CTH Bill to Establish Serious Incident Response Scheme for Aged Care
Thursday 3 December 2020 @ 11.41 a.m. | Legal Research
On 2 December 2020, the Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Bill 2020 (Cth) (‘the Bill’) was introduced to the House of Representatives. The purpose of the Bill is to introduce a Serious Incident Response Scheme (SIRS) for residential aged care and flexible care delivered in a residential aged care setting.
What is the Serious Incident Response Scheme?
The SIRS implements several recommendations outlined in the Australian Law Reform Commission’s report on elder abuse. The SIRS will replace existing arrangements relating to reportable assaults. In his Second Reading Speech, Mr Daniel Tehan, the Minister for Education, stated:
The scheme will provide greater protections for older Australians by taking into account broader instances of abuse and neglect, by introducing more robust requirements for residential aged-care providers to respond and report, and by providing the Aged Care Quality and Safety Commission with more functions and powers.
What is considered a ‘reportable incident’?
The Bill’s definition of reportable incidents include any of the following that have occurred or are alleged or suspected to have occurred in the course of providing residential care, or flexible care provided in a residential setting, to a residential care recipient of an approved provider:
- unreasonable use of force;
- unlawful sexual contact or inappropriate sexual conduct;
- psychological or emotional abuse;
- unexpected death;
- stealing or financial coercion by a staff member of the provider;
- use of physical restraint or chemical restraint, other than in circumstances set out in the Quality of Care Principles;
- neglect; or
- unexplained absence from the residential care services of the provider
How does the reporting process work?
The Bill amends the Aged Care Act 1997 to require residential aged care providers to ‘manage incidents and take reasonable steps to prevent incidents’ by implementing an incident management system that complies with the Quality of Care Principles. This includes reporting to the Aged Care Quality and Safety Commission (‘the Commission’).
According to the Second Reading Speech, incident reporting to the Commission will be implemented in two phases.
The first phase, which is to be implemented in April 2021, will involve a two-stage reporting process for all critical reportable incidents. Critical reportable incidents involve physical or psychological injury or illness requiring onsite medical or psychological treatment or more significant treatment. Within 24 hours of becoming aware of an incident, residential aged care providers will be required to notify the Commission and the police if the incident is criminal in nature. The second stage requires an incident status report provided to the Commission which may include information absent from the first notification such as remedial action taken subsequent to the incident.
The second phase, which is to be implemented later in 2021, will require all other serious incidents to be reported within 30 days. Until the commencement of the second phase of reporting, providers will be required to maintain records of these incidents.
How will reports be dealt with?
According to the Second Reading Speech:
"The Aged Care Quality and Safety Commission will be responsible for administering the scheme, using its existing monitoring and regulatory powers. Once the commission receives reports about serious incidents, it will apply risk-based monitoring of how aged-care providers investigate and respond to serious incidents. In instances where the responses are inadequate, the commission may require further action, such as an independent investigation."
Furthermore, the Bill amends the Aged Care Quality and Safety Commission Act 2018 allowing rules to make provisions for how the Commissioner deals with reportable incidents including:
- actions the Commissioner may take in dealing with an incident,
- circumstances in which the Commissioner may authorise an inquiry into a reportable incident, and
- the manner in which information regarding a reportable incident is given to the Commissioner.
Will there be protections for disclosure?
The Bill identifies certain criteria and categories that allow persons who disclose information regarding reportable incidents to qualify for protection. These can include staff members, a residential care recipient, family member, advocate and volunteer. The disclosure must be made to the appropriate person (such as the approved provider, the Commissioner, the police). Further, the discloser must provide their name to the person to whom the disclosure is made, have reasonable grounds to suspect that the information indicates a reportable incident has occurred, and the discloser acts in good faith. Should a person qualify under the protections provisions, they cannot be subject to ‘any civil or criminal liability for making the disclosure, and no contractual or other remedy may be enforced or exercised against the person on the basis of the disclosure’.
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Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Bill 2020 (Cth) and explanatory materials available from TimeBase's LawOne service