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Understanding the practical implications of looming aged care enforcement measures

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The concept of ‘high-quality care’ and a renewed focus on human rights are at the forefront of new aged care reforms. Increased statutory duties, as well as civil and criminal penalties, will also be introduced. But how will the changes play out in practice? Attwood Marshall Lawyers Wills & Estates Partner and Accredited Aged Care Professional Debbie Sage unravels the complexities and implications of these impending reforms.

As the aged care sector gears up for significant reforms with the new Aged Care Act, there is growing discussion around the practical implications of the enforcement measures proposed in the legislation, which due to its complexity has been plagued by delay.

An exposure draft of the proposed Act, released in December 2023, includes a new definition of “high-quality care” centred on the individual. This definition expects providers and aged care workers to be kind, compassionate, and respectful while offering tailored care that supports each resident’s needs, among other expected behaviours.

The new obligations are intended to lift the standard of care across the aged care sector, in line with the 2021 Royal Commission into Aged Care Quality and Safety’s vision of a rights-based approach to aged care.

The government only recently confirmed that the legislation won’t kick in until mid-2025, to factor in an extensive consultation period. That leaves time for changes, but looking at the current proposals, the new Act is expected to broaden the powers of the regulator (the Aged Care Quality and Safety Commission) and the system governor (the Secretary of the Department of Health and Aged Care).

From a legal standpoint, questions have arisen over the increased statutory duties on providers and workers and the introduction of civil and criminal enforcement penalties and compensation pathways included in the draft.

While these provisions signify a crucial step towards accountability and improvement, further review will be needed to make sure that any penalties imposed on providers and aged care workers are proportionate to the offence.

Here, we delve into some of the most significant proposed changes related to enforcing these new statutory duties and compliance requirements.

New statutory duties and obligations for providers and workers

While the definition of high-quality care will not be used as a regulatory tool with a pass-or-fail approach, it is understood that providers will need to demonstrate their commitment to achieving this heightened level of care through quality assessments and regular discussion with the regulator.

There will however be an overarching statutory duty placed on registered providers such as aged care facilities to make sure as far as “reasonably practicable” that their actions do not adversely affect the health and safety of those in their care.

“Responsible persons,” meanwhile, will have a separate statutory duty to exercise due diligence and ensure they and the registered provider they work for are complying with their duties under the Act. This category of people will replace the old key personnel definition and includes individuals who have authority or significant influence over the care of residents, including aged care workers and registered nurses.

These responsible individuals will also have to adhere so far as “reasonably practicable” to a new Statement of Rights and Statement of Principles – all aimed at making sure registered providers and workers are not adversely affecting the health and safety of individuals in their care – complementing existing Work Health and Safety legislation and existing duties under state and territory law.

But how do you interpret what is “reasonably practicable” in an aged care setting?

The draft legislation identifies some factors to evaluate whether the duty has been complied with. These include the following:

  • What was the likelihood of the adverse event?
  • What was the degree of harm it could cause?
  • What did the person know (or ought to have known) about eliminating or minimizing the adverse event?
  • Were there policies or procedures in place to prevent the risk of the event occurring?


The trouble is that even if you have a safe work environment, working technology and equipment, and excellent staff training and supervision, careful consideration must also be made of a resident’s unique circumstances – particularly the rights of those individuals to exercise choice and control, and to dignity of risk (i.e., the right to live the life you choose, even if your choices involve some risk).

A new world of enforcement and compliance: balance will be needed

Under the current proposals, a responsible person could be hit with financial or criminal penalties if their conduct is seen to constitute a serious failure to comply with their statutory duties.

The Aged Care Quality and Safety Commission is also expected to have broader oversight, monitoring and enforcement powers to investigate compliance failures or potential strict liability offences. Commission officers will, for example, be able to enter care homes without consent if they believe there is a “severe risk to the safety, health and wellbeing” of a resident.

Other expected enforcement powers include the ability of the regulators to apply to court for civil penalty orders, or an injunction against a registered provider, or step in to appoint an external manager to a provider where failures have led (or could lead) to residents being unable to access services or the provider becoming insolvent.

A new system will also be in place for the types of warning notices that both the Commission and the Aged Care department can send to providers in the event of suspected non-compliance or wrongdoing. Civil penalties will apply if the alleged failures are not addressed, and individuals could also be called on to provide facts and documentation during an investigation.

In line with the Act’s focus on consumers and their rights, there will also be a revised complaints process, while criminal penalties could be issued to substandard registered providers, responsible persons, and aged care workers who consistently do the wrong thing with no or little regard for the safety and wellbeing of older people.

Banning orders are already in place for people who pose an immediate risk to those in care or who have been convicted of offenses involving fraud or dishonesty. But the process is set to be strengthened under the draft Act, with the Commissioner given new powers and a new register likely to be set up for current and former registered providers and individuals.

New compensation avenues will also be available to target instances of “serious, poor quality and unsafe care,” as recommended the Royal Commission recommended. Under the proposed scheme, affected individuals could obtain compensation with a 6-year statutory limitation period to bring a claim.

The claims would relate to a registered provider’s alleged breach of criminal offence provisions or incidents where the registered provider’s actions have resulted in serious illness or injury to an older person accessing Commonwealth-funded aged care services.

The process would entail the Commission seeking a court order for compensation, while individuals may also pursue a court order themselves.

However, many legal experts are monitoring how the new “compensation pathways” proposed in the exposure draft will take shape in the final text. A fair few question marks are hovering over them. How will they operate in practice? Will they be effective? The proposals are currently unclear.

In previous consultations, the idea was floated that a registered provider could also offer an individual compensation once an agreement is reached through out-of-court mediation and resolution discussions. The provider could also compensate a resident as part of an agreement with the Commission to address compliance failures.

However, more balance is needed to address the unintended consequences of the duties that are likely to be imposed. Enforcement should be proportionate and not deter workers from reporting incidents for fear of facing criminal sanctions or financial penalties.

The importance of the new aged care reforms cannot be overstated, as they prioritise high-quality care and human rights. Ongoing review and refinement will be crucial to ensuring the effectiveness and proportionality of the legislation.

Attwood Marshall Lawyers – helping people at every stage of life

At Attwood Marshall Lawyers, we are passionate about the aged care sector and continue to monitor the industry changes that will impact aged care providers, residents and care recipients.

The aged care industry is constantly changing, and it is vital that individuals transitioning to aged care speak to an accredited professional to understand the regulations and policies that will impact their care choices and learn how to best negotiate with aged care facilities.

Our Aged Care department has three accredited aged care professionals who are well-equipped to provide valuable insights and advice across all aspects of aged care, including at-home care packages, retirement villages, and residential care facilities.

Attwood Marshall Lawyers also has specialist Employment Lawyers who act for employees across all industries. If you are an aged care worker and ever find yourself in a dispute with your employer or your industry’s regulator and want a confidential chat about your rights, please know that we are here to help.

If you or a loved one needs legal advice about aged care services please get in touch with our Wills & Estates and Aged Care Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071 at any time.

If you need legal advice about your rights in the workplace, please contact our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.

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Debbie Sage - Wills and Estates Senior Associate

Debbie Sage

Partner
Wills & Estates

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Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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