HEALTH AND DISABILITY SERVICES COMPLAINTS OFFICE NATIONAL CODE OF CONDUCT FOR HEALTH CARE WORKERS IN WESTERN AUSTRALIA 8 February 2018
ABOUT ACSA Aged & Community Services Australia (ACSA) is the leading aged care peak body supporting over 700 church, charitable and community-based, not-for-profit organisations. Not-for-profit organisations provide care and accommodation services to about one million older Australians. 1 ACSA represents, leads and supports its members to achieve excellence in providing quality affordable housing and community and residential care services for older Australians. Aged care providers make a significant $17.6 billion economic contribution to Australia, representing 1.1% of GDP by producing outputs, employing people and through buying goods and services. The direct economic component is akin to the contribution made by the residential building construction and sheep, grains, beef and dairy cattle industries. 2 ACSA members are important to the community and the people they serve, and are passionate about the quality and value of the services they provide, irrespective of their size, service mix or location. ACSA CONTACTS Derek Dittrich, Manager Policy and Member Advice Aged & Community Services Australia 246 Glen Osmond Road FULLARTON SA 5063 08 8338 7111 Derek.Dittrich@acsa.asn.au Deidre Gerathy, Policy Development Officer Aged & Community Services Australia Rowland House Suite 5, Level 1, 10 Thesiger Court DEAKIN ACT 2600 02 6282 7827 Deidre.Gerathy@acsa.asn.au www.acsa.asn.au 1 Australian Government, Department of Health, 2016-17 Report on the Operation of the Aged Care Act 1997, November 2017. 2 Deloitte Access Economics, Australia s aged care sector: economic contribution and future directions, Aged Care Guild, June 2016, page 24. ACSA submission National Code of Conduct for Health Care Workers in Western Australia Page 2 of 6
NATIONAL CODE OF CONDUCT FOR HEATLH CARE WORKERS IN WESTERN AUSTRALIA INTRODUCTION The aged care industry takes its responsibility to ensure older Australians receive the highest quality of services very seriously. The number one priority for aged care providers is the safety, wellbeing and quality of life of those in their care. ACSA supports the proposal for unregistered aged care workers who provide health care to be subject to the National Code of Conduct for Health Care Workers 3. Laws should be in place in Australia to protect the public from health care workers who do not practice in a safe, competent and ethical manner. ACSA s preference is for the National Code to be legislated and implemented in the same way in all States and Territories. Having a set of clear and simple laws based on a national framework and using the same definitions is easier to administer and understand for the wide range of affected people including consumers, advocates, staff in aged care and other facilities, educators, regulators etc. The Health and Disability Services Complaints Office will need to support implementation of the National Code with educational materials, training and transitional funding. It is also essential that the various State and Commonwealth regulatory bodies, potentially involved with a complaint about a health care worker in Western Australia, work well together minimising overlaps and avoiding gaps. AGED CARE REGULATION There are three Commonwealth entities with responsibilities to support the delivery of high quality aged care services the Australian Aged Care Quality Agency; the Australian Department of Health and the Aged Care Complaints Commissioner. Other organisations can also have a role when things go wrong including the police and the Australian Competition and Consumer Commission as well as advocacy services to support families and aged care recipients. In addition, aged care facilities are subject to (amongst other legislative requirements) workplace health and safety obligations to eliminate or reduce risks in facilities. This includes responsibilities for the safety of employees and other people in the workplace including residents and visitors. All these systems and regulators need to be working well to minimise overlaps in responsibilities and to ensure there are no gaps. This will include the Health and Disability Services Complaints Office as the regulatory entity for the National Code in Western Australia. GENERAL COMMENTS Educational materials, training and transitional funding Educational materials, training and transitional funding will need to be made available by the Health and Disability Services Complaints Office for health care workers and their employers to ensure it is clear who is covered by the National Code and for what services and what the minimum standards of conduct are. Feedback and guidance from the Health and Disability Services Complaints Office on best practice in preventing and responding to adverse events will support health care workers and their employers. 3 ACSA submission to the Australian Law Reform Commission Elder Abuse Discussion Paper; 1 March 2017, page 9. ACSA submission National Code of Conduct for Health Care Workers in Western Australia Page 3 of 6
Processes for making and responding to complaints Processes should support the aim of the National Code to improve the quality of health care and the behaviour of health care workers. Processes for making and responding to complaints must be efficient, effective and non-bureaucratic. There should be an assessment of the best way to address the particular issue for the particular health care recipient. In some instances, mediation may be more appropriate and in others, it would be better for an investigation to be undertaken. There should be no confusion as to which organisation is responsible for considering a complaint. For example, whether a complaint about a health care worker working in aged care is considered under the National Code or by the Aged Care Complaints Commissioner 4. The Health and Disability Services Complaints Office should publish a flow chart of the process making it clear which regulator has responsibility for considering a complaint. SPECIFIC COMMENTS National Code clauses To ensure a national approach, ACSA supports the intention that all 17 clauses will be included in the National Code implemented in Western Australia (page 7 of the Consultation Paper). Definition of health service The definition of health service should be same in all States and Territories and therefore should ideally be the definition recommended in the Council of Australian Governments (COAG) Final Report (question 1 on page 11 of the Consultation Paper). Health care workers and their employers operate in different States and Territories. Having the same definition minimises regulation and provides the best opportunity to understand and meet the minimum standards of conduct. If the definition adopted is different to that recommended in the COAG Final Report, it should be clear what those differences are and why and what the differences mean in practice for health care workers and their employers. In relation to aged care, ACSA has discussed the COAG recommended definition of health service with officers from the Health and Disability Services Complaints Office. The boundaries of what is a health-related aged care service (paragraph (b) of the definition) or a support service necessary to implement a health-related aged care service (paragraph (f) of the definition) are currently unclear. As noted earlier in this submission, educational materials and training will need to be available to ensure it is clear which services are subject to the National Code. 4 The Aged Care Complaints Commissioner provides a free service for anyone to raise their concerns about the quality of care or services being delivered to people receiving aged care services subsidised by the Australian Government. ACSA submission National Code of Conduct for Health Care Workers in Western Australia Page 4 of 6
Complaint handling Consistent with a national approach, ACSA supports the following proposals in the Consultation Paper: 1. Permitting anyone to make a compliant about a breach of the National Code by a health care worker (question 3 on page 12). a. To prevent vexatious complaints, anonymous complaints should not be accepted. b. Anyone, who observes or becomes aware of an adverse event, should be comfortable to report such an incident and know who to report it to in the expectation it will be dealt with effectively. 2. Proposed amendments to the grounds for making a complaint to include a breach of the National Code and failure of a health care worker to comply with a prohibition order, including an interim order (question 4 on page 13). a. However, the definition should apply to a health care worker rather than a provider or a manager. 3. The timeframe for making a complaint to be consistent with existing arrangements in Western Australia (i.e. 24 months unless there is a good reason for a longer period) (question 5 on page 13). 4. Proposed amendments to permit own motion investigations into possible breaches of the National Code, at the discretion of the Director of the Health and Disability Services Complaints Office (question 6 on page 14). a. The Director will need to ensure there is no conflict with other regulators (either Commonwealth, State or Territory). Prohibition orders Grounds to issue a prohibition order ACSA supports the proposed grounds for issuing a prohibition order, including interim orders, in Western Australia (question 8 on page 16). The goal should be that the public and health care workers be entitled to the same protections and processes regardless of which State or Territory they live and work in. Right to be heard and right of appeal In relation to the right to be heard and right of appeal it is not clear in the Consultation Paper how the proposed processes and timeframes are intended to work when there is a need for an interim prohibition order. Interim orders may be issued where a health care worker poses an immediate risk to public health and safety and an investigation into their conduct is yet to be completed. The confusion arises because the Consultation Paper on page 17 says that a health care worker will have the right to be heard before the Director makes any decision while the time period within which an application for review or appeal of a prohibition order is typically 28 days after the decision to issue an interim prohibition order or prohibition order (emphasis added). Penalties for breach ACSA notes there is already inconsistency with the penalties applying in South Australia, New South Wales, Queensland and Victoria. ACSA does not have a view about the level penalties, but considers health care workers should receive the same outcome in similar circumstances regardless of where they live and work (question 12 on page 18). Penalties also need to be proportionate to the breach. ACSA submission National Code of Conduct for Health Care Workers in Western Australia Page 5 of 6
Other ACSA supports the following proposed approaches in the Consultation Paper: 1. Publishing information about prohibition orders, including interim orders (question 13 on page 18). 2. Making it an offence to provide services in Western Australia if the health care worker is the subject of a prohibition order, including an interim order, in another jurisdiction (question 14 on page 19). 3. Permitting the Director of the Health and Disability Services Complaints Office to monitor compliance with prohibition orders, including interim orders, in Western Australia (question 15 on page 19). ACSA submission National Code of Conduct for Health Care Workers in Western Australia Page 6 of 6