a general level and challenges faced in the system, how the system was monitored and regulated prior to January 2019, and how it will be monitored after January 2019. During this period, the Commission anticipates hearing evidence from witnesses from:

  • Direct care recipient(s);
  • Advocacy groups;
  • Provider peak bodies;
  • National provider peak bodies; and
  • Regulators.

A transcript of the hearing has been published on the Commission’s website and a recording of the webcast will also be available.

Details of future hearings will be published on the Commission’s website.