Whistleblowing in Aged Care: Protections Under the New Aged Care Act

Whistleblowing in aged care is vital for ensuring the safety and well-being of our elderly population. This article delves into the new Aged Care Act and its provisions for whistleblower protection. We explore how these protections will allow individuals to report misconduct without fear of retaliation.

Key takeaways

The Royal Commission found that the Aged Care Act 1997 is no longer fit for purpose.
The forthcoming Aged Care Act (expected 1 July 2025) will transition to a rights-based approach to aged care and enhance whistleblower protections.
Whistleblowing protections are aimed at ensuring the provision of safe, transparent care for residents in aged care facilities.
The enhanced protections will motivate employees, patients, and other stakeholders to not only report compliance-related issues but also voice their concerns about the overall quality of care and any potential rights violations.
Aged care providers will be required to implement a whistleblowing system, and train their staff to handle whistleblower disclosures.

Background: The Royal Commission into Aged Care Quality and Safety

In 2017, revelations came to light after family members of patients at a South Australian healthcare service reported elder abuse and systemic neglect in the facility. The shocking incidents at Oakden Older Persons Mental Health Service prompted a Royal Commission into Aged Care Quality and Safety.

The facility's failures were emblematic of broader concerns about the quality and safety of aged care services across Australia. In the proceeding investigation, the Royal Commission revealed a multitude of systemic failures that went beyond individual health facilities. These findings painted a grim picture of a sector in need of significant reform, from its culture and leadership to its approach to training and accountability.

Final report

The Royal Commission's final report in March 2021 presented a comprehensive review of the aged care sector. Among its numerous recommendations, the report emphasised the need for:

A new Aged Care Act: The Commission recommended replacing the Aged Care Act 1997. This new act would be person-centred and prioritise the rights, needs, and preferences of the elderly.
Strengthened regulation: The establishment of an independent Aged Care Commission to oversee the approval, accreditation, assessment, complaints resolution, and monitoring of aged care providers.
Improved staffing: The report emphasised the need for better staffing ratios, more training, and better pay for aged care workers to ensure quality care.
Increased transparency: Aged care providers should be mandated to report on care standards, staffing levels, and instances of substandard care.
Enhanced home care: The Commission recommended increased funding and support for home care services, allowing more Australians to receive treatment and services in their homes.
Better integration with health services: The report highlighted the need for better integration between aged care services and other health services, ensuring comprehensive coverage for the elderly.
Reporting hotline: A robust system for reporting and addressing complaints, highlighting the importance of whistleblowing as a means to identify and rectify issues in the sector.

Aged care compliance in Australia - whistleblowing protections

The new Aged Care Act and whistleblower protections

The new Aged Care Act in Australia is expected 1 July 2025.

The Act aims to enhance whistleblower protections, particularly addressing the concerns raised by the Royal Commission about the fear of reprisal deterring complaints in residential aged care facilities. These changes are designed to bring aged care whistleblower protections more in line with those found in the whistleblower legislation of the Corporations Act 2001 and the National Disability Insurance Scheme (NDIS) Act.

Summary of changes

Expanded protections: The Act is set to broaden the scope of reportable incidents, which currently focus on serious incidents under the Serious Incident Response Scheme (SIRS). The new provisions will encompass services provided in home and community-based aged care settings.

Who can disclose: The new Act allows a broad range of individuals, such as aged care workers, responsible persons of registered providers, and recipients of aged care services, along with their carers and advocates, to make disclosures.

Disclosure recipients: Disclosures can be made to various officials, including staff of the Aged Care Quality and Safety Commission, the Department of Health, aged care workers, police officers, and other authorised individuals.

Disclosure requirements: To be protected, whistleblowers must provide their name, have reasonable grounds to suspect a violation of aged care legislation, and make the disclosure in good faith.

Anonymous complaints: The Act encourages whistleblowers to disclose their identity, but it still allows for anonymous complaints.

Empowerment and prevention: The proposed changes aim to empower individuals to report potential breaches of the law without fear of repercussions, which is crucial for safeguarding older people in funded aged care services.

Types of protected disclosures

Under the new Aged Care Act, protected disclosures encompass reports of wrongdoing in aged care homes and misconduct within the government-funded aged care sector. It is important to note that the protection for whistleblowers is restricted to disclosing information about reportable incidents, and other types of disclosures may not be protected.

Legal safeguards and confidentiality

Whistleblowers in aged care are provided with legal safeguards, including protection from civil or criminal liability, voided contractual obligations, and the assurance of confidentiality. Public companies or large proprietary companies must have a whistleblower policy by 1 January 2020. This policy should meet the requirements set out in the Whistleblower Law and any related regulations.

Adherence to these legal safeguards and preservation of confidentiality allows aged care providers to foster an environment where whistleblowers feel secure reporting witnessed misconduct, ensuring superior care quality for aged care residents.

Current mandatory reporting laws in aged care

Mandatory reporting laws in aged care are outlined in the Aged Care Act of 1997, which ensures that reportable incidents are reported in accordance with the guidelines set out in the Act to guarantee the safety of residents in aged care facilities.

The Serious Incident Response Scheme (SIRS) is an example of such mandatory reporting. It focuses on the prevention and reduction of abuse and neglect incidents in aged care settings.

Serious Incident Response Scheme (SIRS)

The SIRS is a national framework formulated to guarantee proper management and reporting of serious incidents in residential aged care. It aims to minimise the abuse and neglect of older people receiving aged care services. Aged care providers who receive Commonwealth funding are required to adhere to the SIRS, which mandates the reporting and response to serious incidents.

The SIRS was implemented on 1 April 2021 for residential aged care and on 1 December 2022 for home care services, with the objectives of minimising the risk of abuse and neglect of older Australians in residential services and assisting in the reduction of abuse and neglect of older people receiving aged care services.

Types of reportable incidents

Under the SIRS, reportable incidents cover a broad spectrum of serious misconduct, including:

Unreasonable use of force
Unlawful sexual contact
Inappropriate sexual conduct
Psychological or emotional abuse

These incidents highlight the need for vigilant reporting and whistleblowing to ensure the safety and well-being of aged care residents.

Beyond the previously mentioned incidents, the SIRS also considers neglect, defined as a breach of duty of care leading to harm, injury, poor health outcomes, or emotional distress, as a reportable incident. This further underscores the importance of whistleblowing and reporting mechanisms in aged care.

Reporting process

The reporting process under the SIRS involves the following steps:

Comprehending the incident
Addressing the incident
Documenting and reporting the incident
Examining the incident

Reports, including the final report, must be submitted to the relevant authorities, such as the Department of Health and Aged Care and the Aged Care Quality and Safety Commission.

The SIRS requires specific templates and forms for incident reporting, available on the Aged Care Quality and Safety Commission website. This standardised reporting process ensures a consistent approach to documenting and addressing incidents across the aged care sector.

Consequences of non-compliance

Failing to comply with mandatory reporting laws in aged care can lead to severe consequences, including penalties, sanctions, and reputational damage. Non-compliance with the Aged Care Act can result in fines of up to $55,500 for individuals, revocation of approved provider status, and the imposition of sanctions.

Aged care providers who do not comply with the Serious Incident Response Scheme may face additional consequences, including findings of non-compliance, sanctions, and potential ramifications on the quality of care provided to residents. This emphasises the critical nature of compliance with mandatory reporting laws in aged care.

Obligations for aged care providers

The Department of Health and Aged Care's latest consultation paper, A New Aged Care Act exposure draft, was drafted in December 2023. In summary, aged care providers will be obligated to:

Implement and maintain an incident management system
Implement and maintain a complaints management system
Implement measures to protect whistleblowers
Train aged care workers to handle whistleblower disclosures
Ensure compliance with mandatory reporting laws.

Aged care providers must adhere to a clear process for reporting incidents, document and address serious incidents, and submit regular reports to the relevant authorities. By identifying, recording, managing, resolving, and reporting all serious incidents that occur or are alleged, providers can ensure compliance and accountability in the sector. Non-fulfillment of these obligations can lead to penalties, including:

Civil penalties
Non-compliance Notices
Revocation of approved provider status
Imposition of sanctions

Therefore, aged care providers must prioritise compliance with legislation and proper governance.

The importance of speaking up in aged care

Voicing concerns in aged care plays a critical role in identifying and addressing poor care, abuse and discrimination. It builds a culture where openness and responsibility thrive. Whistleblowing is key to uncovering misconduct, thus elevating care standards and safeguarding aged care residents.

For aged care providers, effective whistleblowing programs are essential. They enable:

Fair and clear investigations initiated by whistleblower reports.
Encouragement for staff and family members to report concerns.
Continual maintenance of high care standards.
Prompt response to emerging issues.

Anonymous reporting of incidents in aged care is particularly important to safeguard the well-being of the patient or resident. Elderly individuals are often in a vulnerable position and can be at risk of adverse reactions when incidents are reported.

By implementing a whistleblowing system like Elker, you are ensuring that the safety and dignity of staff and residents are prioritised and that any potential harm following a report is minimised.

Summary

The upcoming Aged Care Act marks a significant step in safeguarding aged care residents in Australia. It introduces whistleblower protections and calls for the implementation of robust incident management and whistleblowing systems, crucial for maintaining high standards of care. These protections ensure that patients, family members, and staff can report issues without fear of retaliation or victimisation.

For aged care facilities, implementing a whistleblowing program goes beyond meeting legal requirements. It's about creating a culture where safety and quality are paramount. These programs play a crucial role in safeguarding individuals who speak up, while also helping to uncover and resolve problems that may not be immediately apparent.

Elker is here to assist aged care providers with setting up and maintaining a complaints management system. Its secure, user-friendly incident management and whistleblower tools are designed to streamline compliance and facilitate effective reporting. With Elker, aged care facilities can confidently navigate the complexities of the new Aged Care Act, and ensure a safer and more accountable environment for their residents.

For a tour of the platform, book a demo with Elker today.