Royal Commission into Aged Care Quality and Safety: Terms of Reference and Next Steps

Appointment of Commissioners

On 8 October 2018, Prime Minister Scott Morrison issued Letters Patent to the Honourable Justice Joseph McGrath and Lynelle Jan Briggs AO, formally commencing the Royal Commission into Aged Care Quality and Safety.

The Commission will be based in Adelaide, South Australia and will run for approximately 18 months.
Its Interim Report is due to be provided by 31 October 2019 and its Final Report by 30 April 2020.
The Commissioners are to begin their inquiry as soon as practicable.

Terms of Reference

The Letters Patent contain Terms of Reference for the Commission. The Terms of Reference are relatively broad and authorise the Commissioners to investigate a number of matters, including the following:

• the quality and safety of aged care services in Australia;
• the extent to which the aged care services meet the needs of the people accessing them;
• the extent of sub-standard care;
• how to best deliver care to sub-groups within the aged care sector, including younger people, people with disabilities and those living with dementia;
• future challenges and opportunities for delivering aged care services, including people’s desire to remain living at home as they age and in delivering aged care to rural, remote and regional Australia;
• the Government’s approach to person-centred care, including greater choice and independence and the encouragement of families and carers to be engaged in care related matters; and
• the shape of aged care services in the future with a focus on innovative models of care, technology and investment in workforce and infrastructure.

On its terms, the Royal Commission will not only focus on abuse or the more emotive issues arising in the aged care industry. This is highlighted by the preamble to the Letters Patent which talks to the many examples of high quality care within Australia delivered by ‘thousands of dedicated people providing aged care services every day’, reinforcing a message which has perhaps been absent from media reports which have tended to paint the industry and systemically ‘broken’.

Notably absent from the Terms of Reference is any inquiry into the appropriateness of funding to the sector or any examination of whether the current split between public and private funding is working.

Next steps in the process

In the coming weeks, we expect the following steps will be taken:

• the Commission’s premises will be established in Adelaide, South Australia;
• the Commission will release a website which will include papers, practices notes, public announcements and likely have functionality to receive public submissions;
• Counsel Assisting will be appointed and associated legal support will be retained;
• experts may be retained to assist with investigations, prepare research papers and prepare briefs;
• invitations for public submissions may be issued;
• the Commission may correspond directly with industry participants, potentially inviting them to disclose information in relation to certain matters of interest to the Commission;
• a practice direction will be issued setting out how hearings are to be conducted and such matters as legal representation of witnesses, appearances at hearings, directions in relation to the document management, privilege and self incrimination and how evidence will be heard; and
• notices to produce documents will be issued to industry participants.

What should you be doing?

In light of these steps, industry participants likely to be the subject of the Commission should:

• engage legal support (potentially including retaining a barrister) to advise on the Commission process, including in relation to obligations arising from the Commission’s inquiry;
• establish an internal and external email protocol;
• establish a centralised point of contact (which may be a person or team of people) with responsibility at an operational level for managing issues raised by the Commission;
• identify all document management systems that may contain relevant documents;
• consider identifying and creating briefs of key documents; and
• prepare a briefing paper for their governing bodies and consider establishing a “board sub-committee” to oversee Commission related issues.

For further details on what to expect, we have prepared Guiding you through the Royal Commission into Aged Care Quality and Safety.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.