Employment screening in aged care

Proposal 11–4          There should be a national employment screening process for Australian Government funded aged care. The screening process should determine whether a clearance should be granted to work in aged care, based on an assessment of:

(a)           a person’s national criminal history;

(b)           relevant reportable incidents under the proposed reportable incidents scheme; and

(c)           relevant disciplinary proceedings or complaints.

Proposal 11–5          A national database should be established to record the outcome and status of employment clearances.

11.152         It is critical that potential aged care workers are subjected to proper screening processes to ensure that, as far as possible, only those who are appropriately qualified and do not pose an unreasonable risk are placed in those roles.

11.153         The ALRC proposes that the safeguards to care recipients be improved by enhancing the employment screening of people working in aged care. The proposal builds on the proposed reportable incident scheme (Proposals 11-1 to 11-3) by requiring that information about adverse findings made against employees working in aged care be shared with a centralised screening agency.

11.154         The ALRC proposes that people wishing to work or volunteer in Commonwealth-funded aged care should be required to apply for a clearance with the screening agency. That process would screen a person’s national criminal history, any adverse findings or notifications made about the applicant that resulted from a reportable incident, as well as any findings from disciplinary or complaint action taken by registration or complaint handling bodies. The identification of potential risk enables the screening agency to conduct a risk assessment of the applicant.

11.155         The Aged Care Act contains a number of provisions that set out suitability requirements for employment in aged care, including:

  • Any person who is ‘key personnel’[165] of an approved provider must not have been convicted of an indictable offence, be insolvent, or be of ‘unsound mind’.[166] Penalties may apply where an approved provider has a ‘disqualified person’ in a key personnel role.[167]

  • Staff[168] of approved providers must be issued with a police certificate. Police certificates are current for three years. Where a person has been convicted of murder or sexual assault, or has been convicted of any other form of assault where the sentence included a term of imprisonment, the person is unable to be employed or to volunteer in aged care.[169]

  • Where a police certificate discloses something that is not an outright bar to employment, police certificate guidelines published by the Aged Care Quality and Compliance Group (Guidelines) provide direction to approved providers on assessing the information, noting that ‘[a]n approved provider’s decision regarding the employment of a person with any recorded convictions must be rigorous, defensible and transparent’.[170]

11.156         Other employment safeguards that may operate include reference checks conducted as part of recruitment processes,[171] and registration requirements for certain professions involved in aged care. For some groups of employees, for example nurses and doctors, there are registration or accreditation requirements, usually overseen by a regulatory agency.[172] Codes of conduct usually apply to individuals who are subject to accreditation processes, with the possibility of disciplinary action where an individual has breached the relevant Code.

Gaps in the current framework

11.157         The concept of conducting screening of potential employees is based on the notion that past behaviour is a potential indicator of future behaviour, and can assist in identifying and assessing risk. The importance of staff screening has been recognised in respect of vulnerable or at-risk groups.[173] The NSW Ombudsman urged that ‘it is of vital importance to ensure that, wherever practical, those individuals in the community who engage in inappropriate behaviour or take advantage of vulnerable people are prevented from working in care-focussed support roles’.[174]

11.158         This is the rationale underpinning the existing requirements. While no system of background checking will be ‘fail-safe’, police checks are an important component that can assist in determining whether an applicant is appropriate in the circumstances.

11.159         Police checks have some limitations in enabling a thorough assessment of the risk posed by an individual. A police clearance does not provide other relevant information that may assist in assessing the risk posed by the applicant to the people they would be providing care to. Examples of the type of information that might be relevant include:

  • relevant employment proceedings, including information about disciplinary action taken against the person;

  • spent convictions or convictions arising when a person was a juvenile;

  • allegations or police investigations involving the person; and

  • apprehended violence, intervention and prohibition orders.[175]

11.160         Additionally, the conduct must meet a very high evidentiary threshold before it will be recorded on a police check. It has been argued that it is important to capture conduct that meets a lower (balance of probabilities) threshold, for the purposes of assessing risk.[176]

11.161         Police check information may not be current. Although police clearances are required to be obtained and/or renewed every three years, and providers must take ‘reasonable steps’ to ensure staff notify them of any convictions, there is no capacity for continuous monitoring of national criminal records.[177]

11.162         The mobililty of individuals across different community support sectors (children, disability and aged care), and across borders is also an identified gap.[178]

11.163         Reference checking may not always be reliable. For example, it is unlikely that applicants will list a former employer as a referee if there had been issues with their performance or conduct while under the employer’s management.

Enhanced employment screening in other community service sectors

11.164         In the ALRC’s view, there is capacity for enhanced employment screening in aged care that could offer better protection to care recipients. The key components of the proposal would be the establishment of a screening mechanism that would draw on a person’s national criminal history, reportable incidents under the proposed reportable incidents scheme for aged care and relevant disciplinary proceedings in assessing their suitability to work in aged care.

11.165         This scheme would be similar to working with children and working with vulnerable person checks. All Australian jurisdictions require persons working with children to hold a working with children check.[179] Two Australian jurisdictions, the ACT and Tasmania, have moved to broaden their employment screening to people working with other vulnerable groups.[180]

11.166         The value of utilising relevant employment proceedings in determining a person’s suitability for work with vulnerable groups has been recognised.[181]

11.167         Working with children checks generally capture a broader range of information than what is reported in a national police check. Working with children checks may include: convictions (including spent or juvenile convictions; intervention orders; charges (for example, where a conviction has not been recorded because a proceeding has not been heard or finalised by a court, or where charges have been dismissed or withdrawn); relevant allegations or police investigations involving the individual; and relevant employment proceedings and disciplinary information from professional organisations (for example, organisations associated with teachers, childcare service providers, foster carers, and health practitioners).[182]

11.168         In New South Wales, the working with children check also includes consideration of reportable conduct matters.[183] Reportable conduct schemes do not exist in other jurisdictions. Most jurisdictions that consider employment history as part of the check take into account any disciplinary proceedings conducted by professional bodies.[184]

11.169         While professional bodies are involved in responding to complaints about those people who are subject to regulation by them, there are some people who are not subject to regulation in the aged care context. This is considered further below when discussing the proposed National Code of Conduct for Health Care Workers.

11.170         The Australian Health Practitioner Regulation Agency (APHRA) requires certain categories of people[185] to report ‘notifiable conduct’, although the threshold to make a mandatory complaint is high. A notifier must have a ‘reasonable belief that a practitioner has behaved in a way that constitutes notifiable conduct and that their belief is based on reasonable grounds’.[186]

11.171         In contrast, the reportable conduct scheme for people working with children is allegation based. This means that an organisation must notify when they receive an allegation, as opposed to when, or if, they form a ‘reasonable belief’. This lower threshold for notification responds to concerns about the ‘hidden’ nature of child abuse and neglect, and recognises that, for various reasons, including the alleged victim’s (in)capacity, the higher ‘reasonable belief’ threshold might not be met but nonetheless a risk may still be present.

11.172         The ACT and Victorian employment screening mechanisms apply more widely than to people working with children, extending to ‘vulnerable persons’. Both schemes are in the early implementation phase and focus primarily on employment screening of people applying to work with children.

11.173         Under the ACT and Victorian schemes, a person must apply for registration to engage in a regulated activity with a vulnerable person. ‘Vulnerable persons’ are defined as people accessing a regulated activity.[187]

11.174         ‘Regulated activities’ are broadly defined in the ACT, and encompass activities or services for vulnerable people, including mental health and addiction services; services delivered to migrants … and ‘people who cannot communicate or who have difficulty communicating in English’; services delivered to homeless people; housing and accommodation services delivered to people suffering social or financial hardship; victims of crime; community, disability and respite services.[188] However, the ACT’s vulnerable person check does not apply to staff members under the Aged Care Act.[189]

11.175         The proposed reportable incident scheme would, if implemented as suggested, enable adverse findings that result from a reportable incident to be captured and disclosed in circumstances where the individual subsequently applies to work in Commonwealth funded aged care.

11.176         A number of stakeholders submitted that a more robust screening system of people working or volunteering in aged care would better safeguard older people receiving care.[190] The Australian Association of Social Workers said that such checks were ‘necessary’.[191]

11.177         Alzheimer’s Australia stated:

To help prevent and address physical, psychological and sexual abuse of residents of aged care facilities, all direct care workers in both residential and community aged care should be required to undertake more extensive background checks analogous to Working with Children Checks.[192]

11.178         Other stakeholders also referred to working with children checks and working vulnerable person checks.[193] However not all supported further screening. There were concerns about privacy and the administrative burden and cost of further screening processes. The national peak body for aged and community care workers, Aged and Community Services Australia (ACSA), suggested that while it understood the intent behind such schemes, it was

cautious about introducing another administrative process unless there is clear evidence from an ageing/aged care sector perspective that demonstrates such a check provides additional protection for older people and employers without infringing on the rights of employees.[194]

11.179         Similar concerns have been raised in regard to the working with children check schemes, namely that there is limited evidence of their efficacy and that they come with a significant operational cost. Notwithstanding those concerns, in its review of the various schemes across Australia, the Royal Commission into Institutional Responses to Child Sexual Abuse indicated that it shared ‘the view held by the majority of government and non-government stakeholders … consulted about [working with children checks]: that they deliver unquestionable benefits to the safeguarding of children’.[195]

A national aged care workforce screening process

11.180         The key features of Proposal 11-4 are that relevant staff members[196] of approved providers should be subject to employment screening by an independent Commonwealth agency. The agency will assess the person’s suitability to work in aged care by taking into account the person’s criminal history through a national police check, any findings or notifications resulting from the proposed reportable incident scheme, and any disciplinary proceedings that the person has been subject to.

11.181         The outcomes and status of clearances should be maintained on a register that is able to be checked by approved providers when employing staff.

Criminal history and national police checks

11.182         As discussed above, police checks are already required to be performed in respect of people seeking to work in Commonwealth funded aged care. The proposal builds on this requirement.

11.183         The ALRC agrees that it is critical to retain a check of an individual’s criminal history, and notes the scope of the current police checks conducted for those applying to work in aged care: convictions; guilty, but no conviction recorded; and pending criminal charges.

11.184         Although other information could be extracted from national criminal history checks (discussed previously in this chapter), there has been no research that the ALRC is aware of that suggests such information is as relevant to assessing risk posed to older people as there is in respect of children. For example, in respect of children, it is widely understood that there will be people against whom allegations of abuse have been made, and who may have been the subject of investigation or even charges, but where no conviction has followed.[197] In those instances, there are strong arguments for capturing such information in working with children checks.

Notifications or findings from reportable incident scheme

Question 11–1          Where a person is the subject of an adverse finding in respect of a reportable incident, what sort of incident should automatically exclude the person from working in aged care?

11.185         The proposed reportable incident scheme would provide information resulting from notifications and findings made in respect of a person employed or volunteering in aged care.

11.186         The ALRC proposes that any adverse findings/determinations should be assessed as representing a higher risk than notifications made in respect of a person where the conduct is similar. For example, where the reportable incident involves financial abuse, an adverse finding made in respect of a person should be considered more serious than a notification in respect of the same conduct but where no adverse finding resulted.

11.187         However, both determinations and notifications should be considered as ‘red flags’ in respect of a person, and trigger an assessment of their suitability.

11.188         The ALRC’s preliminary view is that there may be incidents captured under the proposed reportable incident scheme that ought to automatically exclude a person in the event an adverse finding is made. This approach recognises and responds to risks posed by individuals whose conduct, while perhaps not satisfying a criminal threshold, is found to have breached standards and as such ought to be subject to either a prohibition or further risk assessment (depending on the nature of the incident).

11.189         The ALRC considers that such information—information specifically relevant to a person’s conduct in the aged care workforce—is of significance in assessing a person’s suitability to work with vulnerable people.\

11.190         The ALRC invites comment on the type of reportable incidents that should, in the event an adverse finding is made against a staff member, result in the staff member being refused a clearance to work in aged care.

Disciplinary proceedings and complaints

11.191         Disciplinary action may be taken against members of certain professions by registration or accreditation bodies. There are also complaint bodies that can receive complaints about people working in those professions.

11.192         In some cases, these organisations are national,[198] while others are state or territory based.[199] Registration or accreditation agencies and complaint handling bodies may also hold information relevant to assessing the potential risk posed by individuals seeking to work in aged care.

11.193         Consideration could be given to incorporating information held by such agencies, noting that significant work would need to be conducted to identify relevant organisations and establish appropriate information sharing networks. Such an approach could be implemented at a later stage.

Continuous monitoring of people working in aged care

11.194         The police check offers a clearance that represents a point in time. There is no capacity for ongoing monitoring of police records, without applying for a new clearance. The practical effect of this is that a person could have a police clearance, but be subject of criminal proceedings that would not be identified by the checking system.[200]

11.195         Several organisations have supported or recommended national employment screening in respect of children that utilises a continuous monitoring process.[201] The Australian Human Rights Commission has suggested that

A continuous feed of all state and commonwealth criminal databases should be readily available to the checking body, which should engage in daily monitoring of such records. Such a system has now been implemented in several states, noting that this is for state based offences only. Point-in-time screening only at recruitment or application phase is inadequate to ensure ongoing protection, and may be counterproductive insofar as it induces complacency.[202]

11.196         Continuous monitoring of people who have clearances is an important safeguard that should be embedded in the architecture of the screening mechanism. The screening agency should have the capacity to monitor national criminal history (subject to recommendations for ongoing national police database monitoring being progressed) as well as notifications made under the proposed reportable incidents scheme.

Mechanics

Persons to whom the scheme should apply

11.197         The existing requirement to obtain a police clearance for those people working in Commonwealth subsidised aged care offers a definable group of persons to whom the proposal should apply, at least in the first instance.

How long should a clearance last before renewal is required?

Question 11–2          How long should an employment clearance remain valid?

11.198         The current police clearance must be renewed every three years. The duration of working with children and vulnerable person checks in Australian jurisdictions varies across jurisdictions.[203]

11.199         The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that, subject to continuous monitoring of criminal history records, working with children checks should remain valid for five years before a person must apply for renewal.[204] This included recognition of the impost, including cost, on organisations to conduct checks among other factors.[205]

11.200         The ALRC invites comment on how long a clearance under the proposed national employment screening scheme should last.

How should risk be assessed and checks determined?

Question 11–3          Are there further offences which should preclude a person from employment in aged care?

11.201         Currently, there are a number of criminal offences (see above at 11.155)[206] which bar a person from being employed in aged care.

11.202         The ALRC invites comment on whether there are further criminal offences that should exclude a person from working in aged care.

11.203         Where a police certificate returns convictions for offences that are not an outright bar, the ALRC suggests that the decision about whether a person should be given a clearance should lie with the screening agency, who would be responsible for conducting a risk assessment and determining an outcome. This represents a shift away from the current process, whereby an approved provider can determine whether to employ a person whose police check returns a conviction for an offence that is not an automatic bar to employment. Approved providers would still take other steps to establish a person’s suitability, including by conducting reference checks with a person’s previous employers.

11.204         The ALRC suggests that it is appropriate that a single, independent organisation be responsible for assessing risk in such instances, and that that agency have appropriately trained staff to perform such assessments. This approach reflects the approach taken in respect of working with children and vulnerable person checks.

11.205         The screening agency will also need to conduct risk assessments of individuals whose check returns certain information that, while not meeting the ‘outright bar’ threshold, nonetheless may present a risk to older people.

11.206         At this stage, the issue of which organisation or agency should be responsible for conducting the check is not an issue about which the ALRC has a view.

11.207         The ALRC acknowledges that there will be implementation issues to be resolved, including who will be responsible for the scheme and the architecture that will establish it and, importantly, mechanisms for information sharing across jurisdictions.

11.208         There are a number of substantive issues that will require significantly more work before the scheme could become operational. These include where a disclosure does not automatically bar a person but signifies the need to conduct a risk assessment, how should risk be assessed and determined.

11.209         There is some guidance on these issues in respect of working with children checks,[207] however there has not been sufficient examination of the evidence base in regards to aged care.

11.210         In part, this issue is likely to be impacted by the question of having nationally consistent screening that would apply across community sectors including children, disability and aged care, noting that some of these are already conducted at state and territory level. This is discussed further below.

National approach across sectors

11.211         It has been suggested that a nationally consistent workforce screening process be established across service delivery to children, people with disability and older persons.[208]

11.212         Such an approach would better address the mobility issues referred to above, as well as offer enhanced safeguards and deliver cost savings in the future. The Department of Social Services reported that, in response to the proposed National Disability Insurance Scheme Quality and Safeguarding Framework,

[t]here was also strong support for establishing a consistent approach across relevant sectors because the same type of information would be important for deciding who is safe to work in these sectors. Most references were to the need for consistency with aged care and children’s services because staff often work in positions that have contact with these groups at the same time or move between these sectors. But there was also reference to the benefit of consistency across the broader community services sector.[209]

11.213         The ALRC acknowledges that several stakeholders, including the NSW Ombudsman, indicated support for enhanced staff screening as a safeguarding mechanism. It said ‘there would be merit in exploring the introduction of a nationally consistent screening system for vulnerable people more broadly (including child-related, aged care, and disability support)’.[210]

11.214         Although beyond the scope of this Inquiry, the ALRC considers that there may be merit in incorporating the proposed national check designed to cover those working in aged care, with other national clearances that have been either recommended or proposed in respect of children and people with disability. This would require significant investment, but could foreseeably result in savings in the mid-to-long term, while also providing more comprehensive safeguards for children, people with disability and people receiving aged care by restricting individuals refused a clearance from working in one sector from moving across to another sector.

[165]       Key personnel include members of the group of persons who are responsible for the executive decisions of the entity; and any other person with authority or responsibility (or significant influence over) planning, directing or controlling the activities of the entity at that time: Aged Care Act 1997 (Cth)
s 8-3A.

[166]       Ibid s 10A-1.

[167]       Ibid s 10A-2.

[168]       ‘Staff member’ is defined as being a person that is at least 16 years old; and is employed, hired, retained or contracted by the approved provider (whether directly or through an employment or recruitment agency) to provide care or other services under the control of the approved provider; and has, or is reasonably likely to have, access to care recipients: Accountability Principles 2014 (Cth) s 4.

[169]       Ibid s 48.

[170]       Department of Social Services, Aged Care Quality and Compliance Group—Police Certificate Guidelines (2014) 11.

[171]       Leading Age Services Australia, Submission 104; Alzheimer’s Australia, Submission 80.

[172]       See, for example, Australian Health Practitioner Regulation Agency.

[173]       See, eg, Joint Family and Community Development Committee, Parliament of Victoria, Betrayal of Trust: Inquiry into Handling of Abuse by Religious and Other Non-Government Organisations Vol 2 (2013) 229.

[174]       NSW Ombudsman, Submission 160.

[175]       Australian Institute of Family Studies, Pre-Employment Screening: Working With Children Checks and Police Checks (2016).

[176]       National Disability Services, Improving Safety Screening for Support Workers (2014) 9.

[177]       While there are variations across jurisdictions, current screening systems with regard to working with children checks do monitor criminal records from the jurisdiction in which the check is being conducted. The Royal Commission into Institutional Responses to Child Sexual Abuse has recommended that the Commonwealth Government enhance the capacity for national criminal history to be accessed and assessed to prevent an individual from committing an offence in another jurisdiction that could remain undetected until the check was due for renewal: Royal Commission into Institutional Responses to Child Sexual Abuse, Working with Children Checks Report (2015) 19, 108.

[178]       ARTD Consultants, National Disability Insurance Scheme Quality and Safeguarding Framework Department of Social Services Consultation Report (2015) 43; National Disability Services, above n 176, 7.

[179]       Working with Vulnerable People (Background Checking) Act 2011 (ACT); Working with Children (Criminal Record Checking) Act 2004 (WA); Working With Children Act 2005 (Vic); Working with Children (Risk  Management and Screening)  Act 2000 (Qld); Care and Protection of Children Act 2007 (NT); Child Protection (Working with Children) Act 2012 (NSW); Registration to Work with Vulnerable People Act 2013 (Tas); Children’s Protection Act 1993 (SA).

[180]       Working with Vulnerable People (Background Checking) Act 2011 (ACT); Registration to Work with Vulnerable People Act 2013 (Tas); Safeguarding Vulnerable Groups Act 2006 (UK).

[181]       NSW Auditor-General, Working with Children Check: NSW Commission for Children and Young People (2010) 15; Royal Commission into Institutional Responses to Child Sexual Abuse, above n 177, 5.

[182]       Australian Institute of Family Studies, above n 175. The information captured across jurisdictions can vary.

[183]       Findings and notifications resulting from reportable conduct incidents feed into the information used to assess the suitability of a person to work with children. See also Ombudsman Act 1976 (Cth) pt 3A.

[184]       For example, registration or accreditation bodies that regulate nurses, teachers, foster carers and certain health practitioners.

[185]       Registered health practitioners, employers and education providers.

[186]       Defined to include: practising while intoxicated by alcohol or drugs; sexual misconduct in the practice of the profession placing the public at risk of substantial harm because of an impairment (health issue), or placing the public at risk because of a significant departure from accepted professional standards: Australian Health Practitioner Regulation Agency, Mandatory Reporting <www.ahpra.gov.au/>.

[187]       Working with Vulnerable People (Background Checking) Act 2011 (ACT) s 7; Registration to Work with Vulnerable People Act 2013 (Tas) s 4.

[188]       Working with Vulnerable People (Background Checking) Act 2011 (ACT) sch 1 pt 1.2. The Tasmanian legislation is modelled on the ACT’s, however Tasmania has yet to define ‘regulated activities’ in respect of vulnerable adults.

[189]       Ibid s 12(2)(i)(v).

[190]       See, eg, NSW Ombudsman, Submission 160; Australian Association of Social Workers, Submission 153; Alzheimer’s Australia, Submission 80; Law Council of Australia, Submission 61.

[191]       Australian Association of Social Workers, Submission 153.

[192]       Alzheimer’s Australia, Submission 80.

[193]       National LGBTI Health Alliance, Submission 156; Aged and Community Services Australia, Submission 102; Law Council of Australia, Submission 61.

[194]       Aged and Community Services Australia, Submission 102.

[195]       Royal Commission into Institutional Responses to Child Sexual Abuse, above n 177, p 5.

[196]       As defined: Aged Care Act 1997 (Cth) s 63-1AA(9).

[197]       Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study 6: The Response of a Primary School and the Toowoomba Catholic Education Office to the Conduct of Gerard Byrnes (2015); Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study 2: YMCA NSW’s Response to the Conduct of Jonathan Lord (2014); Royal Commission into Institutional Responses to Child Sexual Abuse, above n 177.

[198]       For example, the Australian Health Practitioner Regulation Agency.

[199]       For example, NSW Health Care Complaints Commission; Office of the Health Care Complaints Commissioner, Victoria.

[200]       Australian Human Rights Commission, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse,  Issues Paper 1: Working with Children Checks (August 2013) 5–6.

[201]       Ibid 8; Royal Commission into Institutional Responses to Child Sexual Abuse, above n 177, 45.

[202]       Australian Human Rights Commission, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse,  Issues Paper 1: Working with Children Checks (August 2013) 8.

[203]       South Australia has a ‘point in time’ check, while a clearance lasts for two years in the Northern Territory, three years in the ACT, Queensland, Tasmania, and Western Australia, and five years in Victoria and New South Wales: Australian Institute of Family Studies, above n 175.

[204]       Royal Commission into Institutional Responses to Child Sexual Abuse, above n 177, rec 31.

[205]       Ibid 108.

[206]       Accountability Principles 2014 (Cth) s 48.

[207]       Royal Commission into Institutional Responses to Child Sexual Abuse, above n 177.

[208]       Ibid; ARTD Consultants, above n 178, 40.

[209]       ARTD Consultants, above n 178, p 43; NSW Ombudsman, Submission 160; National Disability Services, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Issues Paper 1: Working with Children Checks (August 2013) 2.

[210]       NSW Ombudsman, Submission 160; Australian Association of Social Workers, Submission 153; Alzheimer’s Australia, Submission 80; Law Council of Australia, Submission 61.