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Royal Commission into Aged Care Quality and Safety - Terms of Reference released

Victor Harcourt

The Governor-General has today released the Terms of Reference for the Royal Commission into Aged Care Quality and Safety. We encourage providers to become familiar with the scope of the Commissioners' inquiry. 

The Terms of Reference are on page 2 of the Letters Patent which can be viewed here. Other matters that may be considered are set out on pages 3 and 4. We encourage providers to become familiar with the scope of the Commissioners’ inquiry. 

There have been a number of changes to the draft Terms of Reference given the 5,000 plus submissions, four national roundtables and industry consultation. We highlight the most notable below. 

In particular, the Letters Patent sets out expressly the scope of “quality” that the Commission intends to cover including, but not limited to, the following:

  • Dignity, choice and control
  • Clinical care including medication management, personal care, nutrition
  • Mental health
  • Positive behaviour supports to reduce or eliminate the use of restrictive practices
  • End of life care
  • Systems to ensure that high quality care is delivered, such as governance arrangements and management support systems

There is express mention of the interface with other services accessed by people receiving aged care services, including primary health care services, acute care and disability services, and the relevant regulatory systems which indicates a desire to accommodate the obligations in these other sectors into the aged care space for consistency. 

There appears to be greater focus on “person-centred” and greater choice in all areas of aged care which may indicate a review about consumer directed care being expanded from home care to encompass residential care. 

The reference to “innovative models of care, increased use of technology, and investment in the aged care workforce and capital infrastructure” is encouraging and may indicate a desire by the current government to look for reform in the areas of increasing funding through other means. As a consequence, providers should be encouraged to provide their examples of good practice and innovative models in delivering aged care services to the Commission. 

The Terms of Reference include considering how best to deliver aged care services to people with disabilities. This is to be investigated having regard to Australia’s international obligations for the implementation of the rights of people with disabilities.

The Commissioners have also been directed to inquire into the findings and recommendations of previous relevant reports and inquiries (we have described these in the attached) to inform themselves of the previous work done in the aged care space. We therefore believe that this Commission will be the catalyst for testing the recommendations made previously. 

Importantly, the review does not encompass the retirement living sector which is governed by separate state-based legislation. The terms also do not touch on a discussion of mandated ratios but rather “the critical role of the aged care workforce”; we have no doubt the issue will be raised but consider the bulk of the Terms indicate a review of quality standards, regulator responses and oversight, and whether past recommendations should be implemented. 

The Honourable Justice Joseph McGrath and Ms Lynelle Jann Briggs AO have been appointed.

Justice McGrath has been a Judge of the Supreme Court of Western Australia since November 2016 and prior to this, was the Director of Public Prosecutions for Western Australia and a Senior Assistant Director at the Commonwealth DPP. 

Ms Briggs has held the role as the CEO of Medicare Australia and served as the Australian Public Service Commissioner since 2013. She has also played instrumental roles in different Departments.  

The Commissioners are to begin their inquiry as soon as practicable. The Royal Commission’s interim report is due to be provided by 31 October 2019, and its final report no later than 30 April 2020. This indicates a thorough review which could cover a substantial body of material from approved providers and the wider public. 

We are now aware that the Commission will be convened in Adelaide given its connection to the South Australian experience with Oakden. This requires the setting up of the Adelaide office, hiring administrative staff and beginning their operations and reviewing past material. We also expect the relevant regulators to be called upon to provide background information to the Commission prior to any Notices to Produce are sent out. 

We can only anticipate that the Commission will be set out by November 2018 with a view to seeking initial material from approved providers in December/January. We are expecting a dedicated website to be established with information about how approved providers and the wider public can engage with the Commission. 

We encourage providers to begin risk assessing their position against each of the terms of reference and reviewing past recommendations to consider what the Commissioners may be looking to implement when reviewing evidence in the future. 

In the coming days, we will be drafting further resources to assist with risk assessments and in particular, informing staff and residents about how the Royal Commission will impact them. 

For further resources, we encourage you to visit our Royal Commission webpage which is updated regularly with insights and materials. 

If you would like more information please contact Victor Harcourt from our Aged Care team. 

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