EXPLANATORY STATEMENT

Issued by the authority of the Minister for Ageing

Aged Care Act 1997

Investigation Principles 2007

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

On 27 March 2007, Parliament passed the Aged Care Amendment (Security and Protection) Bill 2007 (the Bill) which gives effect to announcements made by the Australian Government in 2006 to increase protections for residents including to introduce new, more robust aged care complaints investigation arrangements.

Amongst other things, the Bill amended subsection 96-1(1) of the Act which allows the Minister to make Principles providing for various matters required or permitted by a Part or section of the Act.  Specifically, the amendments enabled the making of Investigation Principles under the Act.

The purpose of the Investigation Principles 2007 (the Investigation Principles) is to outline the process that the Secretary to the Department of Health and Ageing (the Secretary) will undertake in investigating complaints or information brought to his or her attention regarding the responsibilities of a residential or community aged care provider under the Act.

The Investigation Principles also describe the rights that approved providers and informants have in respect of certain decisions made by the Secretary under these Principles, to examination of these decisions by the Aged Care Commissioner.

The Investigation Principles are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Consultation

The proposed new complaints investigation arrangements have been the subject of extensive consultation with the aged care sector.

An exposure draft of these Principles was circulated to members of the Minister for Ageing’s Aged Care Advisory Committee and 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 the comments into account in drafting these final Principles.

The Aged Care Standards and Accreditation Agency has also been consulted in relation to its complementary role of the Agency in monitoring compliance with the Accreditation Standards vis-à-vis the role of the Department of Health and Ageing in investigating complaints.  The Office of the Commissioner for Complaints has also been consulted.

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

The Note at the beginning of the Investigation Principles summarises the matters dealt with in the Investigation Principles.  The Principles detail what will be investigated, how investigations will be conducted, what will be considered in making decisions regarding investigations and the procedures for the Aged Care Commissioner to examine certain decisions made in relation to investigations and also to examine certain complaints.

Part 1 - Preliminary

Section 16A.1 Name of Principles

The name of the Principles is the Investigation Principles 2007.

Section 16A.2 Commencement

The commencement date for the Investigation Principles is 1 May 2007.

Section 16A.3 Revocation

This section revokes the Committee Principles 1997 (the Committee Principles).  The Committee Principles described the previous complaints resolution process, so will be replaced with the new complaints investigation process described in the Investigation Principles.

Section 16A.4 Definitions

This section provides definitions of specific terms used in the Investigation Principles.  

Part 2 – Sources of information

Section 16A.5 Giving information to Secretary

This section describes the type and forms of information that may be given to the Secretary for investigation under the Investigation Principles.

The section provides that information may be given in the form of a complaint, or other type of information, where this information relates to an approved provider’s responsibilities under the Act or Principles. 

The Secretary cannot investigate matters under the Investigation Principles which do not relate to an approved provider’s responsibility under the Act or Principles (see section 16A.6 below).

This section also states that a person may provide information either orally or in writing.  Further, a person providing information may do so on an anonymous basis, or may ask for certain aspects to be kept confidential.  An informant may ask that their identity, the identity of a person included in the information, or any other details included in the information provided be kept confidential.  For the purposes of these Principles, an informant is defined as the person who gave the information to which the investigation relates.

This section also allows an informant to withdraw from an investigation at any time.  By withdrawing from the process, the informant forfeits their right to feedback regarding the investigation, although the Secretary has the discretion under section 16A.20 of the Principles to provide feedback to such an informant where the Secretary deems this to be appropriate.  It should be noted that section 16A.12 also provides that the Secretary may continue an investigation even where the informant has withdrawn from the process.

Part 3 – Investigations by Secretary

Division 3.1 Investigation of information given to Secretary

Section 16A.6 Threshold test – what matters are to be investigated

This section requires the Secretary to assess whether a matter mentioned in section 16A.5 relates to an approved provider’s responsibilities under the Act or Principles.  Where this is the case, the section provides that the Secretary must investigate the matter.  This is subject to section 16A.7 which describes the circumstances in which the Secretary may decide not to investigate a matter.

Section 16A.7 Circumstances in which Secretary may decide not to investigate

This section describes the circumstances under which the Secretary may decide not to investigate a matter which relates to an approved provider’s responsibility under the Act or Principles.  It should be noted that this is a discretionary power and none of the circumstances outlined in this section preclude the Secretary from investigating a matter.

The Secretary may decide not to investigate where:

-         the matter is frivolous or vexatious;

-         the information was not given in good faith;

-         the matter relates to an issue that has been, or is, the subject of a legal proceeding;

-         the matter relates to an issue that has previously been dealt with under the Investigation Principles or the previous Committee Principles 1997;

-         the matter relates to an event that occurred more that 1 year before the information was given to the Secretary and the matter is not ongoing; or

-         an investigation is not warranted having regard to all the circumstances of the case.  This power is consistent with the previous Committee Principles 1997 which enabled the Secretary to refuse to accept a complaint if the Secretary was satisfied that the complaint should not be accepted for another reason.  Under these new Investigation Principles, all complaints about approved provider responsibilities will be accepted but the Secretary may decide not to investigate a particular matter if the Secretary considers that investigation is not warranted in the particular circumstances.  If the Secretary makes this decision, the person who made the complaint (or provided the information) will be given feedback about this decision (refer section 16A.18).

Section 16A.8 How investigations are to be conducted

This section outlines how the Secretary is to conduct investigations.  The section provides the Secretary with the power to conduct investigations in the manner that the Secretary considers appropriate to determine whether or not an approved provider has breached its responsibilities.  In practice, the Department of Health and Ageing will institute detailed internal procedures that investigation officers will be required to follow in undertaking investigations.

This section also provides that the Secretary must inform the relevant provider (relevant provider is defined in these Principles as the approved provider to which the investigation relates) as soon as possible after the commencement of an investigation that the investigation is taking place.  The Secretary is not required to notify the relevant provider if the Secretary considers that doing so is likely to harm the investigation, place the safety, health or well-being of the informant or a care recipient at risk or place the informant or a care recipient at risk of intimidation or harassment.

This section also outlines the types of actions the Secretary may take when undertaking an investigation.  The Secretary may decide to undertake any or all of these actions, but the legislation does not prescribe what action must be undertaken.  Such actions include:

-         analysing and reviewing documents – this might include, for example, analysis and review of a care recipient’s care documentation;

-         visiting the aged care service – this may include announced or unannounced visits to a residential care service or a community care provider’s offices, or a visit to a community care recipient’s own home at the invitation of the care recipient;

-         facilitating the informant, the relevant provider or any other person to meet with one another to try to resolve any issues in dispute – this option would only be possible where all parties and the issues are conducive to such a resolution, and where the informant’s identity is known and not required to be kept confidential.

-         requesting information from persons.

It is important to note that the circumstances surrounding the particular complaint or information will influence the investigatory process adopted by the Secretary.  The Secretary may choose to undertake one or more of the actions described above or may also decide to take any other action that enables the Secretary to properly investigate a matter.

Section 16A.9 Confidentiality

As outlined in subsection 16A.5(3), the Secretary is required to keep certain information about a complaint confidential if requested to do so by the informant.  This section provides that the Secretary is required to maintain confidentiality consistent with subsection 16A.5(3) unless the Secretary considers that doing so will, or is likely to, harm the investigation, place the safety, health or well-being of the informant or a care recipient at risk, or place the informant or a care recipient at risk of intimidation or harassment.

Section 16A.10 Referral to other organisations

This section provides that the Secretary may refer a matter to another organisation where the Secretary believes the matter requires, or may require, action by that organisation.  Such organisations may include, for example, the police, a nurses’ registration board or a state health department.  This section should be read in conjunction with section 16A.12 which provides that the Secretary may continue with an investigation even where a matter under investigation has been referred to another organisation.

Section 16A.11 Use of information obtained during investigation

This section provides that information obtained during the course of an investigation can be used for other purposes related to the administration of the Act or Principles.

Section 16A.12 Continuation of investigation

This section provides that the Secretary may continue with the investigation process even if the matter under investigation has also been referred to another organisation (refer to section 16A.10) or the informant withdrew from the process (refer to subsection 16A.5(4)).

Division 3.2 Investigation on Secretary’s own motion

Section 16A.13 Own motion investigation

This section allows the Secretary to undertake an “own motion” investigation based on information known to the Secretary or his/her Department.  In this context, an own motion investigation is an investigation initiated by the Secretary.  That is, an investigation that is not the result of a complaint made, or other information given by an informant, to the Secretary.

Part 4 Outcomes of investigation by Secretary

Section 16A.14 Ending an investigation

This section provides that the Secretary may end an investigation at any time, whether or not the Secretary has determined whether a breach has occurred.

Section 16A.15 Determining whether there has been a breach

This section empowers the Secretary to decide, after an investigation has been undertaken, whether a relevant provider has breached its responsibilities under the Act or Principles.

Section 16A.16 Action following determination of breach

This section outlines the actions the Secretary may take if, following an investigation, the Secretary determines that the relevant provider has breached its responsibilities under the Act or Principles.  It should be noted that the actions taken under this section are discretionary.  The Secretary is not required by the legislation to undertake any of these actions.

Where the Secretary determines there has been a breach, the Secretary must give the relevant provider notification that they have breached their responsibilities and that they may apply for examination of this decision by the Aged Care Commissioner under Part 6 (subsection 16A.16(2)).

Further, where a breach is determined, the Secretary may, in accordance with subsection 16A.16(3), give the relevant provider a notice of required action which specifies the action that the provider must take in order to comply with its responsibilities under the Act or Principles.  This notice will also advise the relevant provider of the timeframe in which the prescribed action must be undertaken.  Section 16A.17 (refer below) describes the form and conditions of a notice of required action.

Subsection 16A.16(4) describes the situation where a relevant provider is found to be in breach of its responsibilities but, prior to a notice of required action being issued, the provider has remedied the breach or is already taking appropriate action to comply.  In such circumstances, the Secretary may choose to write to the relevant provider, acknowledging the action taken by the provider, rather than issuing a notice of required action under subsection 16A.16(3).

Subsection 16A.16(5) provides that nothing in section 16A.16 prevents the Secretary from taking action under Part 4.4 of the Act (instead of taking the action detailed above).  This allows for situations where the Secretary finds the matter to be sufficiently serious to warrant non-compliance action or sanctions action under Part 4.4 of the Act without first going through the process of issuing a notice of required action.  For example, where the matter poses an immediate and severe risk to the safety, health or well-being of a care recipient.

Section 16A.17 Form and conditions of notice of required action

This section describes the form a notice of required action must take and other matters relating to the notice of required action.

Subsection 16A.17(1) states that a notice of required action must be in writing and may be subject to any conditions that the Secretary specifies in the notice.  The Secretary may also add a condition to a notice of required action or vary or revoke a condition (refer subsection 16A.17(2)).

It is important that the Secretary has the discretion to apply any conditions that are necessary in order to ensure that the approved provider remedies the breach.  The conditions of a notice of required action may include, for example, a description of the actions that should be taken by the approved provider to remedy a breach (and to ensure that it does not recur) and conditions about the timeframes in which these actions must be taken.  If the breach related to, for example, an approved provider failing to repay bonds to a care recipient or over-charging a care recipient, the notice of required action could also include a condition that the approved provider repays the specified amount to the affected care recipient within a specified timeframe.

Subsection 16A.17(3) requires the relevant provider to comply with a notice of required action and the conditions of the notice.  The relevant provider is also required to comply with any additions or variations to the notice.  Failure to comply with a notice may result in sanctions being imposed under Part 4.4 of the Act.

Subsection 16A.17(4) requires the Secretary to include in the notice of required action, information for the relevant provider regarding the provider’s rights to examination by the Aged Care Commissioner under Part 6 of the Investigation Principles of decisions regarding the setting, adding or varying of conditions of the notice.

Part 5 – Feedback

Section 16A.18 Feedback if no further proposed action

This section outlines the feedback that the Secretary must provide if the Secretary decides not to take further action in relation to a matter.  This applies where the information given under section 16A.5 does not warrant investigation in accordance with section 16A.7, where the Secretary decides to end an investigation (see section 16A.14) or the Secretary decides that the relevant provider has not breached its responsibilities.

Subsection 16A.18(2) notes that this section does not apply to a person who gives information anonymously, as the Secretary is unable to provide feedback where they do not know the identity of the informant.

Feedback to care recipients and their representatives

Paragraph 16A.18(3)(a) describes the feedback that must be provided to a care recipient (or his or her representative) who has provided information under section 16A.5 that relates to the care recipient.  For the purposes of these Principles, a representative of a care recipient includes an advocate, legal guardian or a carer or relative of the care recipient (this definition is set out in section 16A.4 of the Investigation Principles).

If the Secretary decides that the issue does not warrant investigation, or the Secretary ends the investigation or decides that the relevant provider has not breached its responsibilities, then the care recipient or their representative must be provided with a statement of reasons for the decision.  In addition, if the Secretary decided to end the investigation or that the provider did not breach its responsibilities, then the feedback provided must also inform the care recipient (or their representative) about their rights to seek examination of the Secretary’s decision by the Aged Care Commissioner under Part 6 of the Investigation Principles.  A care recipient (or their representative) cannot seek review by the Aged Care Commissioner of a decision by the Secretary not to investigate a matter where, the Secretary has decided not to investigate a matter on one of the grounds detailed in section 16A.7 (for example the complaint was not made in good faith).   

Feedback to other people who are not care recipients or their representatives

Paragraph 16A.18(3)(b) states that where information given under 16A.5 was by another person (other than the care recipient (or his or her representative) to which the matter relates), the Secretary must provide a written statement of reasons for the decision, unless the person has asked not to be given feedback.  This paragraph also provides that the Secretary is only required to give feedback to such people where the Secretary has the correct contact details for that person.  Such a person does not have a right to examination of the decision under Part 6.

Feedback to relevant provider

Paragraph 16A.18(3)(c) describes the written feedback that must be given to the relevant provider.  The Secretary must give the relevant provider a statement of reasons for the decision.  The approved provider does not require information about rights to examination, as the provider does not have such rights where the decisions relate to not investigating a matter, ending an investigation or that the relevant provider has not breached its responsibilities.  This is because it is assumed that an approved provider would not wish to seek review by the Aged Care Commissioner of a decision by the Secretary not to investigate the approved provider or a decision to end an investigation or to find that the approved provider has not breached their responsibilities.

Section 16A.19 Feedback if breach of approved provider responsibilities

This section describes the feedback that must be provided if the Secretary decides that an approved provider has breached its responsibilities.

Feedback to care recipients and their representatives

Paragraph 16A.19(2)(a) describes the feedback that must be provided to a care recipient, or his or her representative, who has provided information under section 16A.5 where such information relates to the care recipient.  Under such circumstances the Secretary must provide the care recipient, or their representative, with a statement of reasons for the decision and, where a notice of required action has not been issued to the relevant provider, information about rights for examination of the decision not to issue a notice by the Commissioner under Part 6.

If a notice of required action has been issued to the relevant provider, the Secretary must provide the care recipient with, in addition to a statement of reasons, details of any conditions of the notice that relate to the matter raised by the care recipient (or their representative), and information about the care recipient’s (or their representative’s) right to seek examination of the decision to set, or not to set the conditions of the notice of required action.

Feedback to other people who are not care recipients or their representatives

Paragraph 16A.19(2)(b) provides that where information was given under section 16A.5 by another person (other than the care recipient (or his or her representative) to which the matter relates), the Secretary must provide them with a statement of reasons for the decision, unless the person has asked not to be given feedback.  This paragraph also provides that the Secretary is only required to give feedback to such people where the Secretary has correct contact details for that person.  Such a person is not entitled to receive information about the conditions of any notice of required action and does not have a right to examination under Part 6.

Feedback to relevant provider

This section does not deal with feedback to the relevant provider because if an approved provider has breached its responsibilities under the Act and a notice of required action has been issued to the approved provider, then the provider will have received that notice and it will include a statement that the relevant provider may apply to the Aged Care Commissioner for examination of the decision (refer section 16A.17).

Section 16A.20 Feedback to other persons

This section allows the Secretary to provide feedback on an investigation to any other person or organisation that the Secretary considers has sufficient relevant interest in the matter.  This may include, for example, other care recipients or family members that the Secretary decides are affected by an investigation and are entitled to know the outcome.

Part 6 Aged Care Commissioner

Note

The Note describes the three main areas of responsibility of the Aged Care Commissioner.  These are:

-         dealing with complaints about the Secretary’s processes for handling matters under the Investigation Principles and the conduct of accreditation bodies (currently the Aged Care Standards and Accreditation Agency) relating to their responsibilities under the Accreditation Grant Principles or the conduct of persons carrying out audits, or making support contacts, under those Principles;

-         examining decision mentioned in section 16A.21 or 16A.22 of the Investigation Principles; and

-         undertaking its own investigations in relation to the Secretary’s process for handling matters under the Investigation Principles or the conduct of accreditation bodies or they assessors under the Act (see section 95A-1 of the Act).

Division 6.1 Examination of Secretary’s decisions by Aged Care Commissioner

Section 16A.21 Application by care recipient or representative for examination

This section allows an aggrieved person, who is dissatisfied with any of the following decisions made by the Secretary, to apply within 14 days of being told about the decision, for examination of the decision by the Aged Care Commissioner.  For the purposes of these Principles, the definition of aggrieved person is a care recipient of the relevant provider, or his or her representative, to whom a matter under investigation relates.  The decisions that an aggrieved person may seek examination of are:

-         a decision under section 16A.14 to end an investigation;

-         a determination by the Secretary under section 16A.15 that the relevant provider has not breached its responsibilities under the Act or Principles;

-         a decision by the Secretary not to issue a notice of required action; or

-         a decision by the Secretary setting, adding or varying conditions of a notice of required action that directly relates to the aggrieved person.

Section 16A.22 Application by relevant provider for examination

This section allows a relevant provider, who is dissatisfied with any of the following decisions made by the Secretary, to apply within 14 days of being told about the decision, for examination of the decision by the Aged Care Commissioner.  The decisions that an aggrieved person may seek examination of are:

-         a determination, under section 16A.15, that the relevant provider has breached its responsibilities under the Act or Principles;

-         a decision to issue a notice of required action; or

-         a decision setting, adding or varying the conditions of a notice of required action.

Section 16A.23 Form of application for examination

Subsection 16A.23(1) provides that an application for examination must be made in writing and must state the reasons why examination is sought.  These reasons must be substantial and must extend beyond a person simply being dissatisfied with the original decision.  The application must be received by the Commissioner within 14 days after the day when the applicant was told, or given feedback about, the decision.

Subsection 16A.23(2) allows the application to be supported by additional information.

Section 16A.24 Decisions examinable by Aged Care Commissioner

This section sets out the requirements for the Aged Care Commissioner undertaking an examination.

Subsection 16A.24(1) details what makes a decision examinable by the Commissioner.  A decision is examinable if:

-         the decision is a decision mentioned in section 16A.21 or 16A.22 of these Principles; and

-         the aggrieved person or relevant provider has filed an application for examination of the decision.

Subsection 16A.24(2) allows the Commissioner to examine an examinable decision in the manner that the Commissioner considers appropriate.  In practice, the Office of the Aged Care Commissioner will develop detailed procedures for examination.

Subsection 16A.24(3) describes the circumstances in which the Aged Care Commissioner may refuse to examine an examinable decision.  Under this subsection the Commissioner may to refuse to examine an examinable decision if the Commissioner is satisfied that the application for examination is frivolous or vexatious, the application was not made in good faith, or the application relates to a matter that is, or has been the subject of a legal proceeding.

Subsection 16A.24(4) requires the Aged Care Commissioner to give to the Secretary, within 60 days of receiving an application for examination, a recommendation about the examinable decision or a report about a refusal (under subsections 16A.24(3)) to examine the examinable decision.

Section 16A.25 Secretary to consider Aged Care Commissioner’s recommendation

This section details what action the Secretary is required to take after receiving a recommendation from the Aged Care Commissioner about an examination undertaken under section 16A.24. 

Subsection 16A.25(1) requires the Secretary to undertake a reconsideration of the decision, taking into account the Commissioner’s recommendations,

Subsection 16A.25(2) requires the Secretary, within 14 days of receiving the recommendation, to:

-         confirm the examinable decision;

-         vary the examinable decision; or

-         set aside the examinable decision and substitute a new decision.

Subsection 16A.25(3) provides that the Secretary must advise the aggrieved person, the relevant provider and the Aged Care Commissioner in writing about the decision on reconsideration.

Division 6.2 Examination by Aged Care Commissioner of certain complaints

Section 16A.26 Complaints to Aged Care Commissioner

Subsection 16A.26(1) provides that a person may make a written complaint to the Aged Care Commissioner about:

-         the Secretary’s processes for handling matters under the Investigation Principles;

-         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 the Accreditation Grant Principles.

Subsection 16A.26(2) provides that complaints can only be made in relation to a matter that occurred on or after 1 May 2007.

Section 16A.27 Aged Care Commissioner’s discretion to examine complaints

This section outlines the circumstances in which the Aged Care Commissioner must refuse to examine a complaint and other circumstances in which the Commissioner may exercise discretion not to undertake an examination.

Subsection 16A.27(2) requires the Commissioner to refuse to examine a complaint where the Commissioner is satisfied that:

-         the complaint does not relate to a function of the Commissioner;

-         the complaint is about the conduct of an accreditation body relating to its responsibilities under the Accreditation Grant Principles, or the conduct of a person carrying out an audit, or making a support contact, under the Accreditation Grant Principles and the complainant has not made the complaint about the matter, or brought the matter to the attention of, the accreditation body; or

-         the complaint is about the Secretary’s processes for handling matters under the Investigation Principles and the complainant has not made a complaint about the matter, or brought the matter to the attention of, the Secretary.

Subsection 16A.27(3) provides the Commissioner with the discretion not to examine a complaint if the Commissioner is satisfied that:

-         the complaint is frivolous or vexatious;

-         the complaint was not made in good faith;

-         the complaint relates to a matter that is, or has been, the subject of a legal proceeding; or

-         having regard to all the circumstances, examination of the complaint is not warranted.

Subsection 16A.27(4) allows the Commissioner to examine a complaint in the manner that the Commissioner considers appropriate.  In practice, the Office of the Aged Care Commissioner will operate under detailed procedures for examination.

Section 16A.28 Notice of examination

This section provides that if the Aged Care Commissioner decides to examine a complaint mentioned in section 16A.26, he or she must, as soon as possible, tell the person or body, against who the complaint is made, about the complaint.

Part 7 – Transitional

Section 16A.29 Transitional

This section details the arrangements for transition from the existing Committee Principles to the new Investigation Principles.  This section applies to each person who has made a complaint under the Committee Principles in which the complaint has not been determined or discontinued, or if the person has applied for a review of the determination resolving the complaint, the review has not been finalised.

Subsection 16A.29(2) provides that as soon as possible after the commencement of the Investigation Principles, 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, the complaint or review will be taken to be a complaint or examination under the Investigation Principles.

Where a person elects (under subsection 16A.29(2)) to have a complaint dealt with under the Committee Principles, the complaint must be dealt with by 1 September 2007, if the matter is not resolved before that date.

Where a complaint or review has not been resolved before 1 September 2007, subsection 16A.29(4) provides that the complaint is to be dealt with under the Investigation Principles.