Responses to serious incidents of abuse and neglect

Recommendation 4–1               Aged care legislation should provide for a new serious incident response scheme for aged care. The scheme should require approved providers to notify to an independent oversight body:

(a)         an allegation or a suspicion on reasonable grounds of a serious incident; and

(b)         the outcome of an investigation into a serious incident, including findings and action taken.

This scheme should replace the current responsibilities in relation to reportable assaults in s 63-1AA of the Aged Care Act 1997 (Cth).

Recommendation 4–2               The independent oversight body should monitor and oversee the approved provider’s investigation of, and response to, serious incidents, and be empowered to conduct investigations of such incidents.

A new serious incident response scheme

4.42     The ALRC recommends that aged care legislation should include a process for reporting the occurrence of serious incidents of abuse and neglect in aged care, and for oversight of provider responses to such incidents. The recommended serious incident response scheme builds on the existing requirements for reporting allegations of abuse in the Aged Care Act, while also drawing on existing and proposed schemes for responding to abuse in the disability sector.

The existing scheme for reporting assaults

4.43     Under the current system, approved providers are required to report certain allegations of abuse in respect of residential care recipients. ‘Reportable assaults’ are defined as ‘unlawful sexual contact, unreasonable use of force, or assault specified in the Accountability Principles and constituting an offence against a law of the Commonwealth or a State or Territory’.[75]

4.44     An approved provider must report an allegation, or a suspicion on reasonable grounds, of a ‘reportable assault’ on a care recipient to police and the Department of Health within 24 hours.[76]

4.45     So-called ‘resident-on-resident’ incidents are exempt from reporting, where the resident alleged to have committed the offending conduct has a pre-diagnosed cognitive impairment, provided the approved provider implements arrangements to manage the person’s behaviour within 24 hours. [77]

4.46     While diverging as to the desired reform approach, most stakeholders were critical of the existing scheme.[78] Aged and Community Services Australia (ACSA) called for a review of the reportable assaults requirement, arguing that ‘there is little evidence that the reporting requirement to the Australian Department of Health has been effective’.[79] Leading Age Services Australia (LASA) echoed this criticism, submitting that ‘it could be contended that those requirements have made little or no difference to the safety of residents … [They] appear to only support red tape and bureaucratic processes, rather than promote safe quality care’.[80]

4.47     The reportable assault provisions place no responsibility on the provider other than to report an allegation or suspicion of an assault.[81] The Records Principles 2014 (Cth) require providers to keep records of reportable assaults, containing:

  • the date when the approved provider received the allegation, or started to suspect on reasonable grounds, that a reportable assault had occurred;

  • a brief description of the allegation or the circumstances that gave rise to the suspicion; and

  • information about whether a report has been made to a police officer and the Department; or whether no report has been made because the resident-on-resident exemption applies.[82]

4.48     Significantly, no obligation is placed on the provider to record any actions taken in response to an incident.

4.49     The ALRC heard conflicting reports about any subsequent actions taken by the provider or the Department following the making of a report. The Department of Health’s submission to the Inquiry stated that it ‘may take regulatory action if an approved provider does not … have strategies in place to reduce the risk of the situation from occurring again’.[83] However, there is no further publicly available information regarding how the Department makes an assessment about the suitability of any strategies implemented by the provider.[84]

4.50     ACSA submitted that there was little value in the existing requirement to report to the Department, ‘when no action is taken by the agency you are reporting to’. To illustrate its point, ACSA noted that

on 16 December 2016 in their Information for Aged Care Providers 2016/24, the Department of Health provided the following advice:

‘Compulsory reporting of assaults and missing residents over the holiday period. The compulsory reporting phone line will not be staffed from 3 pm Friday 23 December 2016 to 8.30 am Tuesday 3 January 2017. Providers are still required to report within the legislative timeframe. Providers may leave a message but are encouraged to use the online reporting forms during this period’.[85]

4.51     UnitingCare Australia submitted that the ‘process of making a report does not in itself trigger any actions. It is up to providers to implement processes to address risks and negotiate solutions’.[86]

4.52     LASA, by contrast, said that the Department did become involved in oversight of provider responses to reportable assaults:

When an investigation occurs at the local level the Departmental Officers often require a full report on what actions are taken, and their outcome. This can lead to involvement by the [Australian Aged Care Quality Agency] and or the Complaints Commissioner and compliance action by the [Department of Health].[87]

4.53     In 2015–2016, there were 2,862 notifications of ‘reportable assaults’.[88] Of these reports, 2,422 were recorded as alleged or suspected unreasonable use of force, 396 as alleged or suspected unlawful sexual contact, and 44 as both.[89] This represents an incidence of reports of suspected or alleged assaults of 1.2% of people receiving permanent residential care during that period.[90]

4.54     There is little information available beyond these figures—meaning that, as LASA summarised: ‘what we do not know is the outcome of these reports, whether the allegations were found to have had substance, what local actions were put in place, and if any convictions occurred as a result of Police action’.[91]

A focus on response to serious incidents

4.55     The ALRC considers that there should be a new approach to serious incidents of abuse and neglect in aged care. The emphasis should change from requiring providers to report the occurrence of an alleged or suspected assault, to requiring an investigation and response to incidents by providers. This investigation and response should be monitored by an independent oversight body. The recommended design of the scheme is informed by the ‘disability reportable incidents scheme’ (DRIS) for disability services in NSW—overseen by the NSW Ombudsman[92]—and the serious incident reporting scheme planned for the National Disability Insurance Scheme (NDIS).[93]

4.56     The ALRC agrees with the NSW Ombudsman’s submission that

a reporting and independent oversight system is an important and necessary component of a comprehensive framework for preventing and effectively responding to abuse, neglect and exploitation of more vulnerable members of the community … and is fundamental to enabling a genuinely person-centred approach to supports.[94]

4.57     In the context of the NDIS, the Department of Social Services (Cth) has stated that a serious incident should

trigger a response that seeks to address the wellbeing and immediate safety of the people involved, and takes the opportunity to review and improve operational practices as appropriate to reduce the risk of further harm. Both the response and the evaluation should focus on the impact of the incident on the client, and the outcome (in terms of client wellbeing) that was achieved as a result of any remedial action.[95]

4.58     There was significant support for a new scheme.[96] A number of stakeholders explicitly advocated for an improved focus on responses to serious incidents. For example, the National Older Persons Legal Services Network supported a scheme that could provide a response to serious incidents on both a systemic and individual basis:

The scheme needs to balance and address two important interests. Firstly, the interests of the individual user. Secondly the interests of the aged care system. … Accountability to each through the reporting process is crucial to its success. For example, a reported incident must provide a critical response to those involved (victim and perpetrator), it must translate into accountability outcomes through systemic accountability including service standards, accreditation etc.[97]

4.59     The Australian Research Network on Law and Ageing (ARNLA) made similar observations and noted that the ‘emphasis here should be on a proportionate response, recognising that random and accidental harmful incidents occur in relation to which a regulatory response may be inappropriate’.[98]

4.60     A new scheme would also improve information available about the incidence of abuse and neglect in aged care. A number of stakeholders called for a scheme that could provide more reliable information. For example, Aged Rights Advocacy Service submitted that it

would like to see further information about ‘compulsory reporting’ in addition to the current reports in residential aged care including the result of the outcome of such a report [and] the number of older people interviewed by the relevant police jurisdiction.[99]

Approved providers’ responsibilities

4.61     The ALRC recommends that the provider be required to report both an allegation or suspicion of a serious incident and any findings or actions taken in response to it.[100]

4.62     The appropriate response will vary according to the specific incident, but in all cases will require a process of information gathering to enable informed decisions about what further actions should be taken.[101] Significantly, the ALRC has not recommended that providers be required to report an incident to police.[102] In part, this is due to the expanded scope of the definition of serious incident, discussed further under Recommendation 4–3. It also reflects an approach that requires an approved provider to turn its mind to the response required in the circumstances.

4.63     In some cases an allegation will relate to criminal conduct, and should be reported to police. In such cases, a provider’s key initial responsibility should be to facilitate the police investigation. However, where police do not pursue a matter, this should not be the end of a provider’s responsibilities. As the Office of the Public Advocate (Qld) noted:

aged care providers may misinterpret police taking no action on a reportable incident as meaning they have no further responsibilities in responding to the incident. Police taking no further action in relation to an incident may, however, simply mean that the evidence gathered does not meet the threshold for a criminal prosecution. It may be that, while not strictly criminal in nature, these incidents reflect more subtle forms of elder abuse that are caused by mistakes and poor staffing practice, poorly designed organisational systems and/or insufficient resourcing.[103]

4.64     Where an allegation relates to a staff member, the NSW Ombudsman has reported that, under the DRIS,

even where there may not be a remedy available via the criminal justice system … there can still be effective and appropriate responses. In this regard, we note that in one-third of all matters involving abuse and/or mistreatment by a staff member towards a client, there has been a finding of unacceptable behaviour on the part of the involved employee, and a range of management action has been taken.[104]

4.65     In 91% of matters, the NSW Ombudsman said, ‘action has been taken to improve the support and circumstances of the victim’.[105]

4.66     The ALRC considers that the timeframe for reporting a serious incident should be extended from the requirement for notification within 24 hours that exists under the reportable assaults scheme. A requirement to notify the oversight body as soon as possible, and no later than 30 days may be more appropriate to allow a provider to demonstrate a considered response to an allegation or suspicion of a serious incident.

Is compliance with existing quality standards enough?

4.67     Some of those stakeholders opposed to a serious incident response scheme did so on the basis that evidence of compliance with accreditation standards was sufficient to demonstrate that appropriate responses to serious incidents will occur.[106]

4.68     For example, ACSA submitted that the ‘Australian Government already has in place a quality and accreditation framework to provide assurance to care recipients of aged care services that aged care providers achieve a standard of quality and focus on quality improvement’.[107]

4.69     Many approved providers will have appropriate systems in place to respond to serious incidents. However, current accreditation may be insufficient to guarantee that all incidents in the intervening period will be responded to appropriately. For example, the review of the Oakden Older Persons Mental Health Service found there to be no established process for determining, escalating and reporting possible incidents of elder abuse.[108]

4.70     Even where there are suitable systems in place, the ALRC considers it important to require contemporaneous scrutiny and oversight of the particular responses made to each seriousincident. Serious incident reporting could be designed to integrate with providers’ existing internal processes for responding to serious incidents so as to minimise additional administrative burden.

Oversight body’s role and powers

4.71     The oversight body’s role should be to monitor and oversee the approved provider’s investigation of and response to serious incidents. It should also be empowered to conduct investigations of such incidents. While it is important that the oversight body have powers of investigation, the ALRC anticipates that direct investigations by the oversight body would not be routine. Rather, its focus would be on overseeing providers’ own responses to serious incidents, and building the capacity of providers in doing so.

4.72     The oversight body should have the power to make recommendations, as well as to publicly report on any of its operations, including in respect of particular incidents or providers.

4.73     The NSW Ombudsman’s role in overseeing the DRIS provides an instructive model for the role and powers of the oversight body. The DRIS requires the head of an agency covered by the scheme to notify all reportable incidents to the NSW Ombudsman within 30 days of becoming aware of the allegation. The Ombudsman considers whether the agency’s investigation into the incident has been properly conducted and whether appropriate action to manage risk has been taken. The Ombudsman may monitor the investigation and, where an incident is the subject of monitoring, the agency is required to report the results of investigation and risk management action taken.[109]

4.74     The NSW Ombudsman has a range of powers to enable it to discharge its oversight and monitoring functions, including the power to: require the production of documents or statements of information; enter and inspect premises; make or hold inquiries; make recommendations; and to report to Parliament and to the public.[110]

Who should have the oversight function?

4.75     In the Discussion Paper, the ALRC proposed that the Complaints Commissioner be responsible for oversight of the scheme. This proposal received a mixed response from stakeholders. The ALRC remains of the view that the Complaints Commissioner is the most appropriate fit for the scheme in the existing aged care ‘regulatory framework triangle’,[111] and that there are advantages—both in terms of resources and expertise—in having the functions carried out by an aged care regulatory body rather than an external agency.[112]

4.76     However, beyond recommending that the function sit with an independent body, the ALRC does not make a specific recommendation about where the scheme should be located. None of the current ‘regulatory triangle’ agencies are an ideal fit for the proposed scheme. In part, this is the result of the way that reforms to aged care have been implemented.

4.77     The Productivity Commission’s reform package included a recommendation that policy and funding roles be separated from the regulation of aged care. It recommended that the (then) Department of Health and Ageing should be tasked with providing policy advice in aged care, but that a new, independent, regulatory agency— the Australian Aged Care Commission—should be established, with statutory offices for standards and accreditation and complaints handling located within it.[113] This recommendation was not adopted.

4.78     The Department of Health currently receives reports of reportable assaults, but is not an independent body. The ALRC considers that its mix of responsibility for policy, funding and compliance is not best suited to the monitoring and oversight role recommended in this Report.[114] However, Departmental officers do have a range of existing monitoring powers that may be amenable to harmonising with the ALRC’s recommendations.[115]

4.79     The Australian Aged Care Quality Agency accredits and audits aged care providers, but is focused on systemic issues in aged care. A serious incident may not be an indicator of systemic risk, but should still be investigated and responded to by the provider with appropriate oversight.

4.80     The Complaints Commissioner is focused on conciliation and resolution of complaints as well as educating service providers about responding to complaints.[116] Some submissions emphasised the importance of distinguishing clearly between complaints and reportable incidents.[117] Others suggested that the Complaints Commissioner’s focus on local resolution of complaints ‘may not be compatible with a role that investigates potentially criminal acts that are currently investigated by appropriate authorities’.[118]

4.81     The Complaints Commissioner can exercise a range of powers when working to resolve complaints, and may commence own-initiative investigations.[119] The Commissioner may also appoint ‘authorised complaints officers’ who may exercise a range of powers.[120]

4.82     Comparable models have located a complaints handling function and a serious incident or reportable conduct function in the one body—as with the NSW Ombudsman’s functions in relation to children and disability. The proposed NDIS Complaints Commissioner under the NDIS Quality and Safeguarding Framework will have responsibility for handling complaints as well as reportable serious incidents.[121] The Australian Health Practitioner Regulation Agency (AHPRA) handles both voluntary complaints and mandatory notifications about health practitioners.[122]

Definition of serious incident

Recommendation 4–3               In residential care, a ‘serious incident’ should mean, when committed against a care recipient:

(a)     physical, sexual or financial abuse;

(b)     seriously inappropriate, improper, inhumane or cruel treatment;

(c)     unexplained serious injury;

(d)     neglect;

unless committed by another care recipient, in which case it should mean:

(e)     sexual abuse;

(f)      physical abuse causing serious injury; or

(g)     an incident that is part of a pattern of abuse.

Recommendation 4–4               In home care or flexible care, ‘serious incident’ should mean physical, sexual or financial abuse committed by a staff member against a care recipient.

Recommendation 4–5               An act or omission that, in all the circumstances, causes harm that is trivial or negligible should not be considered a ‘serious incident’.

4.83     These recommendations extend the incidents required to be reported under the current regime. The effect of the recommendations is to:

  • require home care providers to report and respond to serious incidents, when committed by staff (home care providers are currently exempt from the requirements relating to ‘reportable assaults’);

  • extend the types of incidents to be reported to include financial abuse—and, in residential care, seriously inappropriate, improper, inhumane or cruel treatment, as well as unexplained serious injury and neglect;

  • require the reporting of instances of resident-on-resident violence in residential aged care, where they reach a higher threshold of seriousness.

4.84     These are serious incidents, and it is appropriate to require reporting and response by providers to them.[123] The ALRC also recommends that acts or omissions causing harm that is trivial or negligible not be considered ‘serious incidents’, to respond to concerns that time and resources would be unduly used to respond to and oversee the management of non-serious matters if a reporting regime applied to them.

How broad or narrow should the definition be?

4.85     As the NDIS Quality and Safeguarding Framework noted, while

a broad definition [of serious incident] could enable information about lower-level events to be used as a warning system, employing a narrower definition will ensure that the new system is not overloaded with reports and the most serious incidents can be investigated’.[124]

4.86     The ALRC considers that ‘serious incident’ should not be too broadly defined so that the recommended scheme does not unduly consume time and resources. The definition of incidents that must be reported should be subject to limited extension, but the ALRC also recommends that it be clear that acts or omissions causing trivial or negligible harm will not fall within the scheme.

4.87     Many stakeholders supported a broad definition of reportable conduct.[125] A number were concerned to include incidents committed by anyone when in residential aged care, not just staff.[126]

4.88     The ALRC has recommended that some or all of the following incidents be serious incidents, depending on the setting and the person who is alleged to be responsible.

4.89     Physical, sexual and financial abuse: the term abuse is intended to capture a broader range of conduct than might constitute a criminal offence. The ALRC recommends that this terminology be used to avoid the need for providers, in determining if particular conduct amounts to a serious incident, to engage in technical legal analysis of whether the relevant conduct amounts to a criminal offence.[127] It is also intended to emphasise that the onus for responding to these incidents does not solely lie with police.[128]

4.90     Seriously inappropriate, improper, inhumane or cruel treatment: this is a flexible category intended to capture a range of serious abuse.[129] Examples that might fall into this category include a failure to provide an appropriate form of communication for someone who is communication impaired—described as ‘equivalent to “gagging someone”’ by Speech Pathology Australia;[130] and the practice reported in the Oakden Report of staff leaving ‘the consumer on the floor in considerable distress if they had formed a view that intervening to assist the person was not needed immediately’, described as ‘among the most abhorrent approaches to providing care to severely disturbed consumers that any of the Review had encountered in well over 110 years of collective practice’.[131]

4.91     Unexplained serious injury: this is intended to ensure that there is appropriate investigation of the circumstances leading to such an injury, appropriate clinical care provided, and appropriate communication with the injured person and their family members or representatives.

4.92     Neglect: many of the concerns in this Inquiry related to neglect of aged care residents. The NSW Ombudsman described the level of neglect that warrants treatment as a serious incident as:

  • intentional or reckless failure to adequately supervise or support a client that also involves a gross breach of professional standards, and has the potential to result in death or significant harm; or

  • grossly inadequate care that involves depriving a client of the basic necessities of life.[132]

4.93     Examples received by this Inquiry that would meet this threshold include reports of advanced pressure sores said to be caused by failures in wound care.[133]

4.94     Guidance should be developed to assist providers with understanding what constitutes abuse, with a view to building organisational cultures that do not condone abusive conduct.[134]

Serious incidents in home care

4.95     The ALRC recommends that the serious incident response scheme should extend to home or flexible care, where the alleged perpetrator is a staff member of an approved provider. Given the increasing emphasis on provision of aged care in the home, incidents in home care alleged to be committed by staff should be reportable, and providers should be required to demonstrate that a suitable response has occurred.[135]

4.96     Concerns may exist about the abuse or mistreatment of an older person receiving home or flexible care by someone other than an aged care worker. The ALRC considers that these should be reported to other relevant authorities—for example, police or to adult safeguarding agencies (as recommended in Chapter 14)—where appropriate.[136] However, the ALRC does not recommend that these should be reportable within the aged care regulatory framework.

Resident-on-resident incidents in aged care should be serious incidents

4.97     Under the existing reportable assaults scheme, there are exemptions to reporting so-called ‘resident-on-resident’ incidents, where the resident alleged to have committed the offending conduct has a pre-diagnosed cognitive impairment, provided the approved provider implements arrangements to manage the person’s behaviour within 24 hours.[137]

4.98     The ALRC recommends that incidents of violence between residents in residential aged care should be treated as serious incidents, whether or not the person committing the act is cognitively impaired. This approach better calibrates the level of oversight appropriate to the management of violence between residents, and is consonant with a sector-wide commitment to ensuring that aged care recipients live in an environment free of violence and abuse. Responses to such incidents should be contemporaneously monitored, particularly where such responses may involve the use of restrictive practices.[138]

4.99     Resident-on-resident sexual abuse, and physical abuse causing serious injury should be treated as serious incidents. The ALRC also recommends that an incident committed by a care recipient, that forms part of a pattern of abuse (whether or not committed against the same or different residents), should be considered a serious incident.[139]

4.100  A number of stakeholders supported removing the existing exemption.[140] The Office of the Public Advocate (Vic), for example, asserted that the ‘exception to mandatory reporting of assaults under these conditions is too lenient’.[141]

4.101  The NSW Nurses and Midwives’ Association supported the removal of the exemption, noting that its members were ‘extremely concerned that the daily resident-on-resident abuse they witness is already unreported. We must consider that people living in [residential aged care] are unable to exit that environment and the impact of the abusive act is therefore much higher’.[142]

4.102  Over the course of this Inquiry, a number of fatal assaults on residents by other residents with cognitive impairment have been publicised.[143] A 2015 systematic review concluded that

resident-to-resident aggression (RRA) is an understudied form of elder abuse in nursing homes … [W]e must continue to grow our knowledge base on the nature and circumstances of RRA to prevent harm to an increasing vulnerable population of nursing home residents and ensure a safe working environment for staff.[144]

4.103  Some stakeholders argued that the current requirements to keep appropriate records of resident-on-resident incidents and of relevant behaviour management plans were sufficient.[145] Particular concern exists in relation to the volume of reports of resident-on-resident incidents that may be required as a result of this reform.[146] Alternatively, that there are high numbers of incidents of resident-to-resident aggression is itself an argument for greater oversight of responses by providers to these incidents to ensure the safety of all residents. The higher threshold of seriousness for physical abuse recognises that removing the existing exemption will result in an additional reporting burden.[147]

4.104  HammondCare, for example, was opposed to removing the exemption, arguing that education and advice programs were better suited to dealing with resident-on-resident violence. However, it observed that, in practice, it would report resident-on-resident violence of the kind the ALRC specifies in Recommendation 4–3 as serious incidents, notwithstanding that this was not strictly required under existing legislation.[148]

4.105  The ALRC agrees that education and advice are important in managing and preventing resident-on-resident violence, but considers that an explicit requirement to respond and report to these incidents can prompt appropriate access to such education and advice. Dementia-specific services, like HammondCare, may be the focus of less intensive oversight of reported incidents where they can consistently evidence robust systems to assess and respond to such instances of violence, and minimise risk of recurrence.

4.106  The response to resident-on-resident incidents where the person using violence has cognitive impairment may be different from, for example, incidents involving staff members. Reporting to police would generally not be warranted. As the NSW Ombudsman noted in relation to the DRIS, in such cases the emphasis is likely to be on ‘managing and reducing risks, including identifying the cause of the abuse, and the action that needs to be taken (and the support that needs to be provided) to prevent recurrence’.[149] The NSW Nurses and Midwives’ Association similarly observed that the response to these incidents should ‘address underlying causes, seek appropriate solutions and monitor their implementation for effectiveness’.[150]

Other elements of the serious incident response scheme

Recommendation 4–6               The serious incident response scheme should:

(a)         define ‘staff member’ consistently with the definition in s 63-1AA(9) of the Aged Care Act 1997 (Cth);

(b)         require the approved provider to take reasonable measures to require staff members to report serious incidents;

(c)         require the approved provider to ensure staff members are not victimised;

(d)         protect informants’ identities;

(e)         not exempt serious incidents committed by a care recipient with a pre-diagnosed cognitive impairment against another care recipient; and

(f)          authorise disclosure of personal information to police.

4.107  The ALRC recommends that the serious incident response scheme incorporate a number of existing definitions and protections operative in relation to the current provisions for reporting assaults in aged care.

4.108  Staff member is defined in s 63-1AA(9) of the Aged Care Act to mean ‘an individual who is employed, hired, retained or contracted by the approved provider (whether directly or through an employment or recruiting agency) to provide care or other services’. The ALRC recommends that this definition be utilised for the serious incident response scheme.

4.109  The current reportable assault scheme requires the approved provider to take reasonable measures to require staff members to report serious incidents;[151] to ensure staff members are not victimised;[152] and to protect informants’ identities.[153] These requirements should be a feature of the serious incident response scheme.

4.110  Recommendation 4–6(e) is intended to put beyond doubt that the serious incident response scheme should not retain the current, limited, exemption from reporting serious incidents committed by a care recipient with a pre-diagnosed cognitive impairment on another care recipient, discussed above.

4.111  The ALRC also recommends that it be made clear that disclosure of personal information to police in relation to the response to serious incidents is lawful and appropriate. Given that the ALRC does not recommend that all allegations or suspicions of serious incidents be reported to police, this recommendation is intended to address concerns that such reporting would breach requirements relating to the protection of personal information without being ‘required or authorised’ by the Aged Care Act.[154]