Aged Care Essentials

Aged Care Banning Orders: How to Minimise Your Risk

Written by Mark Bryan | 31/01/2023

On 1 December 2022, the Aged Care Quality and Safety Commission (Commission) was granted power to make an order prohibiting someone from working in aged care. Before the end of the month, the Commission used its new power for the first time, banning a worker after she was allegedly caught stealing from residents.

This demonstrates that the risk of receiving a banning order is real and immediate. Staff and governing persons at your aged care facility could be banned if they do the wrong thing. Today we explain how banning orders work and how to minimise the risk of receiving one.

 

What Is a Banning Order?

According to the Commission, “A banning order is the Commission’s most serious enforcement action against an individual. The Commission may make a banning order to:

  • prohibit an individual from being involved in the provision of any type of aged care or specified types of aged care
  • restrict an individual from engaging in specified activities as an aged care worker, or as a governing person, of an approved provider.”

In this context, “individual” means any current or former:

  • aged care worker; or
  • governing person for an aged care provider (meaning anyone with authority or responsibility to make decisions about the aged care provider).

The power to make these orders comes from Division 4 of Part 8AA of the Aged Care Quality and Safety Commission Act 2018 (Cth).

 

Consequences of a Banning Order

Individual consequences: the person who receives the order will lose their job or face restrictions on what duties they can perform. They may be prevented from taking another job in the aged care sector. Note: a typical banning order will ban you from working in all parts of the aged care sector: residential, home care and the Short-Term Restorative Care, Multi-Purpose Services or Transition Care programs. It will not prevent you from working in disability care.

Loss of staff: obviously, if a staff member is banned, the provider will lose that staff member.

Reputational damage: banning orders are publicly recorded in the Register of Banning Orders. The register will record the individual’s name, place of residence (at state/territory, suburb and postcode level) and details of their banning order. More details can be recorded if the Commission wishes.

Fines: A provider can be fined if a banning order is in force and the provider fails to take reasonable steps to ensure the order is followed. For example, if one of your workers receives a banning order and you allow them to keep working, you could be fined.

 

 

How to Minimise the Risk that Your Staff Will Receive a Banning Order

The Commission can only make a banning order if one of several triggers occurs. In this table we’ve listed the triggers along with some things you can do to stop these triggers occurring.

 

The Commission can make a banning order if:
 You can prevent this situation by:
The Commission reasonably believes that the individual has failed to comply with the Aged Care Code of Conduct, or is not likely to comply.
  • Sharing the Code of Conduct with individual staff and displaying it in common areas.
  • Training staff on the Code of Conduct.
  • Providing the Code of Conduct and related training to all new and existing members of the leadership team (including the Board/Governing Body).
The Commission reasonably believes that the individual is not suitable to provide aged care.
  • Ensuring that the appropriate security and background checks (e.g., police checks) are conducted for new staff and maintained for existing staff. Ensuring the same for the leadership team (including the Board/Governing Body).
  • Establishing a clear, easy-to-use system for making and managing complaints – this can provide early warnings about staff/governing persons who need extra training.
The Commission reasonably believes that there is an immediate or severe risk to the safety, health or wellbeing of one or more care recipients if the individual is involved in aged care.
  • Regularly monitoring the safety, health and wellbeing of residents.
  • Ensuring that the appropriate security and background checks (e.g., police checks) are conducted for new staff and maintained for existing staff. Ensuring the same for the leadership team (including the Board/Governing Body).
  • Establishing a clear, easy-to-use system for making and managing complaints – this can provide early warnings about staff/governing persons who need extra training.
The individual has at any time been convicted of an indictable offence involving fraud or dishonesty.
  • Ensuring that the appropriate security and background checks (e.g., police checks) are conducted for new staff and maintained for existing staff. Ensuring the same for the leadership team (including the Board/Governing Body).
The individual is an insolvent under administration.
  • Ensuring that the appropriate security and background checks (e.g., police checks) are conducted for new staff and maintained for existing staff. Ensuring the same for the leadership team (including the Board/Governing Body).

 

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