On 15 February 2021, an amendment to the Aged Care Act 1997 (Cth) was passed by the Federal Parliament. It replaces the current mandatory reporting requirements in the Aged Care Act 1997 (Cth) (Act) and introduces the Serious Incident Response Scheme (SIRS).
It is expected that the SIRS will commence on 1 April 2021.
Broadly, the SIRS requires aged care providers to identify, record, manage, resolve and report all serious incidents that occur, or are alleged, or suspected to have occurred, in a residential aged care service. The SIRS regime will replace the current reporting requirements in the Act.
What does this mean for providers?
The SIRS will apply to residential care or flexible care provided in a residential aged care setting and will require providers to establish a documented set of protocols, processes, standards and operating procedures to manage 'reportable incidents'. Reportable incidents are defined as incidents that have occurred (or are alleged or are suspected of having occurred) and include instances of:
- unreasonable use of force against the residential care recipient;
- unlawful sexual contact, or inappropriate sexual conduct, inflicted on the residential care recipient;
- psychological or emotional abuse of the residential care recipient;
- unexpected death of the residential care recipient;
- stealing from, or financial coercion of, the residential care recipient by a staff member of the provider;
- neglect of the residential care recipient;
- use of physical restraint or chemical restraint in relation to the residential care recipient (other than in circumstances set out in the Quality of Care Principles); and
- unexplained absence of the residential care recipient from the residential care services of the provider (Serious Incidents).
The SIRS framework is broader than the current 'reportable assault' framework that requires providers to report incidents of alleged, suspected or actual reportable assaults, to Police and the Department of Health within 24 hours. The current exceptions to reporting, including where there alleged perpetrator has a cognitive impairment, has not been included in the SIRS framework.
The SIRS framework provides protections for people who disclose incidents of abuse or neglect in aged care services. These protections extend to both existing and former employees as well as current and past care recipients, their families and others supporting them, including volunteers.
Overall, the new SIRS framework is designed to enable providers to effectively respond to Serious Incidents and take steps to ensure they do not reoccur. The SIRS will require providers to effectively manage and take reasonable steps to prevent Serious Incidents, including through implementing and maintaining effective governance systems for the management and reporting of incidents of abuse and neglect.
Penalties and ACQSC involvement
The ACQSC will be responsible for implementing the SIRS and providers will be required to report all Serious Incidents the ACQSC. The ACQSC will be empowered to take regulatory action to address non-compliance and issue compliance notices in relation to obligations under the SIRS.
Significant civil penalties and offences have been introduced for contravention, including where a person threatens to cause detriment to another. This represents an expansion of the penalties and protections available to care recipients under the current Act.
While the SIRS represents the implementation of a key recommendation contained in the Australian Law Reform Commission’s report Elder Abuse – A National Legal Response, and largely mirrors the incident management and disclosure protection scheme featured in the NDIS, the SIRS framework also represents a significant increase in the responsibilities of providers to report incidents.
Providers should ensure their reporting processes and systems are aligned with the more stringent requirements of the SIRS well before the expected commencement date of 1 April 2021.
Contact us for more information about how to apply these changes.