EXPLANATORY STATEMENT
Issued by the authority of the Minister for Mental Health and Ageing
Aged Care Act 1997
Complaints Amendment (Living Longer Living Better) Principle 2013
The Aged Care Act 1997 (the Act) provides for the regulation and funding of aged care services. Persons who are approved under the Act to provide aged care services (approved providers) can be eligible to receive subsidy payments in respect of the care they provide to approved care recipients.
Section 96-1 of the Act allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act. Among the Principles made under section 96-1 are the Complaints Principles 2011 (the Principles).
The Principles outline the process that the Secretary of the Department of Health and Ageing will undertake in relation to complaints or information brought to his or her attention regarding the responsibilities of a residential, home care or flexible aged care provider under the Act. The Principles also outline the processes of the Aged Care Commissioner (ACC) in examining the decisions and processes of the Secretary in relation to a complaint.
On 20 April 2012, the Government announced the Living Longer Living Better aged care reform package to reshape aged care. As part of a commitment to improve the quality and regulation of aged care, the reforms include strengthening the independence of the ACC to improve consumer and industry confidence in Commonwealth aged care complaints handling mechanisms. In particular, the ACC will have stronger powers to compel the Secretary to undertake a new complaints resolution process that takes into account the findings of the ACC.
In order to give effect to this reform, amendments are required to the Principles. Details of these amendments are set out in the Attachment.
The Complaints Amendment (Living Longer Living Better) Principle 2013 (the Amending Principle) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
The Living Longer Living Better aged care reform package was developed in close consultation with the aged care sector, including consumers, industry and professional bodies.
Consultation on the proposed changes to the Act, and to delegated legislation, commenced in November 2012, with the public release of a paper providing an overview of the proposed legislative changes.
A video presentation detailing the changes was also made available through the Living Longer Living Better website, to assist with public understanding of the proposed changes.
During November and December 2012, the Department of Health and Ageing (the Department) also held briefing sessions in Melbourne, Sydney and Canberra on the proposed changes.
Stakeholders and the general community were able to provide written comments during a four-week period (21 November – 21 December 2012). The comments were made publicly available on the Living Longer Living Better website, unless the author requested otherwise. The Department received 54 submissions from members of the public, peak bodies and approved providers in response to the published overview of legislative amendments. Submissions received via the consultation on the overview of the proposed legislative changes were used to inform drafting of the amending bills and the delegated legislation.
In March and April 2013, the Department held industry briefing sessions across Australia to provide information and to explain, in detail, the proposed legislative changes included in the package of Bills introduced into Parliament on 13 March 2013. For those who were unable to attend the briefings a copy of the presentation, supporting handouts, a detailed Questions and Answers document and an information video were made available on the Living Longer Living Better website.
An exposure draft of the Amending Principle was made available on the Living Longer Living Better website in May 2013.
In relation to the specific policy changes proposed in the Amending Principle, the Department undertook consultation with the ACC and the National Aged Care Alliance (NACA) complaints sub group, as the representative body of peak aged care provider, consumer, union and health professional groups. The feedback provided through these consultations was taken into account in the finalisation of the Amending Principle.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that no Regulation Impact Statement is required (OBPR ID 14985).
Commencement
The Amending Principle commences on 1 August 2013.
ATTACHMENT
Details of the Complaints Amendment (Living Longer Living Better) Principle 2013
Clause 1 states that the name of the Amending Principle is the Complaints Amendment (Living Longer Living Better) Principle 2013.
Clause 2 states that the Amending Principle commences on 1 August 2013.
Clause 3 provides that the authority for the making of the Amending Principle is the Aged Care Act 1997.
Clause 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Item 1 – Paragraph 13A.23(6)(a)
Section 13A.23 describes the circumstances in which a complainant or an approved provider may apply to the ACC for examination of a decision by the Secretary.
This item makes a consequential amendment to paragraph 13A.23(6)(a) to cross reference the provision that will enable the ACC to direct the Secretary to undertake a new resolution process, that is, paragraph 13A.25(2)(c).
Paragraph 13A.23(6)(a) as amended provides that an approved provider may apply to the ACC for examination of the Secretary’s decision to end a new resolution process where: a new resolution process has resulted from the ACC examining an issue and directing that the Secretary undertake a new process; and the Secretary’s new resolution process has been ended because directions have been issued to the approved provider (where such directions were not issued as part of the original resolution process).
Item 2 – Section 13A.25
Section 13A.25 currently outlines the process the ACC is to undertake in examining decisions of the Secretary in relation to a complaint. This item repeals this section and replaces it with a new section.
Section 13A.25 – Examination by ACC
Subsection 13A.25(2) provides that within 60 days of the ACC deciding to examine the Secretary’s decision the ACC must:
- decide to take no further action if one or more of the circumstances described in 13A.24(2) exist. This may include situations where the application for examination was not made in good faith; the application relates to an issue that has been, or is, the subject of a legal proceeding or a coronial inquiry; a care recipient named in the application does not wish for the matter to be considered; or examination of the Secretary’s decision is not warranted, having regard to all the circumstances; or
- recommend that the Secretary not undertake a new resolution process; or
- direct the Secretary to undertake a new resolution process in accordance with Parts 3 to 5 of the Complaints Principles 2011. If the ACC makes such a direction, the ACC also has the capacity to identify matters the Secretary must take into account in undertaking the new resolution process (subsection 13A.25(3)).
This provision fulfills the intent of the reforms in strengthening powers of the ACC to direct the Secretary to undertake a new resolution process.
Provisions relating to the ACC notifying parties (subsections 13A.25(4) and (5)) to a complaint once the ACC has undertaken his/her examination, have been retained.
Item 3 – Section 13A.26
Section 13A.26 outlines the process the Secretary must follow in undertaking a new resolution process following ACC examination. This item repeals section 13A.26 and replaces it with a new section that removes reference to the Secretary making the decision to undertake a new resolution process and reflects the ACC’s capacity to direct the Secretary to undertake a new process under 13A.25(4)(c).
Section 13A.26 – New resolution process following ACC examination
This section provides that if the ACC directs that the Secretary undertake a new resolution process, the Secretary must undertake and complete the new resolution process within 46 days of receiving the direction. This timeframe aims to ensure that the Secretary can maintain the quality of the new resolution process and work with the parties to resolve a complaint. This also allows time for processes provided for in 13A.26(5) to be undertaken.
This section also:
- provides that the Secretary must notify the complainant (if any), approved provider and the ACC that a new resolution process is being undertaken following a directive by the ACC (subsection 13A.26(4));
- gives an additional 28 days for the Secretary to undertake a new resolution process, provided the Secretary notifies both the complainant and the approved provider before the initial 46 days have expired (subsection 13A.26(2)). The notification must outline that the time period is to be extended and the reasons for the extension. If the timeframe is extended the Secretary must also notify the ACC (subsection 13A.26(3));
- provides for the Secretary to notify the ACC of the Secretary’s intention to, and reasons for, ending the new resolution process prior to doing so (paragraph 13A.26(5)(a)). This requires the Secretary to undertake a consultative process with the ACC to ensure the ACC’s views have been understood and considered before a decision is finalised by the Secretary. Further, paragraph 13A.26(5)(b) provides that the Secretary must take into account any further comments provided by the ACC within 7 days of the ACC being notified that the Secretary is considering ending the resolution process; and
- stipulates that the Secretary must provide the ACC with a copy of the feedback given to a complainant and approved provider under section 13A.16 (subsection 13A.26(6)).
Item 4 – Section 13A.30
Section 13A.30 outlines the process the ACC may take in examining a complaint under 13A.27 relating to the Secretary’s processes for handling complaints.
This item repeals the existing section 13A.30 and replaces it with a new section.
Section 13A.30 - Examination of complaint
The section provides the ACC the ability to take no further action in relation to a complaint on the basis that, having regard to all the circumstances, examination of the complaint is not warranted (subsection 13A.30(2)).
Item 5 – Part 8
This item repeals the transitional arrangements described in Part 8. Given the length of time since the repeal of the Investigation Principles 2007 on 1 September 2011, the transitional provisions are no longer required.
The item also inserts new transitional provisions relating to these new amendments.
Section 13A.33 – Examination by ACC
This transitional provisions provide that if the ACC commenced an examination of a matter before 1 August 2013, but did not conclude the examination before 1 August 2013, the version of section 13A.25 in force on 1 August 2013 will apply to the examination, in that the ACC will be able to direct the Secretary to undertake a new resolution process.
Section 13A.34 – New resolution process
This section provides that if the Secretary commenced a new resolution process as recommended by the ACC before 1 August 2013, but did not conclude the resolution process before 1 August 2013, the process must be completed within the timeframes set out in section 13A.26 as in force on 1 August 2013.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Complaints Amendment (Living Longer Living Better) Principle 2013
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The purpose of the Complaints Amendment )Living Longer Living Better)Principle 2013 (the Legislative Instrument) is to support the Living Longer Living Better aged care reform package by strengthening the power of the Aged Care Commissioner under the Complaints Principles 2011 (the Principles). In order to give effect to this reform, amendments are required to the Principles.
Human rights implications
This Legislative Instrument promotes the human right to health contained in article 12 of the International Covenant on Economic, Social and Cultural Rights. The Legislative Instrument engages the right of everyone to the enjoyment of the highest attainable standard of physical and mental health by strengthening the powers of the Aged Care Commissioner in dealing with complaints about aged care services. This helps to ensure that the required standard of care and services provided to recipients of aged care services is maintained.
Conclusion
This Legislative Instrument is compatible with human rights as it promotes the human right to health.
Senator the Hon Jacinta Collins
Minister for Mental Health and Ageing