Part 1 Preliminary
13A.1 Name
of Principles
These Principles are the Complaints Principles 2011.
13A.2 Commencement
These Principles commence on 1 September 2011.
13A.3 Revocation
The Investigation Principles 2007 are
revoked.
13A.4 Definitions
In these Principles:
ACC means the Aged Care Commissioner.
Act means the Aged Care Act 1997.
complainant
means a person who makes a complaint to the Secretary under section 13A.5.
resolution process means the process undertaken
by the Secretary under section 13A.9 to resolve an issue that is:
(a) raised by a complaint made under section
13A.5; or
(b) raised by another source under section 13A.8.
Part 2 Complaints
13A.5 Making
a complaint
(1) A person may make a complaint to the Secretary raising
an issue or issues about an approved provider’s responsibilities under the Act
or the Principles made under section 96-1 of the Act.
(2) The complaint may be made orally or in writing, and
may be made anonymously.
(3) A complainant may ask the Secretary to keep the
following information confidential:
(a) the identity of the complainant;
(b) the identity of a person identified in the
complaint;
(c) any other details included in the complaint.
13A.6 Dealing
with a complaint
If the Secretary receives a complaint under subsection
13A.5 (1), the Secretary must, in relation to each issue raised in the
complaint:
(a) decide to take no further action on the issue
on the basis that section 13A.7 applies to the complaint; or
(b) quickly resolve the issue to the satisfaction
of the complainant by giving assistance and advice to the complainant or
approved provider to which the issue relates; or
(c) undertake a resolution process.
Examples for paragraph (b)
1 Assist
the complainant to clarify the issues to enable the complainant to raise them
directly with the approved provider.
2 Phone
the approved provider on behalf of the complainant to discuss and resolve the
issue raised by the complainant.
3 Advise
the approved provider of the approved provider’s rights and responsibilities
under the Act and, in doing so, facilitate the resolution of the issue.
13A.7 No
further action on an issue
The Secretary may decide to take no further action
under paragraph 13A.6 (a) if one of the following circumstances
applies:
(a) the issue was not raised in good faith;
(b) the issue is, or has been, the subject of a
legal proceeding;
(c) the issue has been dealt with under these
Principles or the Investigation Principles 2007;
(d) the issue relates to an event:
(i) that occurred more than one year
before the complaint was given to the Secretary; and
(ii) that is not ongoing;
(e) the issue is subject to a coronial inquiry;
(f) a care recipient named in the complaint does
not wish the issue to be considered by the Secretary;
(g) the issue is better dealt with by another
organisation;
(h) having regard to all the circumstances, a resolution
process in relation to the issue is not warranted.
Part 3 Resolution process
13A.8 Secretary
may undertake resolution process on own motion
(1) This section applies if the Secretary receives
information that raises an issue about an approved provider’s responsibilities
under the Act or the Principles made under section 96-1 of the Act, from a source
other than a complaint under section 13A.5.
(2) The Secretary may undertake a resolution process in
relation to the issue.
13A.9 Resolution
process
(1) If the Secretary undertakes a resolution process in
relation to an issue, the Secretary may adopt one or more of the following
approaches to resolve the issue:
(a) request the approved provider to which the
issue relates to examine and attempt to resolve the issue and report back to
the Secretary;
(b) request the complainant (if any), the
approved provider and any other person to participate in a conciliation process;
(c) undertake an investigation of the issue;
(d) refer the issue to mediation.
(2) In adopting any of the approaches in subsection
(1), the Secretary may do one or more of the following:
(a) analyse and review documents;
(b) visit the location at which the services are
provided by the approved provider or the offices of the approved provider;
(c) discuss the issue with the complainant (if
any), the approved provider or any other person, in person or by other means;
(d) request information from any person.
13A.10 Notifying
approved provider
(1) If the Secretary undertakes a resolution process, the
Secretary must notify the approved provider to which the issue relates about
the issue as soon as practicable, unless the Secretary considers that the
notification will, or is likely to:
(a) impede the resolution of the issue; or
(b) place the safety, health or well‑being of the
complainant (if any), a care recipient or any other person at risk; or
(c) place the complainant (if any) or a care
recipient at risk of intimidation or harassment.
(2) If the Secretary decides to undertake an unannounced
visit to the location at which services are provided by the approved provider
or to the offices of the approved provider, the Secretary does not need to
notify the approved provider of the issue until the time of the unannounced
visit.
13A.11 Confidentiality
(1) The Secretary must ensure that a request for
confidentiality under subsection 13A.5 (3) is complied with unless the
Secretary considers that doing so will, or is likely to, place the safety,
health or well‑being of the complainant, a care recipient or any other person at
risk.
(2) The Secretary must take all reasonable steps to
notify the complainant before deciding not to keep information confidential
that the complainant has requested be kept confidential under subsection 13A.5 (3).
13A.12 Withdrawal
of complaint
(1) The complainant may withdraw from the resolution
process, either orally or in writing, at any time.
(2) The Secretary may undertake, or continue to undertake,
the resolution process despite the complainant withdrawing from the resolution
process.
Note A complainant who withdraws from the
resolution process ceases to have a right to be given feedback or to apply for reconsideration
or an examination of the Secretary’s decision by the ACC.
Part 4 Outcome of resolution process
13A.13 Ending
resolution process
The Secretary may decide to end a resolution
process if one or more of the following circumstances apply:
(a) for an issue raised by a complaint — the issue
has been resolved because the complainant, and approved provider to which the issue
relates, have agreed on an outcome;
(b) the approved provider has addressed the issue
to the satisfaction of the Secretary;
(c) the Secretary has directed the approved
provider, in accordance with section 13A.14, to take stated action to comply
with its responsibilities under the Act and the Principles made under section
96-1 of the Act;
(d) the Secretary has initiated action under Part
4.4 of the Act on the basis that the approved provider has not complied, or is
not complying, with one or more of its responsibilities under Parts 4.1 to 4.3
of the Act;
(e) the complainant (if any) has withdrawn from
the resolution process;
(f) the issue is better dealt with by another
organisation;
(g) continuation of the resolution process is
not warranted because the Secretary is satisfied that:
(i) despite reasonable inquiry by the Secretary,
the circumstances giving rise to the issue can not be determined; or
(ii) the information given by the
complainant (if any) was not given in good faith; or
(iii) the issue is, or has been, the
subject of a legal proceeding; or
(iv) the issue has been dealt with under
these Principles or the Investigation Principles 2007; or
(v) the issue is subject to a coronial
inquiry; or
(vi) for an issue raised by a complaint
— a care recipient named in the complaint does not wish the resolution process
to continue;
(h) having regard to all the circumstances, continuation
of the resolution process is not warranted.
Note Requirements for feedback following
a decision under this section to end a resolution process are in Part 5.
13A.14 Directions
to approved provider
(1) If, as part of a resolution process, the Secretary
is satisfied that the approved provider to which the resolution process
relates, is not meeting the approved provider’s responsibilities under the Act or
the Principles made under section 96-1 of the Act, the Secretary may give
directions to the approved provider.
(2) The directions must require the approved provider to
take stated actions in order to comply with the approved provider’s
responsibilities under the Act or the Principles made under section 96-1 of the
Act.
(3) Before the Secretary gives directions to the approved
provider, the Secretary must give a written notice of intention to issue
directions to the approved provider.
(4) However, the Secretary may give directions to the
approved provider, without having issued a notice of intention to issue
directions, if it is necessary to do so because prompt action is required by
the approved provider in order to protect the health, safety or wellbeing of a
care recipient.
(5) The notice of intention to issue directions must:
(a) describe the preliminary findings of the
Secretary and the concerns of the Secretary about the apparent failure of the
approved provider to meet the approved provider’s responsibilities under the
Act or the Principles made under section 96-1 of the Act; and
(b) give the approved provider the opportunity to
respond to these findings by identifying how the approved provider has addressed
or will address the concerns identified; and
(c) state the timeframe the approved provider
has for responding to the notice.
(6) The approved provider may respond to the notice of
intention to give directions.
(7) If the approved provider responds to the notice
under subsection (6), the approved provider must give the response in writing to
the Secretary:
(a) within 14 days after receiving the notice;
or
(b) within such other time as specified in the
notice.
(8) The Secretary may, after considering any response
from the approved provider, give written directions to the approved provider
directing the approved provider to take stated actions in order to comply with
its responsibilities under the Act and the Principles made under section 96-1
of the Act.
Note If the Secretary is satisfied that
the approved provider has addressed the issue, the Secretary may decide to end
the resolution process under paragraph 13A.13 (b).
(9) If the Secretary gives directions to an approved
provider, the approved provider must comply with the directions.
(10) If the approved provider fails to comply with the
directions, the Secretary may initiate action under Part 4.4 of the Act.
Part 5 Feedback
13A.15 Feedback
on no further action
If the Secretary decides to take no further action
on an issue under paragraph 13A.6 (a), the Secretary must, as soon as
practicable, give the complainant, unless the complaint was made anonymously,
written feedback about:
(a) the Secretary’s decision to take no further
action and the reasons for that decision; and
(b) how the complainant may apply for
reconsideration by the Secretary or examination of the Secretary’s decision by
the ACC; and
(c) any other appropriate feedback.
13A.16 Feedback
on resolution process
(1) If the Secretary decides to end a resolution process
under section 13A.13, the Secretary must, as soon as practicable, give the
complainant (if any) and the approved provider to which the resolution process
relates written feedback about:
(a) any key findings; and
(b) the Secretary’s decision to end the
resolution process and the reasons for that decision; and
(c) how the complainant or the approved provider
may apply for reconsideration by the Secretary or examination of the Secretary’s
decision by the ACC; and
(d) any other appropriate feedback.
(2) However, the Secretary is not required to provide
feedback to a complainant if the complaint is made anonymously or if the complainant
withdraws from the resolution process.
(3) The Secretary may give different feedback to the
complainant and the approved provider.
13A.17 Feedback
to other persons
The Secretary may give feedback about a resolution
process to any other person or organisation that the Secretary considers has a
sufficient interest in the matter.
Part 6 Other actions
13A.18 Referral
to other organisations
(1) Nothing in these Principles prevents the Secretary
from referring an issue to another organisation.
(2) A resolution process may continue even if the
Secretary has referred the issue to which the process relates to another
organisation under subsection (1).
13A.19 Use
of information obtained during resolution process
Nothing in these Principles prevents the use of
information that was obtained during the administration of these Principles for
any other purpose related to the administration of the Act or the Principles
made under section 96-1 of the Act.
13A.20 Secretary
may take action under the Act
Nothing in these Principles prevents the Secretary
from taking action in relation to an issue under Part 4.4 of the Act instead of
under these Principles.
Part 7 Reconsideration and examination of decisions
13A.21 Application
for reconsideration by Secretary
(1) A complainant may apply to the Secretary for
reconsideration of a decision by the Secretary under paragraph 13A.6 (a) to
take no further action on a complaint made by the complainant.
(2) A complainant (if any) or an approved provider to
which a resolution process relates may apply to the Secretary for
reconsideration of a decision by the Secretary to end the resolution process under
section 13A.13.
(3) However, an application cannot be made under
subsection (2) for reconsideration of a decision to end a new resolution
process undertaken following a decision under paragraph 13A.22 (1) (b).
(4) An application under subsection (1) or (2) must:
(a) state the reasons (other than
dissatisfaction with the decision) why examination is sought; and
(b) be made within 28 days of the applicant being
notified in writing of the decision.
(5) The application may be made orally or in writing.
13A.22 Reconsideration
by Secretary
(1) Within 28 days of receipt of an application under
section 13A.21, the Secretary must:
(a) confirm the decision to take no further
action or to end the resolution process; or
(b) decide to undertake a new resolution process.
(2) If the Secretary confirms the original decision
under paragraph (1) (a), the Secretary must advise the applicant for
reconsideration in writing of the Secretary’s decision.
(3) If the Secretary decides to undertake a new
resolution process under paragraph (1) (b), the Secretary must complete the
process:
(a) in accordance with Parts 3 to 5; and
(b) within 28 days of making the decision.
(4) If the Secretary decides to undertake a new
resolution process under paragraph (1) (b), the Secretary must notify the
complainant and the approved provider to which the issue relates, in writing,
of the Secretary’s decision.
13A.23 Application
for examination by ACC
(1) A complainant may apply to the ACC for examination
of a decision by the Secretary under paragraph 13A.6 (a) to take no further
action on a complaint made by the complainant.
(2) A complainant (if any) or an approved provider to
which a resolution process relates may apply to the ACC for examination of a
decision by the Secretary under section 13A.13 to end the resolution process.
(3) However, an application cannot be made to the ACC
for examination of a decision by the Secretary under section 13A.13 to end the
resolution process on the basis that the Secretary has initiated action under
Part 4.4 of the Act.
(4) A complainant (if any) may apply to the ACC for
examination of a decision by the Secretary:
(a) under paragraph 13A.22 (1) (a) confirming a
decision to take no further action or to end a resolution process; or
(b) under section 13A.13 to end a new resolution
process following a reconsideration by the Secretary.
(5) An approved provider may apply to the ACC for
examination of a decision by the Secretary:
(a) under paragraph 13A.22 (1) (a) confirming a
decision to end a resolution process; or
(b) under section 13A.13 to end a new resolution
process following a reconsideration by the Secretary.
(6) An approved provider may apply to the ACC for
examination of a decision by the Secretary to end a new resolution process
under section 13A.13, if:
(a) the resolution process was undertaken as a
result of a recommendation by the ACC under paragraph 13A.25 (2) (b); and
(b) the Secretary gave directions under section
13A.14 to the approved provider as part of the new resolution process that were
not given as part of the original resolution process.
(7) However, an approved provider must not apply under
subsection (6) for examination of a decision to end a new resolution process in
relation to an issue if the approved provider has previously applied under
subsection (6) for examination of a new resolution process relating to the same
issue.
(8) An application mentioned in subsection (1), (2), (4),
(5) or (6) must:
(a) state the reasons (other than
dissatisfaction with the decision) why examination is sought; and
(b) be made within 28 days of the applicant being
notified in writing of the Secretary’s decision.
(9) The application may be made orally or in writing.
13A.24 ACC
must decide whether to examine
(1) Within 14 days of receipt of an application under subsection 13A.23
(1), (2), (4), (5) or (6), the ACC must:
(a) decide to take no further action on the
basis that subsection (2) applies; or
(b) decide to examine the Secretary’s decision.
(2) The ACC may decide to take no further action if:
(a) the application for examination was not made
in good faith; or
(b) the application relates to an issue that is,
or has been, the subject of a legal proceeding; or
(c) the application relates to an issue that is
subject to a coronial inquiry; or
(d) a care recipient named in the application
does not wish for the matter to be considered by the ACC; or
(e) having regard to all the circumstances,
examination of the Secretary’s decision is not warranted.
(3) If the ACC decides under paragraph (1) (a) to take
no further action, the ACC must notify the following persons in writing of the
ACC’s decision:
(a) if the application under section 13A.23 was
made by the complainant — the complainant;
(b) if the application under section 13A.23 was
made by the approved provider — the approved provider;
(c) the Secretary.
(4) If the ACC decides under paragraph (1) (b) to
examine the Secretary’s decision, the ACC must notify the following persons in
writing of the ACC’s decision:
(a) the complainant;
(b) the approved provider;
(c) the Secretary.
(5) The ACC may also notify any other person the ACC
considers appropriate.
13A.25 Examination
by ACC
(1) If the ACC decides under paragraph 13A.24 (1) (b) to
examine a decision of the Secretary, the ACC may examine the decision in
whatever manner the ACC considers appropriate.
(2) Within 60 days of the ACC deciding under paragraph 13A.24
(1) (b) to examine the Secretary’s decision, the ACC must:
(a) recommend that the Secretary not undertake a
new resolution process; or
(b) recommend that the Secretary undertake a new
resolution process in accordance with Parts 3 to 5.
(3) If the ACC recommends under paragraph (2) (b) that
the Secretary undertake a new resolution process, the ACC may identify matters
the Secretary should take into account in undertaking the new resolution
process.
(4) The ACC must notify the following persons, in
writing, of the ACC’s decision under subsection (2), and any recommendations
made under subsection (3):
(a) the complainant (if any);
(b) the approved provider to which the
examination relates;
(c) the Secretary.
(5) The ACC may also notify any other person the ACC
considers appropriate.
13A.26 New
resolution process following ACC examination
(1) If the ACC recommends under paragraph 13A.25 (2) (b)
that the Secretary undertake a new resolution process, the Secretary must,
within 28 days of receiving the recommendation:
(a) decide whether to undertake the new
resolution process; and
(b) if the Secretary decides to undertake a new
resolution process:
(i) consider the matters identified by
the ACC under subsection 13A.25 (3); and
(ii) undertake and end the new
resolution process in accordance with Parts 3 to 5.
(2) The timeframe mentioned in subsection (1) may be
extended by a further 28 days if the Secretary notifies the complainant
(if any) and the approved provider to which the new resolution process relates
prior to the expiration of the original 28 days, that the time period is
to be extended and the reason for the extension.
(3) The Secretary must notify the following persons, in
writing, of the Secretary’s decision under paragraph 13A.26 (1) (a):
(a) the complainant;
(b) the approved provider;
(c) the ACC.
13A.27 Complaints
to ACC about process and conduct
(1) A person may make a complaint, either orally or in
writing, to the ACC about:
(a) the Secretary’s process for handling
complaints under these Principles or the Investigation Principles 2007;
or
(b) the conduct of an accreditation body in
relation to its responsibilities under the Accreditation Grant Principles
1999 or the Accreditation Grant Principles 2011; or
(c) the conduct of a person carrying out an
audit or a support contact under the Accreditation Grant Principles 1999;
or
(d) the conduct of a person carrying out an audit
or assessment contact under the Accreditation Grant Principles 2011.
(2) The complaint must be made within 12 months from the
date of the completion of the process or the conduct which gave rise to that
complaint.
13A.28 ACC’s
discretion to examine complaints
(1) Within 14 days of receiving a complaint under
section 13A.27, the ACC must:
(a) decide not to examine the complaint on the
basis that subsection (2) or (3) applies; or
(b) decide to examine the complaint.
(2) The ACC must refuse to examine a complaint if the
ACC is satisfied that the complaint does not relate to a function of the ACC.
(3) The ACC may refuse to examine a complaint if the
ACC is satisfied that:
(a) the complaint was not made in good faith; or
(b) the complaint relates to an issue that is, or
has been, the subject of a legal proceeding; or
(c) the complaint relates to an issue that is
subject to a coronial inquiry; or
(d) the complaint was made by a person that the
ACC does not consider has a sufficient interest in the issue; or
(e) having regard to all the circumstances,
examination of the complaint is not warranted.
13A.29 Notice
of examination
(1) The ACC must, as soon as practicable after making a
decision under subsection 13A.28 (1), tell the person making the complaint
under section 13A.27 of the ACC’s decision to examine or not to examine the
complaint.
(2) The ACC must, as soon as practicable after deciding
to examine the complaint, give the person or body, against whom the complaint
is made, information about the nature and substance of the complaint.
(3) The information mentioned in subsections (1) and (2)
must be given in writing.
13A.30 Examination
of complaint
The ACC may examine a complaint made under section
13A.27 in the manner that the ACC considers appropriate.
13A.31 Notification
(1) The ACC must notify the following persons, in
writing, of the outcome of the ACC’s examination under section 13A.30:
(a) the person who made the complaint;
(b) the person or body to whom the complaint
relates.
(2) The ACC may also notify any other person the ACC
considers appropriate.
Part 8 Transitional
13A.32 Notice
of required action
(1) This section applies if, before the commencement of
these Complaints Principles, an approved provider had been issued a notice of
required action under the Investigation Principles 2007 and had not, on
commencement of these Complaints Principles, completed taking the required
action.
(2) The approved provider must take, or continue to take,
the required action in accordance with the Investigation Principles 2007.
13A.33 Application for review
(1) This provision applies if:
(a) a person received a decision under section
16A.7, 16A.14 or 16A.15 of the Investigation Principles 2007 before the
commencement of these Complaints Principles; and
(b) the end of the period during which the person
may request examination of the decision by the ACC under the Investigation
Principles 2007 occurs after the commencement of these Complaints Principles.
(2) The person may apply in accordance with section
16A.21 of the Investigation Principles 2007 for an examination of the
decision mentioned in paragraph (1) (a) and the ACC must undertake the examination
in accordance with these Complaints Principles.
13A.34 Concluding an examination
(1) If the ACC commenced an examination of a matter under
the Investigation Principles 2007 before the commencement of these Complaints
Principles, but did not conclude the examination before the commencement of
these Complaints Principles:
(a) the ACC must complete the examination in
accordance with these Complaints Principles; and
(b) the ACC must complete the examination within
the timeframes required by the Investigation Principles 2007.
(2) If the ACC recommends under paragraph 13A.25 (2) (b)
that the Secretary undertake a new resolution process, and the Secretary
decides under paragraph 13A.26 (1) (a) to undertake a new resolution process, the
Secretary must apply these Complaints Principles when undertaking the new
resolution process.