Code of Conduct
Approved providers, aged care workers and governing persons will all be required to comply with the provisions of the Code that are applicable to them. Additionally, approved providers will be required to take reasonable steps to ensure aged care workers and governing persons of the approved provider, comply with the provisions of the Code.
The Code is yet to be published. However, it will be based on the NDIS Code of Conduct, and will include a requirement to provide care in a safe and competent manner, free from all forms of violence, discrimination, exploitation, neglect, abuse and sexual misconduct.
Who is an aged care worker?
An aged care worker means an individual employed or otherwise engaged by the provider, including those working voluntarily. It also extends to individuals employed or otherwise engaged as a contractor/subcontractor who provide care or other services to care recipients.
Who is a governing person?
A governing person of an approved provider means an individual who is one of the key personnel of the provider (see our previous blog post on key personnel here).
Enforcement of the Code
Functions of the Aged Care Quality and Safety Commissioner
The Aged Care Quality and Safety Commissioner (ACQSC) will be empowered to take action in relation to compliance with the provisions of the Code that apply to an approved provider, an aged care worker or a governing person.
Notice requirements
The ACQSC may give an approved provider written notice if satisfied that the approved provider is non-compliant with its responsibilities under to the Code or is aware of information that suggests that the provider is non-compliant with those responsibilities.
The ACQSC may also, by written notice, require a person to attend to answer questions or give such information or documents that are related to the providers compliance with the Code.
Non-compliance
An approved provider, aged care worker or a governing person who fails to comply with the provisions of the Code is liable for a civil penalty of 250 penalty units.
Approved providers are also at risk of a sanction being imposed, including revocation or suspension of approved provider status, or restrictions on the approval of the provider.
Banning Orders
The ACQSC will be empowered to make a banning order prohibiting or restricting an individual who is or was an aged care worker or governing person, of an approved provider from:
- being involved in the provision of any type of aged care or specified types of aged care; or
- engaging in specified activities as an aged care worker, or as a governing person, of the provider.
One of the following must be satisfied for a banning order to be made:
- the ACQSC reasonably believes that the individual did not comply, is not complying or is not likely to comply with a provision of the Code that is applicable; or
- the ACQSC reasonably believes that the individual is not suitable or reasonably believes there is an immediate or severe risk to the safety, health or well‑being of one or more care recipients if the individual:
- is involved, or continues to be involved, in the provision of any type of aged care or the specified types of aged care; or
- engages, or continues to engage, in the specified activities as an aged care worker, or as a governing person, of the approved provider; or
- the individual has at any time been convicted of an indictable offence involving fraud or dishonesty; or
- the individual is an insolvent under administration.
A banning order may be made in respect of an individual who has not previously been an aged care worker or a governing person where the ACQSC reasonably believes that the individual is not suitable. We have previously summarised the applicable suitability matters here.
The banning order may apply generally or be of limited application. It may be permanent or for a specified period and may be made subject to conditions. Importantly, the banning order remains in effect even if the individual ceases to be an aged care worker or a governing person.
Notice requirements
Written notice of intention to make a banning order must be given by the ACQSC either to the approved provider or the individual. Notice does not need to be provided where the ACQSC reasonably believes that there is an immediate and severe risk to the safety, health or well-being of one or more care recipients if a banning order is not made.
The notice must set out the reasons why the ACQSC is considering a banning order, invite the individual to make submissions in writing within 14 days of the notice and inform the individual that the ACQSC may after consideration of their submissions, make the banning order. The decision to impose a banning order is a reviewable decision.
Contraventions of banning orders
An individual who engages in conduct in breach of a banning order, or an approved provider who fails to take reasonable steps to ensure that an individual does not breach a banning order, is liable to a civil penalty of 1,000 penalty units.
What can providers do to prepare?
Whilst the Code is not yet available, approved providers should review the NDIS Code of Conduct, which is likely to impose similar obligations, and remain alert to the publication of the Code.
Approved providers should also put their aged care workers and governing persons on notice that they will be required to comply with the Code from 1 December 2022.
Panetta McGrath is able to assist providers and individuals in preparing submissions in response to a Notice of intention to make a banning order.
For more information, or to discuss how we may be able to assist your business, please contact Panetta McGrath Lawyers on (08) 9321 0522.
