The Commonwealth Parliament passed the Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019 (Cth) (Bill) in the last sitting week, which will amend the Aged Care Act 1997 (Cth) (Aged Care Act), Aged Care Quality and Safety Commission Act 2018 (Cth) (Commission Act) and other related laws, which are expected to commence from 1 January 2020.

Second stage of reforms following the Carnell-Paterson Review

Providers will recall these amendments complete a two-year legislative reform agenda as part of the Government’s response to the Review of the National Aged Care Quality Regulatory Processes  in 2017 (the Carnell-Paterson Review).

The Carnell-Paterson Review was critical of what it saw as a fragmented system of shared responsibilities and regulatory oversight among the Department of Health and other statutory agencies and commissions operating at the time (namely the Aged Care Quality Agency and the Aged Care Complaints Commissioner).

One of the key recommendations was to centralise accreditation, compliance and complaints handling functions under a single statutory body. The first stage occurred on 1 January this year with the establishment of the Aged Care Quality and Safety Commission (Commission) and appointment of Ms Janet Anderson as Commissioner. The second stage, which we explain below, is due to commence on 1 January 2020.

Transfer of certain regulatory functions and powers from the Department to the Commission

The primary purpose of the Bill is to transfer core regulatory functions and powers from the Department of Health (Department) to the Commission, including transferring:

  • the function to consider applications under the Aged Care Act for approval to provide residential aged care, home care and flexible care;
  • the power to make decisions to revoke an organisation’s approved provider status and to impose sanctions, along with transferring the formal reconsideration or ‘review’ of such decisions from the Aged Care Act to the Commission Act; and
  • compliance and enforcement powers, for example to enter premises with consent or under warrant, including the ability to use force.

The Bill also provides for various consequential amendments and details new administrative processes, particularly as they relate to administering and enforcing compliance.  We will provide more information on this after the legislation commences.

An update on sanctions

Under the existing framework, evidence and information is collected by the Commission and presented to the Department.  A delegate of the Secretary of the Department then makes a decision, such as to impose sanctions, based primarily on the information supplied to the Department by the Commission.

From 1 January 2020, the power to impose sanctions will sit with the Commission.

The two pathways to imposition of sanctions will remain the same, namely:

  • If the Commission determines there is an ‘immediate and severe risk to the safety, health and wellbeing of care recipients’ then the Commissioner may impose a sanction before the provider has an opportunity to respond.
  • Conversely, if there is evidence of non-compliance, but the Commissioner determines there is not an ‘immediate and severe risk to the safety, health and wellbeing of care recipients’, then the Commissioner must notify the approved provider of their intention to impose a sanction first and the provider has an opportunity to respond prior to a decision being made.

The Department will no longer be involved in this process.

Reporting ‘reportable assaults’ to the Commission and police

Approved providers will be required to report suspicions or allegations of reportable assaults on residents to the police and the Commission, rather than the police and the Secretary of the Department (as required under the current framework).

All providers will need to update their compulsory reporting frameworks (eg policies, procedures and registers) from 1 January 2020 to refer to the requirement to report to the Commission rather than the Department.

Significant reforms to aged care are on the horizon

The amendments contemplated by the Bill complete the second stage of the Government’s aged care legislative reform agenda, following the issues identified in the Carnell-Paterson Review.

However, the Interim Report of the Royal Commission into Aged Care Quality and Safety has clearly foreshadowed that the Royal Commission ‘will recommend comprehensive reform and major transformation of the aged care system in Australia’.  

Once in effect, the revised legislative and regulatory framework as contemplated by the Bill will form the basis upon which the Royal Commission will make its recommendations for transformative change to the aged care system in Australia.

We will update providers further once the legislation commences and information becomes available about the Commission’s approach to its expanded powers.

If you would like to discuss any aspect of this article and/or would like us to provide advice, please contact a member of Thomson Geer's Health, Aged Care and Retirement Villages team.

Lucinda Smith | Partner | NSW | +61 2 9020 5748 | [email protected]

Richard Hundt | Senior Associate | QLD | +61 7 3338 7957 | [email protected]