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By Alex KohnMatt Gerathy & Nicholas RegenerMakinson d’Apice, Solicitors, Sydney

The Aged Care Sector has been subject to intense political, community and regulatory scrutiny over recent times but that scrutiny will increase significantly over the coming years with the announcement of the Royal Commission.

The Royal Commission will be directed to inquire into all forms of Commonwealth-funded aged care, with the commissioners required to produce an interim report by the end of October 2019, and a final report by the end of April 2020.

Terms of Reference

On 9 October 2018, the terms of reference were released for the Royal Commission into Aged Care Quality and Safety. In brief, the terms of reference cover the following broad areas:

  • the quality of aged care services, the extent to which those services meet the needs of people accessing them, the extent of substandard care being provided (including mistreatment and all forms of abuse), the causes of any systemic failures and any actions that should be taken in response;
  • how best to deliver aged care services to people with disabilities (including younger people) and the increasing number of Australians living with dementia;
  • the future challenges and opportunities for delivering accessible, affordable and high quality aged care services taking into account the desire of some people to remain living at home as they age and dealing with quality aged care in remote, rural and regional areas;
  • what can be done to strengthen the system of aged care services to ensure that they are of high quality and safety;
  • how to ensure that aged care services are person-centered, including through allowing people to exercise greater choice, control and independence, and improving engagement with families and carers;
  • how best to deliver aged care services in a sustainable way including through innovative models of care, increased use of technology and investment in the aged care workforce and capital infrastructure;
  • any matter reasonably incidental to the above.

What to expect in the lead up to the Royal Commission

The Royal Commission will be a very challenging period for those involved in the Aged Care Sector.  Well before any public hearings commence, Summonses to Produce Documents will be issued to a large number of organisations seeking a broad range of documents focusing on those areas which are covered by the terms of reference, or ancillary to those terms.

The Commission staff will closely analyse documents produced by various organisations within the sector before determining what public hearings are to take place, who is to be involved in those public hearings and what will be the focus of those public hearings.

Although the public hearings are what gains media and public attention, the preparatory steps are just as important for any organisation which might face scrutiny.

Legal and Administrative Process

There are number of preliminary legal and administrative issues which should be considered at this stage:

Phase 1 (Aged Care Providers – for immediate action)

  • Develop a team to manage issues relating to the Royal Commission. This might typically include people with expertise in relation to client care issues; staffing/administrative issues; media issues; engagement with government and regulatory authorities.
  • A clear message as to the stance of your organisation should be communicated to all relevant stakeholders.
  • Consider the need to develop a strategy on organisational change. This would give a more powerful message than words alone that you are taking steps to ensure that what may have happened in the past will not happen again.
  • As an organisation, you should be seen to be transparent, confident and open with your stakeholders. Provide regular updates to stakeholders.  Do not appear to be in crisis mode.
  • Consider who would be the appropriate spokesperson for media approaches.
  • How will media enquiries be directed to that person?
  • Who within your organisation has sufficient knowledge of historical matters to properly brief that spokesperson on relevant issues?
  • Be structured in your approach and have a well thought-out plan.
  • What message will be given to your clients? How and when will that message be communicated?  How and when will the message be updated?
  • Does your organisation have adequate internal media/issues management advice or is an external consultant required?

We strongly recommend that a document review process commence as soon as possible.  In this way you will be prepared for any approaches of the Royal Commission which might have a very strict timeline.  One of the features of a Royal Commission is that organisations are generally not given very much time to collate and produce the documents to the Commission.  Sometimes this can only be a week or two and when decades of historical records are involved, that can be a very difficult exercise. Early preparation is very important.

In our next article, we will cover Phase 2, which covers the preliminary legal and administrative issues to be considered over the next few months, as well as Phase 3 of what to expect during the during Royal Commission.

Expertise in Royal Commission Work

Makinson d’Apice has considerable experience in Royal Commission and Inquiry work. Our firm has advised clients on how to prepare for the Royal Commission by:

  • assisting in the collation and analysis of documents;
  • preparation of witness statements;
  • liasing with Royal Commission staff;
  • representing clients at private and public hearings of the Royal Commission;
  • preparation of written submissions to the Royal Commission

Royal Commissions are unique in the way evidence is compiled and public hearings are conducted. Preparation for and attendance at a Royal Commission requires adroit and delicate handling, with appropriate respect for privacy and confidentiality.

If you require a safe pair of hands please contact us direct for advice and support.

Contact the author directly by email or by telephone.

 

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