Compulsory reporting of abuse and complaint handling

11.36   The ALRC proposes the introduction of a reportable incident scheme in aged care, modelled on New South Wales’ disability reportable incidents scheme, and that this scheme replace the current statutory compulsory reporting scheme. Under the proposed scheme, approved providers would be required to report a broader range of abusive conduct to the Complaints Commissioner. The scheme should sit alongside existing complaint mechanisms, and strengthen the system’s responses to complaints (including compulsory reports) of abuse and neglect.

The current requirements for reporting allegations of abuse

11.37   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 …

staff member of an approved provider means 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.^[64]

11.38   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.^[65]

11.39   The dual reporting requirement has been described as follows:

The purpose of the police involvement is to assess whether criminal activity has occurred and if charges need to be laid. The police are the best and most appropriate authorities to make that judgment. The purpose of reporting to the Department is for us to consider whether the approved provider has actually met its responsibilities under the aged-care legislation.^[66]

11.40   There are exemptions to reporting ‘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.^[67]

11.41   Approved providers must also take reasonable steps to ensure that staff know their reporting obligations, and take reasonable measures to protect those reporting reportable assaults.^[68]

11.42   In 2014–2015, prior to the current complaints scheme being implemented, there were 2,625 notifications of ‘reportable assaults’.^[69] Of these reports, 2,199 were recorded as alleged or suspected unreasonable use of force, 379 as alleged or suspected unlawful sexual contact, and 47 as both.^[70] This represents an incidence of reports of suspected or alleged assaults of 1.1% of people receiving permanent residential care during that period.^[71]

11.43   There is little information beyond these numbers that gives any more detail on these incidents, including who the alleged perpetrator was, what action was taken in response to the report, or the outcome.

The current framework for complaint handling

11.44   The complaint handling process with respect to aged care incorporates two aspects. First, approved providers are required under the Aged Care Act to have a ‘complaint resolution mechanism’, and to use the mechanism to address complaints made by, or on behalf of, a care recipient.^[72] Secondly, complaints can be made to the Complaints Commissioner.

11.45   The Complaints Commissioner submitted to the ALRC that, in the first six months of 2016, her office received just 113 complaints identifiable with the keyword ‘abuse’, representing 2% of all complaints received by her office in that period.^[73]

11.46   Reportable assaults are not automatically treated as ‘complaints’. The Complaints Commissioner can receive complaints of ‘mandatory reports’ (or reportable assaults) referred by the Department of Health,^[74] however it is unclear how often, if ever, this occurs.

Gaps in the current frameworks

11.47   Both the reportable assault scheme and the complaints scheme enable reports of abuse and neglect in aged care to be brought to light, by providing mechanisms where data relating to complaints of abuse against older people receiving Commonwealth funded aged care is captured. There are, however, gaps in how the two schemes operate together to respond to incidents of abuse, and how they function to safeguard care recipients.

11.48   First, an approved provider is not required to take any ‘action’ in response to a reportable assault, other than to report it and maintain appropriate records. This means that a provider can satisfy the regulatory compliance obligations without performing any sort of investigation or review into the incident. There are quality standards that providers are required to maintain, but these focus more broadly on quality of care provided, rather than a provider’s response to a particular incident.

11.49   Second, reportable assaults are not automatically treated as ‘complaints’, and therefore the response of approved providers to those incidents is not monitored. Indeed, the Complaints Commissioner would have to rely on a referral of information from either a victim, another concerned party (for example, a family member or care worker) or the Department before that office would know about a reportable assault having occurred.

Approved provider response to reportable assaults

11.50   The Department of Health describes its role as ‘confirming that reporting is made within the specified timeframe; that there are appropriate systems in place for reporting; and that appropriate action has been taken’.^[75] It states that it ‘may’ take compliance action where approved providers do not meet their obligations under the Act.

11.51   The Department’s unequivocal position is that ‘investigation of alleged assault is the responsibility of the police who will determine whether the incident is criminal in nature and what further action is required’.^[76]

11.52   It is concerning that there is no requirement that an approved provider perform any type of investigation into incidents concerning care recipients in their care. There are likely to be many matters where police determine not to pursue a criminal investigation, yet where there may still be significant concerns and risks arising from the incident that require investigation and analysis to safeguard and protect those in care—both the alleged victim and other care recipients. That an incident is unlikely to result in a criminal investigation or prosecution ought not preclude it from being investigated and examined by the agency responsible for providing care to the alleged victim. There may still be significant risks to the victim or others that could be identified and responded to if an appropriate investigation were performed.

11.53   The ALRC acknowledges the comments of some approved providers that ‘responsible’ providers will take appropriate action in response to reportable assaults.^[77] However, given the serious nature of the incidents captured by the scheme; the approved providers’ duty of care owed to, and level of control over the day to day lives of, care recipients; the vulnerability of many of those care recipients; and the potential for conflicts of interest in relation to the management of reportable assaults, there is a strong argument supporting the establishment of a scheme that would function to increase accountability, transparency and organisational responses to serious incidents of abuse of older people.

Treating reportable assaults as complaints

11.54   Proposal 11-1 to 11-3 provide a framework that brings together the aged care complaints function and an oversight function for reportable incidents under the jurisdiction of the Complaints Commissioner.

11.55   The complaints scheme has already had several incarnations. At one time the Act provided for a ‘Complaints Investigation Scheme’ (CIS). The CIS was a broad complaints scheme and it was not restricted to responding to ‘reportable assault’ matters. Unlike the current scheme, it was not independent of the Department of Health.

11.56   The Aged Care Complaints Scheme replaced the CIS in 2011, following a review, that had emphasised the importance of having an investigatory function to resolve complaints, that could operate alongside a resolution or mediation–focused mechanism:

We would also note that the current complaints scheme embodies significant reforms on the earlier scheme. Many of these reforms are critical to achieving positive outcomes for complainants and for systemic improvements in service delivery in aged care along with identifying and rectifying matters of serious concern. The move away from mediation towards investigation has been a positive step. At the same time, as noted above, we would see benefits in ensuring that the shift away from mediation is not seen as a rejection of individual complaints resolution as a legitimate dimension of the scheme.^[78]

11.57   When the legislation establishing the independence of the Complaints Commissioner was passed, part of the rationale was said to be that ‘the change will result in a separation of complaints management from the funder and regulator, which reflects best practice in complaints handling’.^[79]

11.58   However as noted, ‘reportable assaults’ are not required to be notified to the Complaints Commissioner. The Commissioner has said that the focus of her role is on ‘ensuring service providers have acted appropriately to: ensure any affected residents are safe; find out what happened; ensure it doesn’t happen again; and the right people are told’.^[80]

11.59   The ALRC considers that such incidents ought to be responded to as ‘complaints’. There is a strong argument for incidents of such a serious nature (those that are defined as a ‘reportable assault’) to be required to be reported in a way that triggers an appropriate investigation and response (by the approved provider) that is able to be monitored or overseen by an independent complaints–handling body that can also support and advise the provider to ensure best practice in the management of the incident.

11.60   The ALRC is of the view that there is significant gap in the legislative protection afforded under the current reporting regime, and notes that it was designed to offer ‘safeguards to older people’ receiving aged care. As observed by the NSW Ombudsman

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 people members of the community … and is fundamental to enabling a genuinely person-centred approach to supports.^[81]

11.61   To address these gaps, the ALRC proposes that a reportable incident scheme be established in aged care.

Reportable incidents

11.62   The ALRC proposes the establishment of a national reportable incidents scheme designed to respond to concerns raised about the limited scope of the current reporting regime, and the lack of transparency and accountability in responses to reportable assaults. The scheme would replace the existing reporting regime in the Aged Care Act and, to be effective, it will be critical that adequate investment and resourcing is allocated to ensure the scheme can function effectively.

11.63   The proposed reportable incident scheme is modelled on the ‘disability reportable incidents scheme’ (DRIS), established by Part 3C of the Ombudsman Act 1974 (NSW).^[82]

11.64   The ALRC acknowledges the concerns raised by stakeholders regarding the compulsory reporting regime,^[83] and has considered the expanded scope of conduct captured by the DRIS, and the distinction between certain categories of incident under that scheme. The benefits of reportable conduct schemes have been acknowledged, including their ability to improve systemic responses across a sector.^[84]

11.65   The DRIS provides an instructive model upon which to base a reporting regime for aged care, as it captures people who are closer to the cohort of people the subject of this Inquiry, that is, older people with disability, and draws on 16 years of experience of the employment related child-protection function provided by Part 3A.^[85]

11.66   The NSW Ombudsman has said that it has received ‘consistent feedback’ that providers subject to the DRIS welcome the introduction of the scheme, and have embraced the opportunity to receive feedback and guidance on best practice in preventing and responding to serious incidents.^[86]

11.67   The proposed scheme sits in the Aged Care Act, however there is a cohort of older people that receive aged care and support from services that are not in receipt of federal funding,^[87] and are therefore not cared for by ‘approved providers’ covered by the Aged Care Act. There is an argument that it would be possible for the scheme to apply more broadly, by linking it not to the Aged Care Act, but rather establishing a nexus with Australia’s international obligations under various instruments and relying on the external affairs power.^[88]

11.68   Australia has a number of obligations under various instruments, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of Persons with Disabilities and the International Convention on Civil and Political Rights. These obligations include, for example, taking ‘all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities … from all forms of exploitation, violence and abuse’.^[89]

11.69   It would be preferable to cast a wide net to ensure safeguards are extended to all older people receiving aged care, irrespective of whether the provider is regulated under the Aged Care Act. However, the ALRC’s preliminary view is that it would be more appropriate, and offer more certainty, to establish the scheme under existing Commonwealth legislation, where an existing policy position supporting compulsory reporting already exists specifically to safeguard those receiving care under the Act. After evaluation, consideration could be given to potentially expanding into other areas in the future.

The independent oversight and monitoring role

11.70   A fundamental feature of the scheme is the independence of the oversight and monitoring body. Review mechanisms that are independent ensure greater accountability and transparency: that decision making by the review body is based on relevant information and facts, and free from the influence of extraneous factors which ought not be considered. Such factors might include political or social pressures or, in the context of schemes like the DRIS and in the aged care sector, real or potential conflicts of interest. A typical example might arise where an organisation is investigating an allegation in respect of one of its staff members, or the standard of service being provided.

11.71   The DRIS requires the head of an agency covered to notify all reportable incidents to the NSW Ombudsman within 30 days of becoming aware of the allegation. The Ombudsman, on receipt of the notification, will determine 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, to the Ombudsman.

11.72   The Ombudsman reported that the DRIS legislation ‘requires and enables’ it to

receive and assess notifications concerning reportable allegations or convictions

scrutinise agency systems for preventing reportable incidents, and for handling and responding to allegations of reportable incidents

monitor and oversight agency investigations of reportable incidents

respond to complaints about inappropriate handling of any reportable allegation or conviction

conduct direct investigations concerning reportable allegations or convictions, or any inappropriate handling of, or response to, a reportable incident or conviction

conduct audits and education and training activities to improve the understanding of, and responses to, reportable incidents, and

report on trends and issues in connection with reportable incident matters.^[90]

11.73   The DRIS has a number of elements that operate together to form a necessary component of a safeguarding framework. The ALRC proposes that these elements form the foundation of the aged care model. These elements include:

• an independent oversight and monitoring body;

• a definition of ‘reportable assault’ that captures an appropriate scope of conduct, but distinguishes between assaults perpetrated by those with cognitive impairment, and other incidents;

• powers to enable effective oversight and monitoring, including powers to compel production of documents, to provide information, and to conduct ‘own motion’ investigations; and

• information sharing provisions.

11.74   The ALRC proposes that the Complaints Commissioner be the independent oversight and monitoring body. The Complaints Commissioner already has jurisdiction to resolve complaints about aged care services, as well as to educate service providers about responding to complaints.^[91]

11.75   The Commissioner noted the importance of working cooperatively with complainants and providers to uphold the rights of care recipients, and described the focus of her office as ‘resolution rather than sanctions on individuals or aged care services’.^[92]

Powers

11.76   The Complaints Commissioner can exercise a range of powers when working to resolve complaints, including the power to commence own-initiative investigations.^[93] The Commissioner may also appoint ‘authorised complaints officers’. These officers are able to exercise a number of powers, including the power to search premises, take photographs, inspect documents and to ask people questions.^[94] However they are unable to enter the premises without the consent of the occupier.^[95]

11.77   The NSW Ombudsman has substantial powers conferred upon it under the Ombudsman Act 1975 (NSW). These include powers to require the production of documents, to require statements of information,^[96] to enter and inspect premises,^[97] to hold inquiries,^[98] to make recommendations,^[99] and to report to Parliament and to the public.^[100] These powers enable it to effectively oversee and monitor agencies that are subject to the scheme.

11.78   Where the Complaints Commissioner, upon assessing a complaint, forms a view that an approved provider is not meeting their responsibilities under the Act, the Commissioner may issue a direction that the provider make certain changes. Where a provider fails to comply with the direction, the Commissioner may refer the matter to the Department to consider compliance action,^[101] or to the Quality Agency to consider any systemic issues identified.^[102]

11.79   It is worth noting that the NSW Ombudsman retains a complaints mechanism that relates to disability service providers other than the compulsory reports required under the DRIS. The practical effect is that, while anyone may make a complaint under the complaints function, there is a requirement for service providers to notify certain serious incidents under the DRIS.

11.80   The impact on the number of incidents was evident within the first eight months of the DRIS’ operation, with the NSW Ombudsman reporting that the DRIS received 437 notifications under the scheme.^[103] This represents approximately 50 notifications per month. Deputy Ombudsman, Steve Kinmond, noted the significant increase in reports emanating from the DRIS when compared to those coming through the complaints mechanism that is also managed by the NSW Ombudsman:

Comparing the data we have in relation to complaints of abuse and neglect, and of course that is one of the functions we perform as compared to the notification of abuse and neglect matters that we have received in relation to the reportable incidents scheme, there is an over 10 times increase in the number of abuse and neglect matters that we receive from this mandatory reporting system than what we receive under the complaints system.^[104]

11.81   Mr Kinmond asserted that this provided ‘a compelling case for legislative mandatory reporting for certain types of incidents’.^[105]

11.82   Combining complaints and compulsory reporting would address a gap identified by some stakeholders, namely that reportable assaults are not necessarily treated as complaints, and responded to appropriately.

11.83   The current complaints system was said to be unable to respond to serious complaints. Mr Rodney Lewis, a solicitor with over 15 years of legal practice in the area of elder law, suggested there is a ‘good case’ for arguing that the current complaints system is ‘inadequate for those whose complaints are serious and not amenable to settlement by mediation or the limited pathways which the system offers’.^[106] Quality Aged Care Action Group Inc asserted that there is a ‘gap between what ‘should’ happen and what actually does’.^[107]

11.84   The safeguards afforded by the Charter of Residents Rights and Responsibilities were also criticised because the Charter has no ‘enforcement or compliance mechanisms and is therefore exhortatory’.^[108] Townsville Community Legal Service, in recognising the Charter rights, commented that

whether this right [to live free from abuse and neglect] truly exists depends on how it translates into the accreditation and quality regime for aged care providers. There is a disconnect here between what the Charter says and the outcomes it produces.^[109]

11.85   Consistent with the DRIS model, the ALRC does not propose that the Complaints Commissioner have any enforcement powers with respect to oversight and monitoring. Instead, the Commissioner 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.

11.86   The ALRC notes the concern of the Seniors Rights Service that the Complaints Commissioner is a ‘toothless tiger’,^[110] but suggests that there is greater potential for systemic reform through the proposed approach. It has been said that

a truly remedial institution may not be best served by ‘teeth’… an order, grudgingly accepted and implemented can only change one result. A recommendation, if it is persuasive and compelling, can change a mindset.^[111]

11.87   The dual functions of complaint resolution and independent oversight and monitoring of internal complaint handling offers many benefits. It builds on the existing expertise of the Complaints Commissioner in relation to aged care; utilises and builds upon the existing complaints function; enables information captured across both functions to be utilised to develop an intelligence profile of approved providers and aged care staff and thus informs more comprehensive risk assessment and management of staff members and providers.

11.88   The proposal also incorporates an education and training element, which builds on the Complaints Commissioner’s education function to ‘educate people about … best practice in the handling of complaints that relate to responsibilities of approved providers under this Act and the Principles … and matters arising from such complaints’.^[112]

11.89   Under the DRIS, the Ombudsman conducts education and training with service providers and key agencies on responding to serious incidents in disability services settings. This component has contributed to providers being better equipped to identify and respond to neglect and abuse; to understand the systems and processes that contribute to a ‘client-safe’ environment; and to understand the fundamental principles and strategies for conducting investigations.^[113]

11.90   Finally, the scheme will contribute to a better understanding of the nature of serious incidents occurring in aged care, and enable data to be captured in a centralised location, thus supporting other safeguarding mechanisms including enhanced employment screening.^[114]

What should be reported?

11.91   Although some stakeholders questioned the merits of the compulsory reporting regime,^[115] a strong theme in submissions was that the scope of the current compulsory reporting scheme is too restricted, and focused too heavily on regulatory compliance rather than reporting serious incidents in a way that activates an appropriate investigation and response into the matter.

11.92   Advocates and consumer groups have suggested that the scope of what constitutes a ‘reportable assault’ under the current scheme is inadequate. In summary, their concerns are that:

• the scope of conduct covered by the scheme was too limited and failed to include other serious forms of abuse;

• the scope was limited to care recipients in residential care;

• the exemption in respect of resident–on–resident assaults, where the offender had a pre-diagnosed cognitive impairment, afforded too broad a discretion to approved providers not to report, and resulted in a lack of understanding of how such incidents were managed, potentially raising broader safety issues in respect of other care recipients, and concealed the number and nature of such incidents.

11.93   If it is accepted that a key rationale for implementing a compulsory reporting regime is to enable visibility of such incidents so that appropriate action can be taken to protect and safeguard victims (and potential victims of abuse), it is important that any compulsory reporting scheme requires notification of an appropriate scope of serious conduct.

11.94   The proposal draws on the definition of ‘reportable incident’ in the DRIS, which captures a broad range of conduct, but draws a distinction between employee-to-client as opposed to client-to-client incidents. The DRIS categories are:

• Employee-to-client incidents—notifications are required in respect of a (relatively) broad range of conduct including any sexual offence, sexual misconduct, assault, Part 4AA offences,^[116] ill-treatment and neglect;

• Client-to-client incidents—a higher threshold must be met before a notification is required, including where the incident involves a sexual offence, causes a serious injury, involves use of a weapon or is part of a pattern of abuse;

• incidents involving a contravention of an apprehended violence order (AVO) where the protected person is the person with disability;^[117]

• incidents resulting in an unexplained serious injury to a person with disability.^[118]

11.95   It is important to note the distinction, and in particular the different threshold, applicable to incidents where the alleged perpetrator is an employee, as opposed to a resident. In respect of client–to–client matters, the DRIS requires a higher threshold of harm or risk be met before they become ‘reportable incidents’.

11.96   These different categories have the capacity to respond to a number of concerns raised by stakeholders.

Scope of conduct captured by ‘reportable assault’ in aged care

11.97   One of the concerns identified by stakeholders is that the type of conduct defined by the legislation as being a ‘reportable assault’ is too limited and fails to capture various forms of serious ‘abuse’ that can result in grave consequences for victims.^[119] For example, the UNSW Law Society submitted that the reporting obligation should extend to a ‘broader range of serious abuses of a non-sexual or non-physical nature’ on the basis that

globally accepted definitions of elder abuse recognise that it includes a host of practices which are detrimental to recipients of aged care [including] financial abuse, differential treatment, wilful or unintentional neglect, poor practice, bullying and psychological abuse.^[120]

11.98   The Australian College of Nursing noted that information relating to ‘minor’ incidents can assist in assessing risk:

There should be no provisions allowing aged care services to determine if a complaint should be reported, processed and assessed. In some cases, this information could provide important background information and build evidence in support of future claims or potentially trigger action to mitigate risks. This could be a very important measure in the community context where, for reasons such as social isolation, suspected or ‘minor’ incidents of elder abuse can easily go undetected and unreported.^[121]

11.99   Some stakeholders, including National Seniors and the Old Colonists’ Association of Victoria, advocated for a broader scope of conduct to be compulsorily reported, specifically in respect of financial abuse.^[122]

11.100         Aged Care Crisis noted the ‘narrow’ definition of ‘reportable assault’, and commented they had raised concerns at the commencement of the regime on the basis that the definition failed to address ‘poor nutrition, hydration, verbal and emotional abuse [and] financial fraud’.^[123] UnitingCare Australia commented that reports of reported assaults ‘do not give a full picture’^[124] of abuse, because they ‘do not extend to all forms of elder abuse’.^[125]

11.101         Under the DRIS, examples of neglect and ill-treatment include inappropriate use of restrictive practices to manage behaviour, leaving residents unsupervised for an extended period of time, withholding food, locking residents outside for extended periods and depriving them of food and water, and failing to connect or flush enteral nutrition tubes.^[126]

11.102         These types of incidents are broadly representative of the types of conduct that stakeholders submitted should be required to be notified, and which the proposed scheme would require to be notified.^[127]

11.103         The proposed scheme does not include the DRIS category relating to breaches of intervention orders. In that scheme, such incidents comprised a very small number of notifications (1%),^[128] and the ALRC has not heard that it is a significant issue in the aged care context, but invites comment on this issue.

Exemption to reporting resident–on–resident incidents in aged care

11.104         The exemption to reporting resident–on–resident incidents where the perpetrator has cognitive impairment has been an issue of significant interest to stakeholders from the time the notification regime was introduced^[129] and continued to elicit responses from stakeholders to this Inquiry.^[130]

11.105         The Office of the Public Advocate Victoria asserted that the ‘exception to mandatory reporting of assaults under these conditions is too lenient’.^[131] It argued that, without visibility of such incidents, and transparency and accountability of the response, it is difficult to evaluate the efficacy and appropriateness, and further develop policy and program responses to those incidents.

11.106         Although the legislation requires that approved providers implement a behaviour management plan, a number of stakeholders raised concerns about the appropriateness of plans implemented; and said they were troubled by the lack of oversight in that regard. The NSW Nurses and Midwives’ Association, for example, submitted that although providers are required to implement a behaviour management plan, ‘our members tell us that there are often inadequate staffing ratios to fulfil the requirements of a robust behaviour management plan and little monitoring of this process by the [Australian Aged Care Quality Agency]’.^[132]

11.107         People with Disability Australia (PWDA) argued that the exemption risked creating ‘two forms of justice’:

While we acknowledge the issue of criminalisation of people with cognitive impairments, co-residents should have their assaults taken seriously and should be given the opportunity to report to the police. Individuals should be supported to engage in the justice system, as violence is violence, and people with disability are entitled to a justice system response on an equal basis to others. There should not be two forms of justice: one for people without disability, and one for people with disability.^[133]

11.108         The Townsville Community Legal Service echoed the position that it did not wish to see residents with cognitive impairments persecuted, but that the exemption brought into question the utility of the reporting system and is ‘antithetical to the objects of a protective system’.^[134] It submitted the regime ought to be a ‘dynamic system that protects all from abuse’.^[135]

11.109         PWDA advocated for a ‘formal’ response to such incidents:

We have concerns where the aged care provider puts in place arrangements to ‘manage’ the behaviour or care of this resident, especially as the sole response to a violent incident. Oftentimes, these forms of behaviour management involve the use of restrictive practices, such as limiting the resident’s access within or outside of the facility, or medicating the resident to make them more compliant. Instead, the precursors for the assault should be assessed, taking into consideration why the individual acted in the way they did, and a positive behaviour management plan be put in place.^[136]

11.110         Advocare Inc (WA) supported removing the exemption, arguing that it concealed what was actually occurring in respect of both the incident and the provider’s response:

An unscrupulous care facility could therefore hide multiple assaults by the same resident. This reporting exemption should be abolished, to allow a clearer picture of the extent of assaults and to ensure appropriate preventative interventions are put in
place…^[137]

11.111         Responding to a parliamentary committee, Leading Age Services Australia, enunciated a different view, arguing the current requirements to keep appropriate records of resident–on–resident incidents and the requirements to demonstrate appropriate standards in respect of behaviour management under the Accountability Principles 2014 were appropriate.^[138]

11.112         It was suggested that the consequential impacts, of not requiring such incidents to be reported, included a loss of a right to redress or remedy for the victim, a reinforced substandard response to risks and violence, the family of the victim being unaware of the incident and a lack of sanction, or consideration of sanction, against a perpetrator and/or the service provider.^[139] This was the personal experience of one inquiry participant whose mother was assaulted by another care recipient with dementia:

My late mother was assaulted in an aged care dementia unit in Melbourne. A man punched her in the chest and tried to suffocate her with a pillow—he was pulled off her by staff. The aged care provider deemed it an ‘unreportable assault’. There had been at least one previous ‘unreportable assault’ with a pillow by the same man, and preventative measures were supposed to be in place.

They obviously weren’t working …

The new Australian Aged Care Quality Agency is supposed to regulate and monitor aged care compliance (Corporate Plan 2016–2020). It is not possible to do either when assaults are not reported and are not taken into account. Whether or not providers comply with specified actions of non-reportable assaults is not able to be monitored either, since their actions are part of what is not reportable …

I was then required to mediate with the provider, rather than action being taken by the regulatory body. This automatically put me in a conflict situation with the provider, and things got worse …

Section 63-1AA of the Aged Care Act enabled the aged care provider to be in control of the entire process, of staff (some lost their jobs) and of my mother. It is my experience—and that of my late mother—that Section 63-1AA(3) of the Aged Care Act 1997 and the accompanying Accountability Principles 2014, Part 7, section 53 equates to legalised abuse within aged care dementia units, and that it further denies institutionalised individuals the fundamental rights of safety, care, empathy, compassion, protection, dignity, health and well-being, and instead enables abuse, violent assault, exploitation and neglect, and as such is a violation of basic human rights.

As the daughter of an 82 year old assault and abuse victim whose rights were not only not addressed but were denied by legislated procedures, it is my opinion that there can be no serious claim of protecting older Australians against abuse without amending the legalised abuse which is Section 63-1AA of the Aged Care Act.^[140]

11.113         The discretion not to report resident–on–resident incidents effectively ‘hides’ a potentially significant number of incidents occurring in aged care environments from view, which affects the ability to develop appropriate policy and operational responses to risk and risk management around vulnerable adults.

11.114         The issue also arises in the disability service context. In NSW, the DRIS responds to it by adopting a nuanced approach. It requires that a higher threshold is met before an incident becomes notifiable. It places the ‘main focus’ in responding to client–to–client incidents 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’.^[141]

11.115         The category distinctions in the DRIS model are designed to strike a balance between the ‘undesirability’ of reporting such incidents and the risk of criminalising people with cognitive impairment, with the need to ensure resident–on–resident incidents are not ‘normalised’, and are subject to an appropriate response.

11.116         The ALRC likewise proposes that there be a higher threshold of seriousness met before a notification is required to be made in relation to an incident between two care recipients where one has a pre-diagnosed cognitive impairment. Specifically, these should include the types of conduct provided for in the DRIS, namely sexual offences, incidents causing serious injury, incidents involving the use of a weapon, incidents that are part of a pattern of abuse.^[142]

11.117         This approach acknowledges the policy rationale behind the existing exemption, but recognises that such serious incidents should be reported, and is designed to ensure that the provider response is appropriate, transparent and accountable. The requirement to report these incidents will also shed light on the nature and extent of such incidents, enabling a better understanding of them and how the system can respond to them.

Limited expansion of the requirement to report beyond the residential care context

11.118         A number of stakeholders noted that older people are increasingly receiving flexible care or home care from approved providers, where no compulsory reporting requirements apply.

11.119         It was suggested that this represented an unacceptable gap in the regime.^[143] The University of NSW Law Society said that

[t]his effectively means that aged care providers in home based or flexible care settings are not subject to the mandatory reporting requirements. This is concerning as it drastically reduces the accountability of an entire subset of staff members, volunteers or key personnel of aged care providers that do not fall within residential care. We submit that there appears to be no principled reason for exempting home-based or flexible care providers from mandatory reporting obligations.^[144]

11.120         The Australian Nursing and Midwifery Federation argued for the compulsory reporting requirements to be amended to ‘incorporate approved providers of community-based aged care … services’.^[145]

11.121         Leading Age Services Australia also acknowledged that those receiving aged care outside the residential context would ‘obviously go unreported’.^[146] In its view, ‘the reporting requirements imposed on the industry had little positive effect … and only concentrates on a limited area of aged care and does not include other forms of abuse’.^[147]

11.122         In the ALRC’s view, the current restricted application of the reporting requirement to residential care recipients affords less protection to care recipients receiving aged care outside the residential context. The ALRC therefore proposes that the reportable incident regime apply, in limited circumstances, where a care recipient is receiving home or flexible care. It is proposed to require a notification to be made where the alleged perpetrator is a staff member of an approved provider.

11.123         The proposal attempts to strike an appropriate balance on threshold issues, recognising that where a person is in residential care, an approved provider has a greater duty of care, and controls many aspects of the care recipient’s life, including who has access to them. Therefore, reports of abuse ought to be made in all cases, regardless of who the alleged perpetrator is.

11.124         In the home or flexible care context, an approved provider has less control or capacity to act protectively. However, where a staff member is alleged to have acted inappropriately, their employer should report and respond. Where there is alleged abuse of the care recipient by another person, such as a family member, it is not proposed to require mandated reporting of those incidents for the reasons noted by many stakeholders regarding autonomy and choice.^[148]

11.125         This does not mean that a person (including a staff member of an approved provider) who has concerns for the welfare of person receiving flexible or home care should not report their concerns to anyone, but merely that they are not required to do so under the compulsory reporting regime. It may be that a report to the police, or to the public advocate (see Chapter 3) is appropriate.^[149]

Reporting to other agencies and timeframe for notification

11.126         The DRIS legislation does not impose a requirement on service providers to report reportable incidents to the police or to funding or compliance bodies, although providers may have obligations to do so under other laws and frameworks.^[150] However, the DRIS notification forms include questions about whether the incident has been reported to the police. This serves an educative function for providers, while also enabling questions to be asked by the oversight body, if necessary, about organisational decisions related to the reporting of incidents, thus allowing a more considered and nuanced approach in respect of matters referred to the police.

11.127         In 2009, the Productivity Commission commented that the ‘requirement for the Department to be informed within 24 hours appears to be a necessary pre-condition to protect current and future resident safety’.^[151] However, it is not clear that the Department takes an active role in specifically overseeing the provider’s response to each notification made.

11.128         It is critical that serious incidents are reported to the police as soon as possible. The ALRC has not formed a firm view on whether it is necessary to impose a legislative requirement to that effect. The DRIS model does not impose such a requirement, but through training and engagement with providers strongly encourages reporting to police for appropriate incidents.

11.129         Similarly, with regard to reporting to the Department of Health, the ALRC considers that there may be sound reasons for such reports to be made, including to enable the Department to assess a provider’s compliance with regulatory obligations. Whether such a report is necessary within 24 hours should be considered in light of the purpose of the reporting.

11.130         The ALRC considers that the timeframe applicable for a reportable incident to be notified to the oversight body, that is ‘no later than 30 days’ from when the provider became aware of the allegation, is appropriate. Such a design enables a provider to consider its plan to investigate and respond to the incident, and to provide a more thorough and considered report outlining its proposed course of action than the current 24 hour window.

Other issues

11.131         A number of other issues have been identified that the ALRC proposes be incorporated into the aged care model. These build on provisions in the DRIS and include enhanced information sharing provisions; whistleblower protections; and data capture capabilities.

Expanded information sharing provisions

11.132         The ALRC proposes that the model include a further information sharing provision that would enable the head of an approved provider to provide to, and receive from, other approved providers and public authorities, information that relates to the promotion of safety of people receiving aged care in connection with responding to a reportable incident.

11.133         The DRIS contains provisions that allow disclosure of information by the head of an agency (or the Ombudsman) about reportable incidents with certain people. These people include the person with disability that is the subject of the incident or their nominee.^[152] It also includes, in certain circumstances,^[153] the person’s guardian, attorney,^[154] financial manager/administrator, or a close friend or relative of the person.

11.134         However, it is foreseeable that circumstances may arise where a service provider, having information about a reportable incident in relation to a particular person, may develop a concern for the welfare and safety of a care recipient and, in order to protect that person, may need to share information that would otherwise be protected from disclosure.

11.135         Although the DRIS does not have such provisions, they do apply (although much more broadly) in respect of the reportable conduct scheme in respect of children.^[155] It is not proposed to expand the provisions to be as broad as those in
Ch 16A.

11.136         The NSW Ombudsman has been advocating for amendments to DRIS information sharing provisions that would enable the exchange of information between a range of agencies in circumstances where the exchange of personal information forms part of providing a reasonable response to any safety or significant welfare issue relating to, or arising out of, a reportable incident.^[156] The agencies that the Ombudsman proposes be included in the provision encompass a range of disability service providers (including accommodation, employment, community participation, day program and respite services), police, and labour hire agencies, in respect of the DRIS.

11.137         The Ombudsman described a number of examples that demonstrate the problem in the disability context, but which are apposite in the aged care arena:

Need to disclose information between disability services relating to risks associated with employees

A person is working for three different disability services as a casual support worker. in one service, allegations are made that the person committed fraud against a person with disability living in the accommodation service. A police investigation substantiates the allegations, but due to technical reasons no charges are laid. the worker resigns from the service. the service is aware that the worker is employed by two other accommodation services. Neither service is aware of the significant adverse finding that has been made against the worker, or the risks that need to be managed.

Need to disclose information between disability services and labour hire agencies relating to risks associated with employees

A service uses a labour hire agency to access casual staff. Allegations of neglect are made against one of the agency casual workers, including that they failed to seek medical attention for a client who was seriously ill, and left a client unattended in the bath while the worker had a cigarette outside. The service conducts an investigation and substantiates the allegations. the service advises the labour hire agency that they no longer want the worker to cover any shifts, however the labour hire agency requires details of the allegations and sustained findings in order to manage risk to other clients.^[157]

11.138         There are sound reasons to include such a provision relating to aged care. Approved providers owe a duty of care to care recipients. The nature of ‘reportable incidents’ are indicative of potential serious risk to the individual and other care recipients. It is proposed that the provision be restricted to sharing of information in circumstances where doing so will enhance the safety of people receiving aged care.

11.139         It is also critical that information sharing provisions enable the sharing of information comprising adverse findings that have been made against staff members, in circumstances where there are safety or significant welfare issues that would justify the exchange of information, with a national database which would contribute to enhanced employment screening. This is discussed further below.

Whistleblower protection

11.140         The current reporting regime affords protection to whistleblowers when the incident is a ‘reportable assault’, however the restricted definitional scope may not protect those workers that report matters that fall outside the current definition. A common theme emerging in submissions was the need for whistleblower protections for workers who report incidents.^[158]

11.141         Stakeholders, particularly those representing workers in the aged care industry, submitted that the protections afforded to whistleblowers under the reporting regime were inadequate.^[159] The basis for this assertion is that the protections only apply in limited circumstances, namely in those circumstances that are able to be defined as a ‘reportable assault’. Two consequences were noted as a result of this.

11.142         First, it was argued that, because the protection failed to extend to a broad range of abuse of older people that many workers witnessed in the course of their work, staff reporting abuse that is outside the scope of a ‘reportable assault’ are left vulnerable to intimidation and harassment from their employer and others.^[160]

11.143         The second is that staff members may decide not to report such abuse for fear of repercussions, meaning that much abuse remains hidden. The Older Women’s Network NSW submitted, for example, that the inadequate protections meant that staff lacked confidence to report abuse, and therefore ‘reported assaults are the tip of the iceberg’.^[161]

11.144         It is critical for appropriate protection to be afforded to those who report incidents in good faith. The ALRC proposes that such protections be incorporated into the reportable incidents scheme.

11.145         The proposed expanded scope of the definition of what is required to be notified should also expand whistleblower protections to those who report any incident that falls within that definition, provided the report is made in good faith.

Data capture

11.146         There is currently only limited data about reportable assaults. If a broader range of abusive conduct were required to be reported, as the ALRC proposes, then this information could be used to inform policy and system responses.

11.147         The narrow definition of the term ‘reportable assault’ effectively conceals incidents that may have serious consequences for the victim but, because they are not captured, are not required to be reported. Examples of types of abuse that the current scheme does not capture includes, for example, neglect and financial abuse. While there may be some anecdotal data about abuse that falls outside the current scope captured by, for example, elder abuse hotlines and by the Complaints Commissioner, all rely on a person choosing to report, as there is no compulsory requirement to report such incidents.

11.148         A number of stakeholders, advocated for better data about abuse of older people.^[162] PWDA noted the issues with the current regime and the closed nature of aged care facilities:

Far too often, older people with disability experience elder violence at the hands of home care workers, support workers, staff in residential facilities and co-residents in residential institutions…we know that closed institutions bring with them higher levels of violence. Data on violence in closed aged care settings is limited, as approved providers are only mandated to report certain types of assaults…However, data from the NSW Bureau of Crime Statistics and Research…and the NSW Ombudsman’s Disability Reportable Incidents Scheme illustrates that there is a significant amount of violence occurring in closed settings such as boarding houses, supported group accommodation, nursing homes and aged care facilities.^[163]

11.149         The data resulting from the DRIS indicate that, in the disability space, there are concerns about the conduct of staff and volunteers toward clients. The NSW Ombudsman reported that over half of the 437 notifications in the first eight months of the scheme’s operation were employee-to-client matters (240 incidents or 55%). Physical assaults comprised the largest proportion of reports (38%), followed by neglect (20%).

11.150         About a third of notifications were client-to-client matters (148 incidents or 34%), most of which were notifications of a pattern of abuse (34%). About a quarter of notifications of client-on-client incidents were for assault causing serious injury, and sexual offences and assault involving the use of a weapon comprised 20% of notifications respectively. Notifications for unexplained serious injuries comprised 10% of notifications, while AVO breaches made up only 1%.

11.151         While there is a lack of data about abuse in aged care, by requiring notification of a broader range of abuse the proposal would contribute to enhanced understandings of the nature and scope of abuse occurring in the aged care context, which in turn will enable the development of better policy and program responses.^[164]