AGED CARE ROYAL COMMISSION – The terms of reference and what they mean

On 8 October 2018, the Governor-General signed off on the Letters Patent establishing the Royal Commission into aged care, available here.

This Royal Commission is future focused. It is aimed at looking at how quality aged care services can best be delivered. In doing this it is charged with examining the extent of the substandard care being provided as well as mistreatment and all types of abuses suffered by those in aged care.

There will also be an examination of systemic fails.

The Letters Patent instruct the Commission to make “any recommendations arising out of your inquiry that you consider appropriate, including recommendations about any policy, legislative, administrative or structural reforms”. The Letters Patent steer the recommendations in the direction of quality and safe aged care including the following:

  • barriers faced in accessing aged care;
  • increasing incidence of chronic and complex conditions;
  • interface with other services accessed by aged care users;
  • aged care workforce;
  • dignity;
  • choice and control;
  • clinical care;
  • medication management;
  • mental health;
  • personal care;
  • nutrition;
  • positive behaviour supports to reduce or eliminate the use of restrictive practices;
  • end of life care; and
  • systems to ensure that high quality care is delivered, such as governance arrangements and management support systems.

Below we answer some of the practical questions for those wondering if they will be called before the Commission.

What are the powers of a Royal Commission?

Royal Commissions are the highest form of inquiry on matters of public importance and have broad powers that Police do not generally have in relation to the same matters.  The powers of Royal Commissions are set out in the Royal Commissions Act 1902 (Cth) (‘the Act’) and include:

  • powers in relation to obtaining documents for the inquiry;
  • broad powers relating to summoning witnesses and taking evidence; and
  • broad powers that allow penalties to be imposed for failing to produce documents or appear when summoned.

That the Royal Commission may impose fines and even imprisonment for:

  • providing false or misleading evidence;
  • bribery of witness;
  • destroying documents; and
  • contempt of Royal Commission.

The Letters Patent further expand on the specific powers of the Royal Commission which we have noted above. But in many ways, the Letters Patent also act to curb the power of the Commission. In this instance, for example, the definition of Aged Care Services narrows the scope of the Commission.

What is aged care services for the purposes of the Commission?

The Letters Patent define “aged care services” as:

“services provided by any of the following:

(a) approved providers within the meaning of the Aged Care Act 1997;

(b) entities to which a grant is payable under Chapter 5 of the Aged Care Act 1997;

(c) entities to which funding is payable under a program relating to aged care specified in Schedule lAA or lAB to the Financial Framework (Supplementary Powers) Regulations 1997;

(d) entities that receive funding for the purposes of the Veterans’ Home Care Program established under the Veterans’ Entitlements Act 1986.”

As a result, if you provide aged care services outside of the Commonwealth framework and do not receive Commonwealth funding you are unlikely to be called upon.

However, if you are an approved provider of aged care including home or flexible care or receive funding for any Commonwealth funded program relating to aged care you may be called upon.

How do you know if you’ll be called before the Commission?

If your organisation is involved in aged care services as defined, you cannot rule out the possibility of being called before the Commission. We expect that the Commission will make initial requests within the next two months from organisations it would like to speak to.

In practice, your organisation is likely to be contacted by the Australian Government Solicitor before receiving a formal request. The formal request will be made with a Subpoena or a Notice to Produce that is served on a party. Directions enclosed in these documents include:

  • a notice to produce documents; and/or
  • a notice to appear before the commission.

What does it mean if you are called?

You should consider the initial notice carefully. In particular, consider what is required to respond:

  • what resources do you need to comply
  • what time period are they seeking
  • where do you need to physically search
  • do you need to speak to former employees, and in particular former CEOs
  • are there any privacy law implications of the response
  • will need to request an extension to properly respond

If you are called to appear you should ensure you are adequately prepared, including being properly briefed on what to expect during a hearing. Hearings are often run by well experienced barristers focused on highlighting particular angles from the evidence you have already produced in the lead up to the hearing. In our experience, notwithstanding that you might provide 100 case examples in respond to a Notice to Produce, only a few are likely to be chosen for the purpose of hearings.

The bottom line, however, is that you should comply. As there are significant penalties for failing to comply. As we are also seen in the recent Banking Royal Commission, the public relations impacts of not complying are significant.

What happens if you do not co-operate?

Under section 3(4) of the Act, a person served with a notice must not refuse or fail to produce a document or any other thing that the person was required to produce in accordance with the notice. The penalty for refusing or failing to produce a document is up to two (2) years imprisonment. This penalty applies for each separate refusal or failure to produce a document. It is a defence to prosecution for the offence of refusing or failing to produce documents if a person can prove that the document was not relevant to the matters in which the Commission is enquiring (section 3(6)).

It is not an offence, however, to refuse or fail to produce a document if a person has a reasonable excuse for refusing or failing to produce the document (section 3(5)).  In accordance with the Act, a reasonable excuse for refusing or failing to comply with the Notice to Produce means an excuse which would excuse an act or omission of a similar nature by a person served with a subpoena in accordance with a proceeding before a court of law.

There are also penalties in the Act for non-compliance with a notice to attend as a witness or a private session and offences relating to the giving of false evidence as a witness at a hearing and private session.

Do I have to provide documents covered by legal professional privilege?

Under section 6AA of the Act, legal professional privilege is expressly excluded as a reasonable excuse for non-compliance with a notice to produce unless the following conditions are met:

  1. a court has previously made an order for the document to be the subject of legal professional privilege; or
  2. the document is produced to the Commission within the time specified in the Notice, along with a claim that the document is subject to legal professional privilege and the Commission accepts the claim that the document is the subject of legal professional privilege[1].

What if you are not called but would like to make a submission?

The Commission is likely to call for public submissions. The Commission was given broad powers under the Letters Patent to decide how it would like to receive evidence. We expect that information on public submissions probably won’t be known for a short while.

How does this Commission sit with other existing enquiries?

As you may know, there is a lot of activity in the aged care sector including other government enquiries such as the Department of Health’s current work around a single quality framework where public submission closed just recently.  The Letters Patent require the Commission to take into account this existing work and other enquiries by developing appropriate frameworks to share information and evidence and avoid duplication (and trauma to those involved in giving evidence).

How can we help?

Griffin Legal has extensive experience in assisting organisations appearing before Royal Commissions. We can assist in responding to a Notice to Produce including evidence collation and preparing individuals required to appear before the Commission.

In the meantime, your organisation may wish to consider how it prepares its organisation for the Commission.  Whether this be educating staff and clients on the process and what to expect through to considering the risks your organisation could be exposed to in this broad inquiry.

Please contact Claire Carton if you would like to discuss any concerns your organisation may have.

[1] section 6AA(1)(b) and (2)

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