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Serious Incident Response Scheme: Second phase of mandatory reporting obligations commences 1 October 2021

Victor Harcourt, Anita Courtney, Matthew Goessler and Johanna Heaven

Approved providers of aged care should now be familiar with the Serious Incident Response Scheme (SIRS) which commenced on 1 April 2021. The SIRS framework is set out in the Quality of Care Principles 2014 and encompasses the responsibilities of approved providers to establish and maintain incident management systems, as well respond to reportable incidents. Importantly, approved providers are required to report serious incidents affecting residential care recipients to the Aged Care Quality and Safety Commission (Commission).

Introduction

On 1 April 2021, the Aged Care Act 1997 (Cth) (Act) was amended to introduce a Serious Incident Response Scheme (SIRS) for residential aged care, and flexible care delivered in a residential aged care setting (approved providers). These amendments introduced an additional responsibility for approved providers in a bid to reduce the incidence of abuse and neglect of older Australians in aged care. Specifically, approved providers now have the responsibility to manage incidents and take reasonable steps to prevent incidents. The requirements for compliance with this responsibility are outlined in the Quality of Care Principles 2014 (Principles). The amendments also defined reportable incidents for the purposes of the SIRS.

Whilst the SIRS has been operational since 1 April 2021, the mandatory reporting obligations under the SIRS have thus far been limited to priority 1 reportable incidents. However, from 1 October 2021, approved providers will be required to report all priority 2 reportable incidents within 30 calendar days of their occurrence. 

What are priority 2 reportable incidents?

From 1 October 2021, all reportable incidents that do not meet the criteria for priority 1 reportable incidents must also be reported to the Commission within 30 calendar days. It is expected that priority 2 reportable incidents will usually be incidents where there is low or no impact on the victim. However, approved providers should be mindful that the absence of visible physical harm (such as bruising or wounds) does not automatically preclude an incident from being assessed as a priority 1 reportable incident. For example, unlawful sexual contact or inappropriate sexual conduct may not manifest in visual harm or distress to a care recipient. 

What are reportable incidents?

A reportable incident includes any of the following incidents (amongst others) that have occurred, are alleged to have occurred, or are suspected of having occurred in connection with an approved provider’s provision of care to a care recipient:

  1. unreasonable use of force against the residential care recipient;
  2. unlawful sexual contact, or inappropriate sexual conduct, inflicted on the residential care recipient;
  3. unexpected death of the residential care recipient;
  4. neglect of the residential care recipient;
  5. unexplained absence of the residential care recipient from the residential care services of the provider.

The Principles provide further detail on the categories of reportable incidents. All reportable incidents must be notified to the Commission via the My Aged Care service provider portal. However, the period of time within which to report a reportable incident to the Commission depends on how the incident is assessed.

What are priority 1 reportable incidents?

Since 1 April 2021, approved providers have been required to report the incidence of priority 1 reportable incidents within 24 hours of becoming aware of the incident. The Commission may also request that approved providers produce an additional report within 5 days of the incident. In some circumstances, the Commission will also require the submission of a final report within 12 weeks of an incident.

A priority 1 reportable incident is a reportable incident:

  1. that has caused, or could reasonably have been expected to have caused, a residential care recipient physical or psychological injury or discomfort that requires medical or psychological treatment to resolve; or
  2. where there are reasonable grounds to report the incident to police; or
  3. that involves the unexpected death of a residential care recipient or the unexplained absence of a residential care recipient from the residential care services of the approved provider.

What should be included in a priority 2 notice?

If an approved provider becomes aware of a reportable incident and has not given priority 1 notice about the incident, the approved provider must give the Commission priority 2 notice within 30 calendar days of becoming aware of the incident.

A priority 2 notice must include the following information:

  1. the name and contact details of the approved provider;
  2. a description of the reportable incident including:
    1. the kind of reportable incident; and
    2. the harm that was caused, or that could reasonably have been expected to have been caused, to each person affected by the incident; and
    3. if known—the consequences of that harm;

  3. the actions taken in response to the reportable incident, including;
    1. actions taken to ensure the safety, health and well‑being of the residential care recipients affected by the incident; and
    2. whether the incident has been reported to police or any other body;

  4. any further actions proposed to be taken in response to the reportable incident;
  5. the name, position and contact details of the person giving the notice;
  6. if known—the time, date and place at which the reportable incident occurred or was alleged or suspected to have occurred;
  7. the names of the persons directly involved in the reportable incident;
  8. if known—the level of cognition of the residential care recipients directly involved in the reportable incident.

It is important that approved providers include all of the information specified in the Principles in priority 2 notices. A priority 2 notice must be in writing and in the form approved by the Quality and Safety Commissioner (Commissioner).

Oversight

The Commission maintains regulatory oversight of compliance with approved providers’ responsibilities under the Act, including those in respect of incident management and reportable incidents. Relevantly, the Commissioner may take action to deal with a reportable incident, including requiring the approved provider to undertake remedial action, to investigate the incident or to engage an independent expert to carry out an investigation of the incident.

The Commissioner may also inquire into a reportable incident or an approved providers’ compliance with requirements relating to reportable incidents. An inquiry of this nature can be carried out as the Commissioner sees fit. It is worth noting that the exercise of these powers does not preclude the Commissioner from taking action under the Aged Care Quality and Safety Commission Act (Commission Act) in relation to:

  1. an incident (including a reportable incident); or
  2. information received by the Commissioner under Part 6A of the Aged Care Quality and Safety Commission Rules 2018 or Part 4B of the Principles.

Accordingly, approved providers should be aware that information obtained as part of an inquiry into a reportable incident, or otherwise provided to the Commissioner in reports or investigations into a reportable incident can be utilised as the basis for taking action under the Commission Act.

Conclusion

If a provider becomes aware of a reportable incident, it is important to act swiftly and precisely in accordance with the Act and Principles. Approved providers should ensure that incident management systems and procedures– at a minimum – meet the requirements of the Principles.

Such systems and procedures should be robust and clearly articulate pathways to follow in the event of a reportable incident. Ultimately, approved providers that are well prepared to deal with reportable incidents are less likely to be non-compliant with their responsibilities under the Act and the Principles.

Responding to reportable incidents requires strict adherence to providers’ obligations under the Act and Principles. Our team can assist you in preparing for, or responding to reportable incidents by: reviewing incident management systems and procedures, reviewing or drafting initial notices to the Commission and preparing or responding to inquiries. As a priority, providers should seek prompt legal advice on the identification of reportable incidents.

Please send an email to vharcourt@rk.com.au if you would like further information or assistance about your responsibilities under the SIRS.

If you would like to keep up to date with Alerts, news and Insights from our aged care team, you can subscribe to our mailing list here. We also have a broad range of standard and tailored template aged care agreements, policies and other documents you can find more information about here.

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