Royal Commission into Aged Care Quality and Safety

With the first week of hearings due to commence on Monday 11 February, we thought it was timely to reflect on the preliminary hearing in mid-January and to give you some insights into what you should expect next week and moving forward. 

General observations from our attendance at the preliminary hearing

The preliminary hearing was held on Friday 18 January before  Commissioners Richard Tracey AM RFD QC and
Lynelle Briggs AO. 

The Commission made it clear it intends to focus on the instances of substandard care and abuse and the failings in the present system.  Through considering these issues, recommendations will be made as to how to prevent instances of abuse and generally improve the aged care system.

Guiding themes for the Commission

• Quality and safety
• Access and inclusion
• Young people with disabilities
• Interfaces and transitions
• Future challenges and opportunities
• How to deliver quality care in a sustainable way.

Who is being asked to respond

In November last year, approximately 2000 aged care providers approved under the Commonwealth Aged Care Act 1997 were invited to make submissions about substandard care in their facilities and opportunities for improvement.

At the time of the preliminary hearing, the Commission received only 83 submissions. At that time, submissions were voluntary, but the Commission noted that healthcare providers who did not voluntarily comply would draw attention to themselves.

These responses related to approximately 2000 services and outlets and the highest number of reported incidents related to residential care. 

Focus of the hearings

The hearings in February will focus on the present system and the context in which it operates, including:

• the key features of the Aged Care Quality Safety and Complaints system and how that works in practice and at a general level;
• information about the challenges faced by the aged care system including evidence from consumer advocacy bodies, peak bodies and regulators;
• how the aged care system was monitored and regulated before 1 January 2019, the establishment of the Aged Care Quality and Safety Commission and how it is expected to be monitored under the new commission; and
• testimony from those who are receiving Aged Care now.

Later hearings will focus on systemic issues, defects and reforms.

The Commission also intends to interact with stakeholders outside of the formal hearings including, for example, community roundtables and direct engagement with experts.

What will happen next

We expect that following the first set of hearings, the Commission is likely to exercise its compulsive powers and require industry providers to produce documents relevant to the terms of reference and the key themes identified above. Once documents have been produced, it may be that witnesses will be called and witness statements will need to be drafted.

We anticipate that industry providers will be required to consider complicated issues including the material to be produced, whether any of that material is privileged and how witness statements should be prepared and drafted.  Any interaction with the Commission will also need to comply with the Practice Guidelines published by the Commission and those guidelines will be legal in nature.

Importantly, like the Financial Services Royal Commission, the Commission has indicated that short response times will be common and should be expected.

Procedure

• Public Hearings will be held in each capital city and some regional centres throughout the course of this year.
• Leave to appear will not be by right, applications to appear may be made and will be supported by Counsel Assisting where they are directly relevant to the issues raised at that hearing.
• Counsel Assisting will identify witnesses to appear, the order at which they will appear, and the documents to be tendered.
• The evidence of witnesses is to be received in a written statement supplemented via oral testimony.
• Emphasis is to be placed on hearing from the public about their access to aged care services
• Cross-examination of witnesses will occur by leave only with no general opened ended right of examination, cross examination or tendering evidence.
• Practice Guidelines regarding these matters (including, for example witness statements and legal privilege) will be published on the Commission’s website.

Timeline

 

Date	Description
November 2018	Submissions invited from aged care providers
7 January 2019	Submissions due from the largest 100 health care providers
8 February 2019	Submissions due from remaining 1882 approved providers
11 February 2019	Next hearings to commence (continuing into the week 18 February)
31 October 2019	Interim report due from the Commission
30 April 2020	Final report due from the Commission

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).