Accountability Amendment Principles 2006 (No. 1)

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Ageing

Aged Care Act 1997

Accountability Amendment Principles 2006 (No. 1)

The Aged Care Act 1997 (the Act) provides for the funding of aged care services.

Subsection 96-1(1) of the Act allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act. 

The Accountability Principles 1998 (the Accountability Principles) are one of the sets of Principles made under the Act.

The purpose of the Accountability Amendment Principles 2006 (No. 1) (the Amending Principles) is to achieve the objectives detailed below.  The Amending Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Accountability Amendment Principles 2006 (No. 1) 

Background

As part of the 2006-07 Budget, the Government announced that operators of aged care services which are subsidised by the Australian Government under the Act will require that staff employed by them, or engaged through an employment agency, and certain volunteers have police certificates (commonly known as police checks). 

The main purpose of these Amending Principles is to detail these new requirements.

In summary:

• from 1 March 2007, all new staff members and volunteers will be required to have a police certificate that is not more than three years old.  In addition, if the person has, since the age of 16, been a permanent resident or citizen of another country, the person must also provide a statutory declaration stating whether they have been convicted of murder or sexual assault, or convicted of, and sentenced to imprisonment for, any other form of assault;
• if either the police certificate or the statutory declaration shows that the person has been convicted of murder or sexual assault, or convicted of, and sentenced to imprisonment for, any other form of assault then the approved provider must not allow the person to become a staff member or volunteer;
• if a new staff member or volunteer has applied for a police certificate but has not yet been provided with the police certificate, the person will only be able to work in aged care if:

      the services being provided by the person are essential;

      the person only has supervised access to care recipients; and

      the person has made a statutory declaration stating that they have never been convicted of murder or sexual assault, or convicted of, and sentenced to imprisonment for, any other form of assault; and

• all existing staff and volunteers must also comply with these new requirements. Existing staff must have submitted a request for a police certificate by 1 June 2007, and all existing volunteers must have submitted a request for a police certificate by 1 September 2007.

In addition to the amendments relating to police certificates and statutory declarations, the Amending Principles also enable quality assessors (who undertake checks of aged care services on behalf of the Aged Care Standards and Accreditation Agency) to:

• undertake unannounced visits of residential care services (spot checks); and

access a residential care service with consent from either the approved provider or a person who is on the premises and apparently in charge. This minor change recognises the difficulties that quality assessors currently have in circumstances where the approved provider is not on site to give consent to access.  The capacity to access the service with consent from the person apparently in charge, rather than the approved provider who may not be at the service at the time, also supports the capacity to undertake ‘truly’ unannounced visits.

Consultation

The proposed new arrangement concerning police checks has been the subject of consultation with the aged care sector, including peak industry and consumer bodies.

The amendments relating to unannounced visits by quality assessors has also been the subject of consultation with the residential aged care sector and the Aged Care Standards and Accreditation Agency.

 Regulation Impact Statement

The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (RIS ID 8816).

Details of the amendments to the Principles are listed at Attachment A.

ATTACHMENT A

NOTES ON CLAUSES

Clause 1 states that the name of the Principles is the Accountability Amendment Principles 2006 (No. 1).

Clause 2 states that the commencement dates are as follows:

• Sections 1 to 3 and Schedule 1 commence on the day after they are registered; and
• Schedule 2 commences on 1 March 2007.

Clause 3 states that Schedules 1 and 2 amend the Principles.

Schedule 1  Amendments commencing on the day after registration

Item 1

Section 1.7 currently describes the requirements for a representative to give notice to an approved provider if the representative requires access to a residential care service.  The same requirements apply regardless of who the representative is (representatives are defined in section 1.4 of the Principles). 

However, as described in Item 2, one of the amendments being made to the Principles is the inclusion of a new provision enabling a quality assessor (one of the types of representatives defined in the Principle) to access a residential care service without first providing notice.  This will enable quality assessors to undertake “spot checks”.   

The amendment described in item 1 is a consequential amendment that results from the inclusion of the new section 1.7B (as described in Item 2).  Item 1 amends subsection 1.7(1) by making this subsection subject to section 1.7B.

Item 2

This item inserts a new section 1.7B.

Section 1.7B (When notice of access is not required)

This section provides that a quality assessor registered for the Accreditation Grant Principles may access an approved provider’s residential care service without giving notice to the approved provider.

Item 3

This item replaces the existing heading for section 1.8 with a new heading (Consent to access service - general rule).  This change is needed because of the changes made to section 1.8 (as described at item 4) and the inclusion of the new section 1.8A (as described at item 6).

Item 4

This item amends subsection 1.8(1) so that section 1.8 only applies to representatives other than a person, acting for an accreditation body, who is a quality assessor registered for the Accreditation Grant Principles.

A representative (other than a quality assessor) must not access an approved provider’s residential care service unless the approved provider has consented to the access.

By contrast, a quality assessor may obtain consent from either the approved provider or a person who is on, and apparently in charge, of the premises (as per new section 1.8A).

Item 5

This item removes the note that currently appears at the end of section 1.8.  The note now appears at the end of section 1.8A.

Item 6

This item inserts a new section 1.8A.  In providing for this section, the capacity of the quality assessor to undertake ‘truly’ unannounced visits is strengthened.

Section 1.8A (Consent to access service — representative who is quality assessor)

This section provides that a representative who is a person acting for an accreditation body and who is a quality assessor registered for the Accreditation Grant Principles must

not access an approved provider’s residential care service without the consent of the approved provider or a person who is on, and apparently in charge of, the premises (the person in charge).

Subsections (2) to (6) mirror the provisions currently in section 1.8 of the Accountability Principles 1998 that apply when consent is obtained from an approved provider by a representative other than a quality assessor.  In particular:

• the approved provider, or person in charge, may withdraw consent at any time;
• the representative must leave the premises of the service if the approved provider or person in charge asks the representative to do so;
• before obtaining the consent of an approved provider, or person in charge, the representative must inform the approved provider or person in charge that the approved provider or person in charge may refuse to give consent or withdraw that consent at any time;
• the approved provider, or person in charge, must give consent voluntarily - access by a representative will not be lawful if the approved provider or person in charge did not voluntarily consent to the access; and
• an approved provider, or person in charge, must not unreasonably withhold consent if access to the service is required in circumstances where the representative believes, on reasonable grounds, that there is a serious risk to the safety, health or wellbeing of a person receiving care through the service.

Schedule 2   Amendments commencing on 1 March 2007

Item 1

This item inserts a new Part 4 (Requirements relating to certain staff members and volunteers) into the Accountability Principles.

Part 4 Requirements relating to certain staff members and volunteers

Division 1 Preliminary

Section 1.17 (Purpose of Part)

This section summarises the purpose of the Part. For the purposes of paragraph 63-1 (1) (m) of the Act, the responsibility of an approved provider is to ensure that:

• each staff member and volunteer has the required police certificate and, if necessary, a statutory declaration; and
• persons with certain criminal convictions do not provide aged care.

Section 1.18 (Definitions)

This section sets out terms used in the Part and the definitions for such terms.  The key terms and their definitions are police certificate, staff member and volunteer.

Police certificate

A police certificate means a report prepared by the Australian Federal Police or by the police force or police service of a State or Territory about the person’s criminal conviction record.  A police certificate is also commonly known as a “police check” or a “National Criminal History Record Check”.  Reports obtained in any of these jurisdictions will include information from all jurisdictions nationally.

A police certificate discloses evidence of whether a person:

• has been convicted of an offence;
• has been charged with, and found guilty of, an offence but discharged without conviction; or
• is the subject of any criminal charge still pending before a Court.

Police certificates from either State/Territory Police or the Australian Federal Police

reveal and record convictions across all jurisdictions in Australia.

Staff member

The Amending Principles define a staff member for the purposes of the new police certificate requirements.  A staff member of an approved provider means a person who:

• has turned 16; and
• is employed, hired, retained or contracted by the approved provider (whether directly or through an employment or recruitment agency) to provide care or other services; and
• has, or is reasonably likely to have, unsupervised access to care recipients.

Examples of persons who are staff members include:

• key personnel of the approved provider who have, or are reasonably likely to have, unsupervised access to care recipients;
• employees and contractors of the approved provider who provide care to care recipients and who have, or are reasonably likely to have, unsupervised access to care recipients;
• allied health professionals contracted by the approved provider to provide care to care recipients (who have unsupervised access to care recipients);
• kitchen, laundry, garden and office personnel employed by the approved provider (if they have, or are reasonably likely to have unsupervised access to care recipients);
• consultants, trainers and advisors for accreditation support or systems improvement who are reasonably likely to have, unsupervised access to care recipients; and
• employees and contractors of the approved provider who provide care to care recipients in the recipients’ own homes.

Examples of persons who are not staff members:

• visiting medical practitioners, pharmacists and other allied health professionals who have been requested onto the premises by, or on behalf of, a care recipient but are not contracted by the approved provider; and
• trades people and management consultants who do not have unsupervised access to care recipients.

Volunteers

The Amending Principles define volunteer, for an approved provider, to mean a person who:

• is not a staff member; and
• offers his or her services to the approved provider; and
• provides care or other services on the invitation of the approved provider and not solely on the express or implied invitation of a care recipient; and
• has, or is reasonably likely to have, unsupervised access to care recipients; and
• has turned 16 or if the person is a full-time student, has turned 18.

Examples of persons who are not volunteers under this meaning include:

• school students who are volunteering;
• persons who are expressly or impliedly invited into the aged care service by a care recipient (for example, family and friends of the care recipient, religious or cultural visitors);
• persons that volunteer in aged care services, including other residents, who may undertake tasks such as reading to care recipients but who are not alone with one care recipient.

Division 2 Responsibilities of approved providers

Section 1.19 (Conditions for all new staff members and volunteers)

This section provides that an approved provider must not allow a person to become a staff member or volunteer unless the approved provider is satisfied that:

• subject to section 1.22, there is for the person a police certificate that is dated not more than 3 years before the day on which the person first becomes a staff member or volunteer; and
• the police certificate does not record that the person has been convicted of murder or sexual assault, or convicted of, and sentenced to imprisonment for, any other form of assault.

Section 1.20 (Additional condition for certain new staff members and volunteers)

This section describes an additional requirement for a person who, at any time after the person turned 16, was a citizen or permanent resident of a country other than Australia.

An approved provider must not allow such a person to become a staff member or volunteer unless the approved provider is satisfied that, in addition to meeting the conditions in section 1.19, the person has made a statutory declaration stating that the person has never been convicted of murder or sexual assault, or convicted of, and sentenced to imprisonment for, any other form of assault.

Section 1.21 (Continuing responsibilities of approved providers)

This section provides that an approved provider must ensure that, except for the period under section 1.22, 1.23 or 1.25 when a person is allowed not to have a police certificate, there is for each person who is a staff member or volunteer a police certificate that is, at all times during which the person remains a staff member or volunteer, not more than 3 years old.

An approved provider must ensure that a staff member or volunteer must not be allowed to continue as a staff member or volunteer if the police certificate records that he or she has been convicted of murder or sexual assault or convicted of, and sentenced to imprisonment for, any other form of assault.

Section 1.22 (Arrangements for new staff members or volunteers who do not yet have police certificates)

This section sets out the very limited circumstances in which a person may work in an aged care service without having a police certificate.

A person who does not have a police certificate may become a staff member or volunteer if all of the following requirements are met:

• the care or other service to be provided by the person is essential;
• there is an application made for a police certificate for the person before the date on which the person first becomes a staff member or volunteer;
• the person will be subject to appropriate supervision during periods when the person has access to care recipients; and
• the person makes a statutory declaration stating that the person has never been convicted of murder or sexual assault, or convicted of, and sentenced to imprisonment for, any other form of assault.

Division 3 Transitional provisions

This Division sets out transitional arrangements that apply to existing staff and volunteers (that is, people who are working in aged care services at the time the legislation takes effect on 1 March 2007).

Section 1.23 (Conditions for all existing staff members)

This section provides that if by 1 June 2007 an existing staff member (that is a person who worked for the approved provider as at 1 March 2007) has not obtained a police certificate that was issued after 1 June 2004, the approved provider will not be in breach of the new requirements provided that existing staff have applied for a police certificate.

Section 1.24 (Additional condition for certain existing staff members)

This section sets out an additional requirement for existing staff members who, at any time after they turned 16, were a citizen or permanent resident of a country other than Australia.

In this case, an approved provider must ensure that, in addition to meeting the condition in paragraph 1.23(a) or (b), the person has made by 1 June 2007 a statutory declaration stating that the person has never been convicted of murder or sexual assault, or convicted of, and sentenced to imprisonment for, any other form of assault.

Section 1.25 (Conditions for all existing volunteers)

This section provides that if by 1 September 2007 an existing volunteer (that is, a person who was a volunteer as at 1 March 2007) has not obtained a police certificate that was issued after 1 September 2004, the approved provider will not be in breach of the new requirements provided that existing volunteers have applied for a police certificate.

Section 1.26 (Additional condition for certain volunteers)

This section sets out the additional requirement for existing volunteers who have, since turning 16, been a citizen or permanent resident of a country other than Australia. 

For such people, the approved provider must ensure that, in addition to the Australian police certificate requirements, the person must (by 1 September 2007) make a statutory declaration stating that the person has never been convicted of murder or sexual assault, or convicted of, and sentenced to imprisonment for, any other form of assault.

Section 1.27 (Declaration about compliance)

This section provides that an approved provider must, for each aged care service operated by the approved provider between 1 March 2007 and 1 September 2007, give the Secretary on or before 30 September 2007 a written declaration stating whether the approved provider complied with the requirements of this Part as at 1 September 2007.

The declaration must:

• be in the form approved by the Secretary;
• be signed by a key personnel authorised by the approved provider to sign the declaration;
• include all of the information required by the form; and
• not contain any information that is false or misleading in a material particular.