The Aged Care Royal Commission last week issued a letter to the 100 largest aged care providers in Australia, inviting them to provide comprehensive written submissions addressing the Commissioners’ preliminary questions by 7 January 2019. A preliminary hearing will be heard in advance of those submissions in December 2018. Other providers can expect to receive similar letters soon inviting a response by February 2019.
Much like the equivalent letter that was sent at the commencement of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, the letter provides valuable insight into the Commission’s intended approach. In particular, the Commission’s focus is on identifying incidents that amount to “substandard care”, including mistreatment and all forms of abuse, since 1 July 2013. The letter seeks specific details of all such incidents, including whether the provision of substandard care was a result of a “systemic failure”.
It is not yet clear what the Commission means by “substandard care”, though this may be clarified in next month’s preliminary hearing. The Banking Royal Commission was asked to consider banking conduct through the lens of “conduct falling below community standards and expectations” which the Commission explained as being connected to notions of fairness. We anticipate that “substandard care” may also take on a broad scope going beyond what the law might regard as negligence alone.
By sending the letter, the Commissioners are inviting aged care providers to place themselves in the Commission’s cross hairs. While the Commissioner does have the power to compel parties to provide documents and information, they have not yet exercised these powers. The Commissioners’ request is not mandatory, so providers may choose not to provide a response. Based on our experience with the Banking Royal Commission, however, we anticipate that anyone who does not accept the Commissioners’ invitation or who provides a late or incomplete response may find themselves receiving public criticism and additional scrutiny from the Commission.
Being prepared for the commencement of the Commission is vital. We recommend that all industry participants, even those not yet in contact with the Commission, start preparing themselves now. Depending on your circumstances, you may wish to consider:
- assembling a team of internal staff to deal with issues and requests from the Commission as and when they arise;
- ensuring your relevant documents are well organised and stored on an easily accessible cloud based document management system;
- retaining PR consultants to assist you with putting your best foot forward in public; and
- making sure you have legal representation ready to assist you in responding to or appearing before the Commission.
Mark Farquhar and Peter Clay from our litigation team are currently acting for clients in responding to the Banking Royal Commission and also have experience with previous Royal Commissions. We would be happy to have a conversation with you about how Clarendon Lawyers could assist you with the Aged Care Royal Commission.