The Royal Commission into Aged Care Quality and Safety handed down its final report, Care, Dignity and Respect, in February 2021, making 148 recommendations. Its first recommendation was to replace the Aged Care Act 1997 by 1 July 2023. An exposure draft was released in December 2023 with a final version being passed by Parliament in December 2024. The Aged Care Act 2024 (“the Act”) will come into force on 1 July 2025.
Key changes in the Aged Care Act
The Albanese government committed to including criminal penalties in the new Act – which were to apply to providers who breached standards. This was contained in the exposure draft, but in the wake of significant industry and Union lobbying, and Coalition opposition, the government was unable to retain criminal penalties in the new Act. It was argued that criminal penalties would lead to an exodus of key personnel. The removal of strict liability criminal offences places a greater burden on regulatory authorities such as the Aged Care Quality and Safety Commission and the Complaints Commissioner.
Statutory duties and penalties
The Act establishes two statutory duties: section 179, the Registered provider duty, and section 180, the responsible person duty. Breaches of these duties may result in civil penalties. The registered provider duty obliges a provider to ensure, “so far as is reasonably practicable, that the conduct of the provider does not cause adverse effects to the health and safety of individuals…”, whilst the responsible person duty imposes a requirement that the responsible person “must exercise due diligence to ensure (compliance) under s.179.”
Penalties up to 4800 penalty units ($1.5m) may be imposed under the Act. Such penalties can be multiplied if multiple individuals are involved in an adverse event. Other consequences include revocation or suspension of a provider or a variation of registration. In severe cases, an aged care worker or governing person may be banned from working in aged care. Penalties imposed for breaches of the Act do not preclude a negligence action at common law.
Restrictive practices and informed consent
A contentious provision in the new Act concerns the use of restrictive practices. Under section 163, in certain circumstances, a provider “is not subject to any civil or criminal liability for, or in relation to, the use of the restrictive practice in relation to the individual if, before 1 December 2026, informed consent … was given.” Notably, the Royal Commission made no recommendations that providers and staff be granted immunity.
Civil penalties are in operation in other areas of care; to date, the Federal Court has found for two participants in actions brought by the NDIS Quality and Safeguards Commission. In June 2023, the Court found that the provider, Australian Foundation for Disability, failed to protect a group home resident who drowned in a bathtub in 2019, fining the provider $400,000 for breach of NDIS Code of Conduct and NDIS Practice Guidelines (Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629). In April 2024, a disability support provider in NSW (LiveBetter Services Limited) was fined $1.8m for the same breaches. The fine was in relation to the death of an Aboriginal woman who died in her home in 2022 from complications associated with burns she sustained while under the care of its support workers. The Judge noted that the provider “(failed) to protect and prevent (her) from harm arising from unsafe supports and services”. (Commissioner of the NDIS Quality and Safeguards Commission v LiveBetter Services Ltd [2024] FCA 374 (fedcourt.gov.au).
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