The Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Bill (SIRS) is proposed to commence on 1 April 2021. The Bill implements key recommendations proposed by the Australian Law Reform Commission’s report on elder abuse.
From 1 April 2021, subject to the Bill being passed by Parliament, residential aged care providers must report all “Priority 1” incidents within 24 hours. “Priority 2” incidents have to be reported within 30 days however that requirement will not commence until October 2021.
Incident Management and Reporting
Aged care providers must manage incidents and take reasonable steps to prevent incidents, including through implementing and maintaining an incident management system that complies with the Quality of Care Principles.
Providers must report ‘reportable incidents’ to the Quality and Safety Commission (the Commission) via the My Aged Care portal. Reportable incidents include unreasonable use of force, emotional abuse, neglect, unexplained absences and use of physical or chemical restraint (other than as set out in Quality of Care Principles).
The Commission may require providers to take action in relation to a reportable incident which may include requiring the Approved Provider to conduct, at the cost of the approved provider, an independent investigation and provide a copy of the independent investigation report to the Commissioner. The Approved Provider may also have to provide a resident with information regarding the use of an advocate in relation to the reportable incident.
Removal of exemption
Importantly, the exemption for reporting assaults where the alleged perpetrator is a residential aged care recipient with a cognitive or mental impairment and the victim is another care recipient will no longer exist.
Priority 1 and 2 incidents
A two-stage reporting process will be required for all Priority 1 incidents (those resulting in physical/psychological injury requiring onsite medical/psychological treatment or more significant treatment). The first stage requires providers to notify the Commission within 24 hours of becoming aware of the reportable incident. If it is a criminal matter, then the provider must make a report for the police. The second stage requires providers to submit an incident status report to the Commission within 5 business days.
From 1 October 2021, providers will be required to report Priority 2 incidents (ie not priority 1 incidents) within 30 days. Until these reporting requirements commence, providers must still keep records of these incidents.
Strengthened disclosure protections
The Bill has put in place strengthened protections for those who disclose incidents of abuse or neglect to the Commission by protecting existing and former staff member as well as current and past residential aged care recipients, their family and others against civil or criminal liability.
Providers must ensure staff member informants are not victimised and must protect the informant’s identity except to the Commission, police officer or key personnel. Disclosure protections extends to reportable incidents if the discloser suspects that the incident has occurred from 1 January 2020.
What this means for Approved Providers
Approved Providers have a responsibility to comply with these requirements and therefore should:
- ensure they have organisation wide systems in place to identify, record, manage and resolve and report serious incidents;
- revisit their incident management policy and procedure;
- revisit their reportable and non-reportable assault policy and procedure;
- monitor and seek feedback regarding incident management;
- undertake regular self-assessments regarding incident management and risk management;
- ensure their staff receive comprehensive training in the new requirements.
Approved Providers will need to update their current reportable assault policy and procedure to comply with the new SIRS requirements to include provisions that:
- identify, assess, record, manage and resolve all incidents;
- report alleged, suspected and actual serious incidents to the Commission;
- report incidents to police where necessary and notify families and decision makers as required;
- plan and provide the support and assistance to consumers affected by an incident (including those subject to allegations) to ensure the consumer’s health, safety and well-being;
- engage a consumer and others affected by an incident in the management and resolution of the incident, in line with open disclosure principles;
- conduct an investigation or contribute to an external investigation;
- implement and monitor corrective actions taken; and
- use incident data to drive continuous improvement and prevent similar incidents from reoccurring.
Thomson Geer has developed a new SIRS policy and Procedure that will be compliant with the requirements for providers.
Authors
Julie McStay | Partner | +61 7 3338 7522 | [email protected]
Madeline Walsh | Partner | +61 7 3338 7906 | [email protected]