The new Aged Care Act goes further than the Royal Commission into Aged Care Quality and Safety recommended by introducing criminal penalties for fault-based offences, the law firm has warned in a webinar for aged care providers.
MinterEllison's Penelope Eden (above left), who leads the firm's Aged Care practice, hosted the webinar on Tuesday for around 150 attendees on the proposed changes to the new Aged Care Act.
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She was joined by Virginia Bourke (above right), Chair of Not For Profit aged care provider Mercy Health, which operates 30 aged care homes in Victoria, New South Wales, Queensland and Western Australia.
The new legislation is a "paradigm shift" and many providers have welcomed the rights-based approach to delivering services that has been incorporated in the legislation.
However, Virginia cautioned there has been a "very strong response" from providers about the proposed statutory duties being "disproportionate and punitive" given these duties are not replicated in adjacent sectors such as health and disability. This presents a risk of deterring directors, senior executives and managers from working in the sector.
The issues of statutory duty and proposed penalty provisions have also received "a lot of air time" in her conversations, Penelope said.
Both speakers highlighted the importance of balancing the rights of older people to high quality of care, and valuing the challenging work done by aged care workers and everyone involved in the provision of care.
New statutory duties a challenge for providers
Two new statutory duties are created in the new Act. Registered providers will have a statutory duty to "ensure, as far as reasonably practicable, that their conduct does not adversely affect the health and safety of individuals with whom they are delivering funded aged care services," Penelope said.
There is also a "separate duty for responsible persons to exercise due diligence to ensure the registered provider complies with its statutory duty," she added.
The duties extend to those responsible for making executive decisions, any person with "authority, responsibility or significant influence over planning, directing or controlling the activities of the provider, a registered nurse who has overall management of the nursing services of the provider, and any person who's responsible for the day to day operations of the registered providers duty."
"The conduct will amount to a serious failure where it exposes an individual receiving funded aged care to a risk of death, serious illness, injury, and involves either a significant failure or is part of a systemic pattern of conduct," Penelope said.
When a finding of a serious failure has been made, a range of penalty provisions will apply - from 150 penalty units up to a thousand penalty units.
The Exposure Draft also proposes the criminal sanction of a prison term for registered providers who are responsible persons for "the most serious offences, those where the provider has been reckless, perhaps, or demonstrated contumelious disregard for the health and safety of those in their care."
"Criminal sanctions were not proposed by the Royal Commission, but were part of an election commitment by the Albanese government and this is understandably a concerning development for providers," Penelope said.
Both Penelope and Virginia encouraged attendees to get involved in the consultation and provide feedback to the Government on the proposals, particularly now the three week extension until 8 March 2024 has been granted.
