Note: Part 6.4A of the Aged Care Act 1997
Part 6.4A of the
Aged Care Act 1997 is about the investigation of matters relating to the
Act or the Principles made under section 96‑1 of the Act.
These Principles
deal with:
(a) which
matters are to be investigated;
(b) how
investigations are to be conducted;
(c) considerations
in making decisions relating to investigations;
(d) procedures
for the Aged Care Commissioner to examine certain decisions made in relation to
investigations and also to examine certain complaints.
Part 1 Preliminary
16A.1 Name of Principles
These Principles are the Investigation Principles 2007.
16A.2 Commencement
These Principles commence on 1 May 2007.
16A.3 Revocation
The Committee Principles 1997 are revoked.
16A.4 Definitions
In these Principles:
Act means the Aged Care Act 1997.
aggrieved person
means a care recipient of the relevant provider, or his or her representative,
to whom a matter under investigation relates.
examinable decision means a decision
examinable by the Aged Care Commissioner under section 16A.24.
informant, for the investigation process,
means the person who gave the information to which the investigation relates.
investigation process means the process under
Part 3.
notice of required action has the meaning
given by section 16A.16.
own motion investigation has the meaning
given by section 16A.13.
Principles means the Principles made under
section 96‑1 of the Act.
relevant provider, for the investigation
process, means the approved provider to which the investigation relates.
representative, of a care recipient,
includes:
(a) an advocate for the care recipient; and
(b) a legal guardian of the care recipient; and
(c) a carer or relative of the care recipient.
Part 2 Sources of information
16A.5 Giving information to
Secretary
(1) A person may give to the Secretary (by way of
complaint or otherwise) information about a matter involving an approved
provider’s responsibilities under the Act or Principles.
(2) Information may be given orally or in writing, and
may be given anonymously.
(3) An informant may ask the Secretary to keep the
following confidential:
(a) the identity of the informant;
(b) the identity of a person included in the
information;
(c) any other details included in the
information.
(4) An informant may withdraw from the investigation
process at any time.
Note An informant who withdraws from the
investigation process ceases to have a right to be given feedback about the
outcome of the investigation. However, the Secretary may decide to give
feedback to an informant who has withdrawn from the process (see section 16A.20).
Part 3 Investigations by Secretary
Division 3.1 Investigation of information
given to Secretary
16A.6 Threshold test — what
matters are to be investigated
(1) If the Secretary receives information mentioned in
section 16A.5, the Secretary must assess the information to determine whether
it relates to an approved provider’s responsibilities under the Act or
Principles.
(2) Subject to section 16A.7, if the information relates
to an approved provider’s responsibilities under the Act or Principles, the
Secretary must investigate the matter.
16A.7 Circumstances in which
Secretary may decide not to investigate
The Secretary may decide not to investigate a matter
relating to an approved provider’s responsibilities if the Secretary is
satisfied that:
(a) the provision of the information under section 16A.5
is frivolous or vexatious; or
(b) the information was not given in good faith;
or
(c) the matter relates to an issue that has
been, or is, the subject of a legal proceeding; or
(d) the matter relates to an issue that has been
dealt with under these Principles or the Committee Principles 1997 as they
then existed; or
(e) the matter relates to an event:
(i) that occurred more than 1 year
before the information was given to the Secretary; and
(ii) that is not ongoing; or
(f) having regard to all the circumstances,
investigation of the matter is not warranted.
16A.8 How investigations are to be
conducted
(1) If the Secretary is satisfied that a matter requires
investigation, the Secretary may conduct the investigation in the manner that
the Secretary considers appropriate for the purpose of determining whether the
relevant provider has, or has not, breached its responsibilities under the Act
or Principles.
(2) As soon as possible after the commencement of the investigation,
the Secretary must notify the relevant provider about the investigation, unless
the Secretary considers that the notification will, or is likely to:
(a) harm the investigation; or
(b) place the safety, health or well-being of the
informant or a care recipient at risk; or
(c) place the informant or a care recipient at
risk of intimidation or harassment.
(3) In conducting the investigation, the Secretary may,
but is not required to, do any of the following:
(a) analyse and review documents;
(b) visit the aged care service;
(c) meet with the informant (if known), the
relevant provider or any other person;
(d) arrange for the informant (if known and if
the informant’s identity is not required to be kept confidential), the relevant
provider or any other person to meet with one another to try to resolve any
issues in dispute;
(e) request information from persons.
16A.9 Confidentiality
The Secretary must ensure that any request for
confidentiality under subsection 16A.5 (3) is complied with unless the
Secretary considers that doing so will, or is likely to:
(a) harm the investigation; or
(b) place the safety, health or well-being of the
informant or a care recipient at risk; or
(c) place the informant or a care recipient at
risk of intimidation or harassment.
16A.10 Referral to other
organisations
If the Secretary considers that a matter requires,
or may require, investigation or other action by another organisation, the
Secretary may refer the matter to the organisation.
16A.11 Use of information obtained
during investigation
Nothing in this Part prevents the use of
information that was obtained, or that became known, during the investigation process
for other purposes related to the administration of the Act or Principles.
16A.12 Continuation of investigation
The investigation process may continue even if:
(a) the matter has been referred to another
organisation; or
(b) the informant has withdrawn from the process.
Division 3.2 Investigation on Secretary’s
own motion
16A.13 Own motion investigation
Nothing in this Part prevents the Secretary from
conducting an investigation on the Secretary’s own motion, based on information
known to the Secretary or the Department (own motion investigation).
Part 4 Outcomes of investigation by
Secretary
16A.14 Ending an investigation
The Secretary may end an investigation at any time,
with or without determining whether the relevant provider has, or has not,
breached its responsibilities under the Act or Principles.
16A.15 Determining whether there has
been a breach
After investigation, the Secretary may determine
whether the relevant provider has, or has not, breached its responsibilities
under the Act or Principles.
16A.16 Action following determination
of breach
(1) This section applies if the Secretary determines
that the relevant provider has breached its responsibilities under the Act or
Principles.
(2) The Secretary must give to the relevant provider:
(a) written notification that it has breached
its responsibilities under the Act or Principles; and
(b) a statement that it may apply to the Aged
Care Commissioner for examination of this decision under Part 6.
(3) The Secretary may give to the relevant provider a
notice specifying the action that the relevant provider must take to comply
with its responsibilities under the Act or Principles (notice of required
action).
(4) If, before a notice of required action is given, the
relevant provider complies, or takes appropriate action to comply, with its
responsibilities in a way that is satisfactory to the Secretary, the Secretary
may (instead of giving the notice of required action) give a written
acknowledgment of the action taken by the relevant provider.
(5) Nothing in this section prevents the Secretary from
taking action under Part 4.4 of the Act instead of action under these
Principles.
16A.17 Form and conditions of notice
of required action
(1) A notice of required action must be in writing and
may be subject to any conditions that the Secretary may specify in the notice.
(2) The Secretary may add
a condition to, or vary or revoke a condition of, a notice of required action.
(3) The relevant provider must comply with the notice of
required action and any conditions to which the notice is subject, including a
condition that has been added or varied.
(4) The notice of required action must include a
statement that the relevant provider may apply to the Aged
Care Commissioner under Part 6 for examination of the decision to give
the notice or a decision setting, adding or varying the conditions of the
notice.
Note If a relevant provider fails to
comply with a notice of required action, sanctions may be imposed under Part
4.4 of the Act. Additional notice and information are required before sanctions
can be imposed (see Division 67 of the Act).
Part 5 Feedback
16A.18 Feedback if no further
proposed action
(1) This section applies if the
Secretary makes a decision:
(a) that information given
under section 16A.5 is not to be investigated because
the Secretary has decided not to investigate the matter, in accordance with
section 16A.7; or
(b) to end an investigation; or
(c) that the relevant provider has not breached its
responsibilities.
(2) This section does not apply to a
person who gives information anonymously.
(3) The Secretary must give the
following written feedback:
(a) if the information was
given under section 16A.5 by a care recipient or his or
her representative and the information related to the care recipient’s care, to
the care recipient (or his or her representative):
(i) a statement of
reasons for the decision; and
(ii) if the decision
is of a kind mentioned in paragraph (1) (b) or (c) — a statement that the
care recipient (or his or her representative) may apply to the Aged Care
Commissioner under Part 6 for examination of the decision; and
(b) if the information was given
by another person for whom the Secretary has contact details, unless that
person asked not to be given feedback on the matter, to the person — a statement of reasons for the decision; and
(c) to the relevant provider —
a statement of reasons for the decision.
16A.19 Feedback if breach of relevant
provider responsibilities
(1) This section applies if the
Secretary makes a decision that the relevant provider has breached its
responsibilities.
(2) The Secretary must give the
following written feedback:
(a) if the information was given
under section 16A.5 by a care recipient or his or her
representative and the information related to the care recipient’s care, to the
care recipient (or his or her representative):
(i) a
statement of reasons for the decision; and
(ii) if
a notice of required action has not been given to the relevant provider — a
statement that the care recipient (or his or her representative) may apply to
the Aged Care Commissioner under Part 6 for examination of the decision not to
give a notice of required action; and
(iii) if a notice of required
action has been given to the relevant provider:
(A) a
statement of any conditions of the notice of required action that relate to the
matter raised by the care recipient (or his or her representative); and
(B) a statement that the care recipient (or his or her
representative) may apply to the Aged Care Commissioner under Part 6 for
examination of the decision of the Secretary to set, or not to set, a
condition that relates to the matter raised by the care recipient (or his or
her representative);
(b) if the information was given
by another person for whom the Secretary has contact details, unless that
person asked not to be given feedback on the matter, to the person — a
statement of reasons for the decision.
16A.20 Feedback to other persons
The Secretary may give feedback relating to an
investigation to any other person or organisation that the Secretary considers
has sufficient relevant interest in the matter.
Part 6 Aged Care Commissioner
Note
The Aged Care
Commissioner’s 3 main areas of responsibility are:
(a) dealing
with complaints about the Secretary’s processes for handling matters under the Investigation
Principles 2007 and the conduct of accreditation bodies relating to their
responsibilities under the Accreditation Grant Principles or the conduct of
persons carrying out audits, or making support contacts, under those Principles;
(b) examining
decisions mentioned in section 16A.21 or 16A.22;
(c) undertaking
its own investigations in relation to the matters mentioned in paragraph (a)
(see Act, s 95A‑1).
Division 6.1 Examination of Secretary’s
decisions by Aged Care Commissioner
16A.21 Application by care recipient
or representative for examination
An aggrieved person who is dissatisfied about any
of the following decisions may, within 14 days after being told by the
Secretary about the decision, apply to the Aged Care Commissioner for
examination of the decision:
(a) a decision by the Secretary under section 16A.14
to end an investigation;
(b) a determination by the Secretary under
section 16A.15 that the relevant provider has not breached its responsibilities
under the Act or Principles;
(c) a decision by the Secretary not to issue a
notice of required action;
(d) a decision by
the Secretary setting, adding or varying conditions of a notice of required
action that directly relates to the aggrieved person.
16A.22 Application by relevant
provider for examination
A relevant provider who is dissatisfied about any
of the following decisions may, within 14 days after being told by the
Secretary about the decision, apply to the Aged Care Commissioner for examination
of the decision:
(a) a determination by the Secretary under section
16A.15 that the relevant provider has breached its responsibilities under the
Act or Principles;
(b) a decision by the Secretary to issue a notice
of required action;
(c) a decision by the Secretary setting, adding
or varying conditions of a notice of required action.
16A.23 Form of application for examination
(1) An application for examination must:
(a) be in writing; and
(b) state the reasons (other than mere
dissatisfaction with the decision) why examination is sought; and
(c) be received by the Aged Care Commissioner
within 14 days after the day when the applicant was told about, or given
feedback on, the decision.
(2) The application may be supported by additional
information.
16A.24 Decisions examinable by Aged
Care Commissioner
(1) A decision is examinable by the Aged Care
Commissioner if:
(a) the decision is a decision mentioned in
section 16A.21 or 16A.22; and
(b) the aggrieved person or relevant provider
filed an application for examination of the decision.
(2) The Aged Care Commissioner may examine an examinable
decision in the manner that the Commissioner considers appropriate.
(3) The Aged Care Commissioner may refuse to examine an
examinable decision if the Commissioner is satisfied that:
(a) the application for examination is frivolous
or vexatious; or
(b) the application was not made in good faith;
or
(c) the application for examination relates to a
matter that is, or has been, the subject of a legal proceeding.
(4) Within 60 days after the day when the Aged Care
Commissioner receives an application for examination, the Aged Care
Commissioner must give to the Secretary:
(a) a recommendation about the examinable
decision; or
(b) a report about a refusal, under subsection
(3), to examine the examinable decision.
16A.25 Secretary to consider Aged
Care Commissioner’s recommendation
(1) After the Secretary
receives a recommendation from the Aged Care Commissioner about an examinable
decision, the Secretary must, taking into consideration the recommendation,
reconsider the decision.
(2) The Secretary must, within 14 days after receiving
the recommendation:
(a) confirm the examinable decision; or
(b) vary the examinable decision; or
(c) set aside the examinable decision and
substitute a new decision.
(3) The Secretary must
tell the aggrieved person, the relevant provider and the Aged Care Commissioner
in writing about the Secretary’s decision on reconsideration.
Division 6.2 Examination by Aged Care
Commissioner of certain complaints
16A.26 Complaints to Aged Care
Commissioner
(1) A person may make a written complaint to the Aged
Care Commissioner about:
(a) the Secretary’s processes for handling
matters under the Investigation Principles 2007; or
(b) the conduct of accreditation bodies relating
to their responsibilities under the Accreditation Grant Principles 1999;
or
(c) the conduct of persons carrying out audits,
or making support contacts, under those Principles.
(2) For subsection (1), a complaint may be made only
about a matter that occurred on or after 1 May 2007.
16A.27 Aged Care Commissioner’s
discretion to examine complaints
(1) The Aged Care
Commissioner may examine, or refuse to examine, a complaint mentioned in
section 16A.26.
(2) The Aged Care Commissioner must refuse to examine a
complaint if the Commissioner is satisfied that:
(a) the complaint does not relate to a function
of the Commissioner; or
(b) the complaint is about the conduct of an
accreditation body relating to its responsibilities under the Accreditation
Grant Principles 1999, or the conduct of a person carrying out an audit, or
making a support contact, under those Principles, and the complainant has not:
(i) made a complaint about the matter
to the accreditation body; or
(ii) brought the matter to the
attention of the accreditation body; or
(c) the complaint is about the Secretary’s
processes for handling matters under the Investigation Principles 2007
and the complainant has not:
(i) made a complaint about the matter
to the Secretary; or
(ii) brought the matter to the
attention of the Secretary.
(3) The Aged Care Commissioner may refuse to examine a
complaint if the Commissioner is satisfied that:
(a) the complaint is frivolous or vexatious; or
(b) the complaint was not made in good faith; or
(c) the complaint relates to a matter that is,
or has been, the subject of a legal proceeding; or
(d) having regard to all the circumstances,
examination of the complaint is not warranted.
(4) The Aged Care Commissioner may examine a complaint
in the manner that the Commissioner considers appropriate.
16A.28 Notice of examination
As soon as possible after the Aged Care
Commissioner decides to examine a complaint mentioned in section 16A.26, he or
she must tell the person or body, against whom the complaint is made, about the
complaint.
Part 7 Transitional
16A.29 Transitional
(1) This section applies to each person who has made a
complaint under the Committee Principles 1997 in which:
(a) the complaint has not been determined or
discontinued; or
(b) if the person has applied for a review of the
determination resolving the complaint — the review has not been finalised.
(2) As soon as possible after the Investigation
Principles 2007 commence, the Secretary must tell the person in writing
that if the person does not elect within 30 days to have the complaint or
review dealt with under the Committee Principles 1997 as in force
immediately before the Investigation Principles 2007 commenced, the
complaint or review will be taken to be a complaint or examination under the Investigation
Principles 2007.
(3) The complaint or review of a person who makes an
election under subsection (2) is to be dealt with under the Committee
Principles 1997 as in force immediately before the Investigation
Principles 2007 commenced until the earlier of:
(a) the resolution of the complaint or review;
or
(b) 1 September 2007.
(4) A complaint or review that has not been resolved
before 1 September 2007 is to be dealt with under the Investigation
Principles 2007.