EXPLANATORY STATEMENT
Issued by the authority of the Minister for Ageing
Aged Care Act 1997
Accountability Amendment Principles 2007 (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.
On 27 March 2007 the Aged Care Amendment (Security and Protection) Bill 2007 (the Bill), passed through Parliament giving effect to announcements made by the Australian Government in 2006 to increase protections for residents including through the introduction of compulsory reporting of sexual assault and certain types of physical assault in residential aged care.
In addition to setting out the circumstances in which approved providers of residential aged care must report allegations of such assault, the Bill provides that the Accountability Principles may detail circumstances in which approved providers have a discretion not to report assaults. In such circumstances, the Bill requires approved providers to comply with the requirements (if any) that the Accountability Principles make of the approved provider.
As a result of consultation with the aged care sector, and Parliamentary inquiry by the Senate Standing Committee on Community Affairs, the Government is amending the Accountability Principles (through these Amending Principles) to include a discretion in the Accountability Principles for approved providers not to report allegations of sexual or physical assault where the alleged perpetrator is a resident of an aged care service who has dementia or some other cognitive or mental impairment. This enables such cases to be clinically managed by the approved provider where this is the most appropriate response.
In such circumstances, there will be a requirement that the approved provider has in place behaviour management arrangements in relation to the resident and that these arrangements are available for inspection by the Department of Health and Ageing and the Aged Care Standards and Accreditation Agency. The Department and the Agency will monitor such arrangements to ensure behaviour is being managed appropriately and other residents are protected.
These Amending Principles, which give effect to this policy, are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
The proposed new arrangements for compulsory reporting of sexual and physical assault, including the discretion not to report where the perpetrator is a resident with a cognitive or mental impairment, have been the subject of consultation with the aged care sector.
Exposure drafts of these Principles along with the Investigation Principles 2007, the Records Amendment Principles 2007 and the Information Amendment Principles 2007, which collectively give effect to the new complaints arrangements as well as the new compulsory reporting requirements, were circulated to members of the Minister for Ageing’s Aged Care Advisory Committee. They were also provided to other organisations which made submissions to the Senate Inquiry into the Bill. Comments received on the drafts were generally supportive of the proposed approach and the Department of Health and Ageing has taken all comments into account in drafting the final Principles.
The Aged Care Standards and Accreditation Agency has also been consulted in relation to their role in monitoring the new arrangements.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (RIS ID 8438).
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 2007 (No. 1).
Clause 2 states that the commencement dates are as follows:
- Sections 1 to 3 and Schedule 1 commence on 1 May 2007; and
- Schedule 2 commences on 1 July 2007.
Clause 3 states that Schedules 1 and 2 amend the Principles.
Schedule 1 Amendments commencing on 1 May 2007
Item 1
Section 1.3 currently defines the term ‘Committee Principles’. As the new Investigation Principles 2007 revoke the Committee Principles 1997, the definition of Committee Principles is no longer required. This item therefore removes the definition of Committee Principles from the list of definitions in the Accountability Principles.
Item 2
Section 1.4 of the Accountability Principles currently defines ‘representative’. A number of the types of representatives referenced in the section will no longer exist once the Committee Principles are repealed and replaced by the Investigation Principles. The definition of representative is therefore being amended to remove all references to those bodies that existed under the old Committee Principles (paragraphs 1.4(1)(c) to (g)).
These references are then replaced with references to:
- the Secretary to the Department of Health and Ageing (the Secretary) who will be a representative for the purposes of carrying out his/her functions under the Investigation Principles (paragraph 1.4(1)(c)); and
- the new Aged Care Commissioner (paragraph 1.4(1)(d)).
Item 3
Consistent with the amendment to paragraphs 1.4(1)(c) to (g) above, the references to these paragraphs under subsections 1.6(1) and (2) are also being amended to reflect this change. Therefore, the reference to paragraphs (c) to (g) in these two subsections is replaced with a reference to paragraphs (c) and (d).
Item 4
Subsections 1.7(2) and (3) relate to the written notice that must be provided by representatives to access a residential care service and the representatives who are not required to give written notice under the Committee Principles. As the Committee Principles are being replaced by the new Investigation Principles, these subsections must be amended.
Subsections 1.7(2) and (3) will be replaced with a new subsection (2) allowing the Secretary to the Department of Health and Ageing (in performing duties under the Investigation Principles) and the Aged Care Commissioner (in performing duties under the Act or Investigation Principles) to access a residential care service without written notice. This is consistent with current practice where the Secretary may give oral notice when exercising powers under the Committee Principles. Currently, Complaints Resolution Committees and Determinations Review Panels may also give oral notice under the Committee Principles.
Item 5
Section 1.13 describes the circumstances in which an approved provider may refuse access to a residential care service. One circumstance in which a representative may refuse access is where the representative has not complied with subsection 1.7(1), (2) or (3). As subsections 1.7(2) and (3) will now be substituted with a new subsection 1.7(2), paragraph 1.13(a) must be amended accordingly.
Schedule 2 Amendments commencing on 1 July 2007
Item 1
This item amends the note that appears at the beginning of the Accountability Principles so that it includes a reference to the new requirements that are being included in the Accountability Principles as a result of these Amending Principles. In particular the note will include a reference to the fact that the Principles set out the circumstances in which reportable assaults need not be reported by an approved provider to a police officer or the Secretary and the requirements for such circumstances.
Item 2
This item inserts a new Part 5 after Part 4.
Part 5 Circumstances in which approved provider has discretion not to report allegations or suspicions of reportable assaults
Section 1.30 (Purpose of Part)
This section summarises the purpose of the Part. The purposes of the Part are:
(a) to specify, for subsection 63-1AA(3) of the Act, circumstances in which approved providers are not required to report allegations or suspicions of reportable assaults (under subsection 63-1AA(2) of the Act); and
(b) to set out the requirements that an approved provider must comply with if such circumstances exist and if an approved provider exercising the discretion not to report certain alleged or suspected reportable assaults.
Section 1.31 (When subsection 63-1AA(2) of the Act does not apply)
This section describes the circumstances in which subsection 63-1AA(2) of the Act does not apply. That is, the circumstances in which approved providers are not required to report reportable assaults under the compulsory reporting arrangements.
Under subsection 1.31(1), approved providers will not be required to report reportable assaults if, within 24 hours of the allegation or suspicion, the approved provider forms a belief that the perpetrator is a resident, who, before the allegation or suspicion arose, has been assessed by an appropriate health professional as suffering from a cognitive or mental impairment. Approved providers will be required to maintain documentation of such assessments.
For the purposes of these Principles, examples of an appropriate health professional include, but are not limited to, a geriatrician, another type of medical practitioner or a registered nurse. In Victoria, a registered nurse for these purposes is considered to be a Division 1 registered nurse.
In addition, the approved provider must, within 24 hours of the allegation or suspicion, put in place, and document, arrangements to manage the behaviour that the resident has displayed in assaulting another resident.
The documentation that must be kept (namely the assessment of the resident and the behaviour management plan) is in addition to the consolidated records about all incidents involving allegations or suspicions of reportable assaults that are required to be kept by approved providers in accordance with section 19.5AA of the Records Principles 1997.
In addition, subsection 1.31(2) provides that approved providers are not required to report an incident to the police and the Secretary if they have already done so and there is then a subsequent allegation that relates to the same, or substantially the same, factual situation or event as the earlier allegation that has previously been reported to a police officer and the Secretary.
The purpose of this provision is to ensure that if multiple people make the same allegation about the same assault perpetrated by the same person on the same resident, then the approved provider is not required to report this to the police and the Secretary each time the same even is brought to their attention.
It is important to note that while these provisions give approved providers a discretion not to report certain assaults in certain circumstances, an approved provider may at any time choose to voluntarily report such an assault.