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Investigation Principles 2007

Authoritative Version
Principles as made
These Principles outline the process that the Secretary to the Department of Health and Ageing will undertake in investigating complaints or information brought to his or her attention regarding the responsibilities of a residential or community aged care provider under the Aged Care Act 1997. These Principles repeal the Committee Principles 1997.
Administered by: Health
Registered 01 May 2007
Tabling HistoryDate
Tabled HR08-May-2007
Tabled Senate09-May-2007
Date of repeal 01 Sep 2011
Repealed by Complaints Principles 2011
This Legislative Instrument has been subject to a Motion to Disallow:
Motion Date:
15-Aug-2007
Expiry Date:
12-Mar-2008
House:
Senate
Details:
Full
Resolution:
Withdrawn
Resolution Date:
17-Sep-2007
Resolution Time:
Provisions:

Investigation Principles 2007

Aged Care Act 1997

I, CHRISTOPHER PYNE, Minister for Ageing, make these Principles under subsection 96‑1 (1) of the Aged Care Act 1997.

Dated 1 May 2007

CHRISTOPHER PYNE


Contents

Part 1                    Preliminary

                  16A.1     Name of Principles                                                                              4

                  16A.2     Commencement                                                                                  4

                  16A.3     Revocation                                                                                          4

                  16A.4     Definitions                                                                                           4

Part 2                    Sources of information

                  16A.5     Giving information to Secretary                                                             5

Part 3                    Investigations by Secretary

Division 3.1             Investigation of information given to Secretary

                  16A.6     Threshold test — what matters are to be investigated                             5

                  16A.7     Circumstances in which Secretary may decide not to investigate             6

                  16A.8     How investigations are to be conducted                                                 6

                  16A.9     Confidentiality                                                                                     7

                16A.10     Referral to other organisations                                                              7

                16A.11     Use of information obtained during investigation                                      7

                16A.12     Continuation of investigation                                                                 7

Division 3.2             Investigation on Secretary’s own motion

                16A.13     Own motion investigation                                                                      7

Part 4                    Outcomes of investigation by Secretary

                16A.14     Ending an investigation                                                                        7

                16A.15     Determining whether there has been a breach                                        8

                16A.16     Action following determination of breach                                                8

                16A.17     Form and conditions of notice of required action                                     8

Part 5                    Feedback

                16A.18     Feedback if no further proposed action                                                  9

                16A.19     Feedback if breach of relevant provider responsibilities                            9

                16A.20     Feedback to other persons                                                                 10

Part 6                    Aged Care Commissioner

Division 6.1             Examination of Secretary’s decisions by Aged Care Commissioner

                16A.21     Application for examination by care recipient or representative               11

                16A.22     Application for examination by relevant provider                                    11

                16A.23     Form of application for examination                                                     12

                16A.24     Decisions examinable by Aged Care Commissioner                              12

                16A.25     Secretary to consider Aged Care Commissioner’s recommendation       12

Division 6.2             Examination by Aged Care Commissioner of certain complaints

                16A.26     Complaints to Aged Care Commissioner                                              13

                16A.27     Aged Care Commissioner’s discretion to examine complaints                13

                16A.28     Notice of examination                                                                         14

Part 7                    Transitional

                16A.29     Transitional                                                                                       15

 

 


Note:  Part 6.4A of the Aged Care Act 1997

Part 6.4A of the Aged Care Act 1997 is about the investigation of matters relating to the Act or the Principles made under section 96‑1 of the Act.

These Principles deal with:

(a)  which matters are to be investigated;

(b)  how investigations are to be conducted;

(c)  considerations in making decisions relating to investigations;

(d)  procedures for the Aged Care Commissioner to examine certain decisions made in relation to investigations and also to examine certain complaints.

Part 1                 Preliminary

16A.1      Name of Principles

                These Principles are the Investigation Principles 2007.

16A.2      Commencement

                These Principles commence on 1 May 2007.

16A.3      Revocation

                The Committee Principles 1997 are revoked.

16A.4      Definitions

                In these Principles:

Act means the Aged Care Act 1997.

aggrieved person means a care recipient of the relevant provider, or his or her representative, to whom a matter under investigation relates.

examinable decision means a decision examinable by the Aged Care Commissioner under section 16A.24.

informant, for the investigation process, means the person who gave the information to which the investigation relates.

investigation process means the process under Part 3.

notice of required action has the meaning given by section 16A.16.

own motion investigation has the meaning given by section 16A.13.

Principles means the Principles made under section 96‑1 of the Act.

relevant provider, for the investigation process, means the approved provider to which the investigation relates.

representative, of a care recipient, includes:

                (a)    an advocate for the care recipient; and

               (b)    a legal guardian of the care recipient; and

                (c)    a carer or relative of the care recipient.

Part 2                 Sources of information

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16A.5      Giving information to Secretary

         (1)   A person may give to the Secretary (by way of complaint or otherwise) information about a matter involving an approved provider’s responsibilities under the Act or Principles.

         (2)   Information may be given orally or in writing, and may be given anonymously.

         (3)   An informant may ask the Secretary to keep the following confidential:

                (a)    the identity of the informant;

               (b)    the identity of a person included in the information;

                (c)    any other details included in the information.

         (4)   An informant may withdraw from the investigation process at any time.

Note   An informant who withdraws from the investigation process ceases to have a right to be given feedback about the outcome of the investigation. However, the Secretary may decide to give feedback to an informant who has withdrawn from the process (see section 16A.20).

Part 3                 Investigations by Secretary

Division 3.1           Investigation of information given to Secretary

16A.6      Threshold test — what matters are to be investigated

         (1)   If the Secretary receives information mentioned in section 16A.5, the Secretary must assess the information to determine whether it relates to an approved provider’s responsibilities under the Act or Principles.

         (2)   Subject to section 16A.7, if the information relates to an approved provider’s responsibilities under the Act or Principles, the Secretary must investigate the matter.

16A.7      Circumstances in which Secretary may decide not to investigate

                The Secretary may decide not to investigate a matter relating to an approved provider’s responsibilities if the Secretary is satisfied that:

                (a)    the provision of the information under section 16A.5 is frivolous or vexatious; or

               (b)    the information was not given in good faith; or

                (c)    the matter relates to an issue that has been, or is, the subject of a legal proceeding; or

               (d)    the matter relates to an issue that has been dealt with under these Principles or the Committee Principles 1997 as they then existed; or

                (e)    the matter relates to an event:

                          (i)    that occurred more than 1 year before the information was given to the Secretary; and

                         (ii)    that is not ongoing; or

                (f)    having regard to all the circumstances, investigation of the matter is not warranted.

16A.8      How investigations are to be conducted

         (1)   If the Secretary is satisfied that a matter requires investigation, the Secretary may conduct the investigation in the manner that the Secretary considers appropriate for the purpose of determining whether the relevant provider has, or has not, breached its responsibilities under the Act or Principles.

         (2)   As soon as possible after the commencement of the investigation, the Secretary must notify the relevant provider about the investigation, unless the Secretary considers that the notification will, or is likely to:

                (a)    harm the investigation; or

               (b)    place the safety, health or well-being of the informant or a care recipient at risk; or

                (c)    place the informant or a care recipient at risk of intimidation or harassment.

         (3)   In conducting the investigation, the Secretary may, but is not required to, do any of the following:

                (a)    analyse and review documents;

               (b)    visit the aged care service;

                (c)    meet with the informant (if known), the relevant provider or any other person;

               (d)    arrange for the informant (if known and if the informant’s identity is not required to be kept confidential), the relevant provider or any other person to meet with one another to try to resolve any issues in dispute;

                (e)    request information from persons.

16A.9      Confidentiality

                The Secretary must ensure that any request for confidentiality under subsection 16A.5 (3) is complied with unless the Secretary considers that doing so will, or is likely to:

                (a)    harm the investigation; or

               (b)    place the safety, health or well-being of the informant or a care recipient at risk; or

                (c)    place the informant or a care recipient at risk of intimidation or harassment.

16A.10   Referral to other organisations

                If the Secretary considers that a matter requires, or may require, investigation or other action by another organisation, the Secretary may refer the matter to the organisation.

16A.11   Use of information obtained during investigation

                Nothing in this Part prevents the use of information that was obtained, or that became known, during the investigation process for other purposes related to the administration of the Act or Principles.

16A.12   Continuation of investigation

                The investigation process may continue even if:

                (a)    the matter has been referred to another organisation; or

               (b)    the informant has withdrawn from the process.

Division 3.2           Investigation on Secretary’s own motion

16A.13   Own motion investigation

                Nothing in this Part prevents the Secretary from conducting an investigation on the Secretary’s own motion, based on information known to the Secretary or the Department (own motion investigation).

Part 4                 Outcomes of investigation by Secretary

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16A.14   Ending an investigation

                The Secretary may end an investigation at any time, with or without determining whether the relevant provider has, or has not, breached its responsibilities under the Act or Principles.

16A.15   Determining whether there has been a breach

                After investigation, the Secretary may determine whether the relevant provider has, or has not, breached its responsibilities under the Act or Principles.

16A.16   Action following determination of breach

         (1)   This section applies if the Secretary determines that the relevant provider has breached its responsibilities under the Act or Principles.

         (2)   The Secretary must give to the relevant provider:

                (a)    written notification that it has breached its responsibilities under the Act or Principles; and

               (b)    a statement that it may apply to the Aged Care Commissioner for examination of this decision under Part 6.

         (3)   The Secretary may give to the relevant provider a notice specifying the action that the relevant provider must take to comply with its responsibilities under the Act or Principles (notice of required action).

         (4)   If, before a notice of required action is given, the relevant provider complies, or takes appropriate action to comply, with its responsibilities in a way that is satisfactory to the Secretary, the Secretary may (instead of giving the notice of required action) give a written acknowledgment of the action taken by the relevant provider.

         (5)   Nothing in this section prevents the Secretary from taking action under Part 4.4 of the Act instead of action under these Principles.

16A.17   Form and conditions of notice of required action

         (1)   A notice of required action must be in writing and may be subject to any conditions that the Secretary may specify in the notice.

         (2)   The Secretary may add a condition to, or vary or revoke a condition of, a notice of required action.

         (3)   The relevant provider must comply with the notice of required action and any conditions to which the notice is subject, including a condition that has been added or varied.

         (4)   The notice of required action must include a statement that the relevant provider may apply to the Aged Care Commissioner under Part 6 for examination of the decision to give the notice or a decision setting, adding or varying the conditions of the notice.

Note   If a relevant provider fails to comply with a notice of required action, sanctions may be imposed under Part 4.4 of the Act. Additional notice and information are required before sanctions can be imposed (see Division 67 of the Act).

Part 5                 Feedback

16A.18   Feedback if no further proposed action

         (1)   This section applies if the Secretary makes a decision:

                (a)    that information given under section 16A.5 is not to be investigated because the Secretary has decided not to investigate the matter, in accordance with section 16A.7; or

               (b)    to end an investigation; or

                (c)    that the relevant provider has not breached its responsibilities.

         (2)   This section does not apply to a person who gives information anonymously.

         (3)   The Secretary must give the following written feedback:

                (a)    if the information was given under section 16A.5 by a care recipient or his or her representative and the information related to the care recipient’s care, to the care recipient (or his or her representative):

                          (i)    a statement of reasons for the decision; and

                         (ii)    if the decision is of a kind mentioned in paragraph (1) (b) or (c) — a statement that the care recipient (or his or her representative) may apply to the Aged Care Commissioner under Part 6 for examination of the decision; and

               (b)    if the information was given by another person for whom the Secretary has contact details, unless that person asked not to be given feedback on the matter, to the person — a statement of reasons for the decision; and

            (c)        to the relevant provider — a statement of reasons for the decision.

16A.19   Feedback if breach of relevant provider responsibilities

         (1)   This section applies if the Secretary makes a decision that the relevant provider has breached its responsibilities.

         (2)   The Secretary must give the following written feedback:

                (a)    if the information was given under section 16A.5 by a care recipient or his or her representative and the information related to the care recipient’s care, to the care recipient (or his or her representative):

                          (i)    a statement of reasons for the decision; and

                         (ii)    if a notice of required action has not been given to the relevant provider — a statement that the care recipient (or his or her representative) may apply to the Aged Care Commissioner under Part 6 for examination of the decision not to give a notice of required action; and

                         (iii)    if a notice of required action has been given to the relevant provider:

                                   (A)     a statement of any conditions of the notice of required action that relate to the matter raised by the care recipient (or his or her representative); and

                                   (B)     a statement that the care recipient (or his or her representative) may apply to the Aged Care Commissioner under Part 6 for examination of the decision of the Secretary to set, or not to set, a condition that relates to the matter raised by the care recipient (or his or her representative);

               (b)    if the information was given by another person for whom the Secretary has contact details, unless that person asked not to be given feedback on the matter, to the person — a statement of reasons for the decision.

16A.20   Feedback to other persons

                The Secretary may give feedback relating to an investigation to any other person or organisation that the Secretary considers has sufficient relevant interest in the matter.

Part 6                 Aged Care Commissioner

Note

The Aged Care Commissioner’s 3 main areas of responsibility are:

(a)   dealing with complaints about the Secretary’s processes for handling matters under the Investigation Principles 2007 and the conduct of accreditation bodies relating to their responsibilities under the Accreditation Grant Principles or the conduct of persons carrying out audits, or making support contacts, under those Principles;

(b)   examining decisions mentioned in section 16A.21 or 16A.22;

(c)   undertaking its own investigations in relation to the matters mentioned in paragraph (a) (see Act, s 95A‑1).

Division 6.1           Examination of Secretary’s decisions by Aged Care Commissioner

16A.21   Application by care recipient or representative for examination

                An aggrieved person who is dissatisfied about any of the following decisions may, within 14 days after being told by the Secretary about the decision, apply to the Aged Care Commissioner for examination of the decision:

                (a)    a decision by the Secretary under section 16A.14 to end an investigation;

               (b)    a determination by the Secretary under section 16A.15 that the relevant provider has not breached its responsibilities under the Act or Principles;

                (c)    a decision by the Secretary not to issue a notice of required action;

               (d)    a decision by the Secretary setting, adding or varying conditions of a notice of required action that directly relates to the aggrieved person.

16A.22   Application by relevant provider for examination

                A relevant provider who is dissatisfied about any of the following decisions may, within 14 days after being told by the Secretary about the decision, apply to the Aged Care Commissioner for examination of the decision:

                (a)    a determination by the Secretary under section 16A.15 that the relevant provider has breached its responsibilities under the Act or Principles;

               (b)    a decision by the Secretary to issue a notice of required action;

                (c)    a decision by the Secretary setting, adding or varying conditions of a notice of required action.

16A.23   Form of application for examination

         (1)   An application for examination must:

                (a)    be in writing; and

               (b)    state the reasons (other than mere dissatisfaction with the decision) why examination is sought; and

                (c)    be received by the Aged Care Commissioner within 14 days after the day when the applicant was told about, or given feedback on, the decision.

         (2)   The application may be supported by additional information.

16A.24   Decisions examinable by Aged Care Commissioner

         (1)   A decision is examinable by the Aged Care Commissioner if:

                (a)    the decision is a decision mentioned in section 16A.21 or 16A.22; and

               (b)    the aggrieved person or relevant provider filed an application for examination of the decision.

         (2)   The Aged Care Commissioner may examine an examinable decision in the manner that the Commissioner considers appropriate.

         (3)   The Aged Care Commissioner may refuse to examine an examinable decision if the Commissioner is satisfied that:

                (a)    the application for examination is frivolous or vexatious; or

               (b)    the application was not made in good faith; or

                (c)    the application for examination relates to a matter that is, or has been, the subject of a legal proceeding.

         (4)   Within 60 days after the day when the Aged Care Commissioner receives an application for examination, the Aged Care Commissioner must give to the Secretary:

                (a)    a recommendation about the examinable decision; or

               (b)    a report about a refusal, under subsection (3), to examine the examinable decision.

16A.25   Secretary to consider Aged Care Commissioner’s recommendation

         (1)   After the Secretary receives a recommendation from the Aged Care Commissioner about an examinable decision, the Secretary must, taking into consideration the recommendation, reconsider the decision.

         (2)   The Secretary must, within 14 days after receiving the recommendation:

                (a)    confirm the examinable decision; or

               (b)    vary the examinable decision; or

                (c)    set aside the examinable decision and substitute a new decision.

         (3)   The Secretary must tell the aggrieved person, the relevant provider and the Aged Care Commissioner in writing about the Secretary’s decision on reconsideration.

Division 6.2           Examination by Aged Care Commissioner of certain complaints

16A.26   Complaints to Aged Care Commissioner

         (1)   A person may make a written complaint to the Aged Care Commissioner about:

                (a)    the Secretary’s processes for handling matters under the Investigation Principles 2007; or

               (b)    the conduct of accreditation bodies relating to their responsibilities under the Accreditation Grant Principles 1999; or

                (c)    the conduct of persons carrying out audits, or making support contacts, under those Principles.

         (2)   For subsection (1), a complaint may be made only about a matter that occurred on or after 1 May 2007.

16A.27   Aged Care Commissioner’s discretion to examine complaints

         (1)   The Aged Care Commissioner may examine, or refuse to examine, a complaint mentioned in section 16A.26.

         (2)   The Aged Care Commissioner must refuse to examine a complaint if the Commissioner is satisfied that:

                (a)    the complaint does not relate to a function of the Commissioner; or

               (b)    the complaint is about the conduct of an accreditation body relating to its responsibilities under the Accreditation Grant Principles 1999, or the conduct of a person carrying out an audit, or making a support contact, under those Principles, and the complainant has not:

                          (i)    made a complaint about the matter to the accreditation body; or

                         (ii)    brought the matter to the attention of the accreditation body; or

                (c)    the complaint is about the Secretary’s processes for handling matters under the Investigation Principles 2007 and the complainant has not:

                          (i)    made a complaint about the matter to the Secretary; or

                         (ii)    brought the matter to the attention of the Secretary.

         (3)   The Aged Care Commissioner may refuse to examine a complaint if the Commissioner is satisfied that:

                (a)    the complaint is frivolous or vexatious; or

               (b)    the complaint was not made in good faith; or

                (c)    the complaint relates to a matter that is, or has been, the subject of a legal proceeding; or

               (d)    having regard to all the circumstances, examination of the complaint is not warranted.

         (4)   The Aged Care Commissioner may examine a complaint in the manner that the Commissioner considers appropriate.

16A.28   Notice of examination

                As soon as possible after the Aged Care Commissioner decides to examine a complaint mentioned in section 16A.26, he or she must tell the person or body, against whom the complaint is made, about the complaint.

Part 7                 Transitional

Do not delete : Division Placeholder

16A.29   Transitional

         (1)   This section applies to each person who has made a complaint under the Committee Principles 1997 in which:

                (a)    the complaint has not been determined or discontinued; or

               (b)    if the person has applied for a review of the determination resolving the complaint — the review has not been finalised.

         (2)   As soon as possible after the Investigation Principles 2007 commence, the Secretary must tell the person in writing that if the person does not elect within 30 days to have the complaint or review dealt with under the Committee Principles 1997 as in force immediately before the Investigation Principles 2007 commenced, the complaint or review will be taken to be a complaint or examination under the Investigation Principles 2007.

         (3)   The complaint or review of a person who makes an election under subsection (2) is to be dealt with under the Committee Principles 1997 as in force immediately before the Investigation Principles 2007 commenced until the earlier of:

                (a)    the resolution of the complaint or review; or

               (b)    1 September 2007.

         (4)   A complaint or review that has not been resolved before 1 September 2007 is to be dealt with under the Investigation Principles 2007.