The Royal Commission into Aged Care Quality and Safety is to examine the quality of care in residential and home care services provided to senior Australians, as well as to younger persons with disability who are living in residential aged care.

The calling of the Royal Commission will bring a dramatic escalation in media glare and public scrutiny to the Aged Care sector – a sector that has already endured 20 aged care reviews in the last 20 years.

It is inevitable that the Royal Commission will ultimately deliver recommendations requiring systemic, structural and cultural change to the Aged Care sector and its internal and external regulatory systems.

The failure of the current regulatory systems to instil public, consumer and workforce confidence and trust in the delivery of safe, quality and person-centred aged care services is evident in the recent Four Corners report, which prompted the calling of the Royal Commission. 

For management in the Aged Care sector a sobering reflection of the degree to which workforce confidence in the Aged Care sector has been eroded is the fact that over 1300 aged care staff came forward to report their concerns to Four Corners.  At the core of many of the concerns is the juxtaposition of the very significant medical, nursing and social needs of senior Australians in residential aged care and low registered nurse to resident ratios and the sector’s reliance on unskilled aged care workers.

A recent report by PwC has predicted a need for 120,000 registered nurses and over 400,000 aged care workers to meet the demands of Australia’s ageing population by 2040.

What subject-matter do we expect the Royal Commission to focus upon?

The terms of reference for the Royal Commission into Aged Care will be broad and the Commission will investigate matters of public interest, in particular:

  • management systems, structures and cultures;
  • staffing ratios and staffing requirements;
  • hygiene and quality of food;
  • failures in care, including social and mental health;
  • violence, abuse and neglect;
  • use of physical and chemical restraints, including over-prescription of medication;
  • efficacy of oversight, regulatory and complaint handling systems.

The Royal Commission will engage with a number of stake-holder groups involved in the Aged Care Sector, including State and federal Government agencies, the medical and nursing professions, aged care employee representative organisations, senior Australian representative organisations, Aged Care providers and disability representative and advocacy organisations.

The need to prepare for the Royal Commission

The Royal Commission, like the recent Royal Commission into Institutional Responses to Child Sexual Abuse and the current Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, will be highly emotive. 

To maximise the preservation of confidence and trust, stake-holders must anticipate the interest of the Royal Commission and undertake pre-emptive internal reviews with a view to putting any necessary remedial measures and system improvements in place before any deficiencies are publicly identified by the Commission.  Documentation produced as part of such an internal review may by subject to legal professional privilege if produced for the purpose of obtaining legal advice or in contemplation of litigation.  Legal advice should be sought prior to establishing a review.

Residents, families and employees that recognise that the management of an Aged Care provider is taking real and substantive steps to address concerns or improve care are less likely to make complaints to the Royal Commission, with the inevitable reputational damage, to achieve a similar outcome.

Further, a proactive management response, rather than mere inaction, blindness or an apology, will receive a more favourable hearing before the Royal Commission.

The compulsive legal powers of the Royal Commission and obtaining legal advice

A federal Royal Commission is not like the usual administrative governmental inquiry.

A Royal Commission can issue summonses requiring a person to appear at a hearing at a given time and place to give evidence and/or produce documents in their possession or control. 

Similarly, a Royal Commission can issue a written notice to a person to produce a document or thing specified in the notice or to give information or a statement in writing by a specified time.

Failure to comply with a summons or notice without reasonable excuse amounts to an offence with a penalty of imprisonment for 2 years.

The Royal Commissions Act 1902 (Cth) provides some protections for persons who are compelled to give evidence, produce a document or comply with a notice, including protections from dismissal for employees.

On the other hand, the voluntary production of privileged or confidential information to the Royal Commission may amount to a waiver of legal professional privilege or confidentiality.

Accordingly, legal advice should be sought when making strategic decisions to voluntarily provide information or to require the Royal Commission to issue a summons or notice requiring provision in order to ensure available protections are not waived.