Who does the Code of Conduct apply to?
The Code applies to approved providers, aged care workers (including contractors) and governing persons (such as directors). The Department has published guidance to assist providers and workers to comply with the Code and is seeking feedback on or before Tuesday, 18 October 2022.
The Code is drafted as a series of 'I must' statements, as follows:
'When providing care, supports and services to people, I must:
- act with respect for people’s rights to freedom of expression, self-determination and decision-making in accordance with applicable laws and conventions;
- act in a way that treats people with dignity and respect, and values their diversity;
- act with respect for the privacy of people;
- provide care, supports and services in a safe and competent manner, with care and skill;
- act with integrity, honesty and transparency;
- promptly take steps to raise and act on concerns about matters that may impact the quality and safety of care, supports and services;
- provide care, supports and services free from:
i. all forms of violence, discrimination, exploitation, neglect and abuse; and
ii. sexual misconduct; and
- take all reasonable steps to prevent and respond to:
i. all forms of violence, discrimination, exploitation, neglect and abuse; and
ii. sexual misconduct.
The Code mirrors the NDIS Code of Conduct, with some minor changes, the most notable difference being the addition of (b), which does not appear in the NDIS Code.
The Code Rules specify that the Code also applies to governing persons in their 'performance… of the responsibilities and functions of the governing person'. This means that the Code applies equally to governing persons, as it does to aged care workers.
Providers will need to develop policies and procedures and ensure aged care workers and governing person are trained on their Code obligations.
Monitoring, enforcement and penalties
There are civil penalty provisions for non-compliance with Code obligations. This includes fines of up to $55,500 for individuals and $277,500.00 for bodies corporate (at the time of writing).
Additional obligations are placed on approved providers as part of their responsibilities under section 54-1 of the Aged Care Act 1997 (Cth), to:
- comply with the provisions of the Code; and
- take reasonable steps to ensure that the aged care workers and governing persons of the approved provider comply with the provisions of the Code.
This places an extra layer of compliance with the Code on approved providers, and means that failure to comply with the Code, or to take reasonable steps to ensure that an approved provider's workers and governing persons comply with the Code may lead to regulatory action by the Aged Care Quality and Safety Commission (ACQSC).
The Code Rules contain additional monitoring and enforcement powers to ensure approved providers and their individual aged care workers and governing persons are comply with the Code. This empowers the ACQSC to:
- discuss Code compliance with approved providers or individual aged care workers or governing persons;
- request information or documents;
- carry out an investigation;
- refer information about Code compliance to other persons or bodies; and
- take any other action that the ACQSC considers reasonable.
In addition, the ACQSC may require approved providers, in relation to either contraventions of the Code by the approved provider, or individuals who are/were aged care workers or governing persons of the approved provider, to:
- carry out an internal investigation and provide the ACQSC with a written report within a specified time period,
- engage an appropriately qualified and independent expert to carry out an investigation and provide a written report to the ACQSC within a specified time period (at the approved provider's expense); and/or
- undertake specific actions in relation to compliance with the Code, within a specified time period.
These actions should be familiar to approved providers, as they are similar to powers that the ACQSC already has, in relation to monitoring and enforcing compliance with approved provider obligations more generally. Additionally, in relation to contraventions of the Code by individuals of an approved provider (either aged care workers or governing persons), the ACQSC may refer information about this contravention to the relevant approved provider and require the approved provider to take 'appropriate action' in relation to the individual's compliance with the Code.
The ACQSC is also enabled to engage directly with individuals (either aged care workers or governing persons) and require that individual to undertake actions specified by the ACQSC in relation to their compliance with the Code and within a specified period. The civil penalty provisions set out above for contravening the Code can also be imposed on individuals (in isolation from the approved provider which engaged them). These provisions also apply to former aged care workers and governing persons, which may lead to regulatory engagement from the ACQSC after a person has ceased their employment or left the aged care sector entirely.
The ability of the ACQSC to engage directly with individuals, require them to take certain actions and leverage penalties against them has the potential to shift engagement with the regulator. This will need careful consideration when drafting organisational policies and procedures and undertaking training of staff and governing persons.
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