From 1 December 2022, aged care providers must comply with a new Code of Conduct for Aged Care (Code), and can face penalties if they fail to comply. Here’s what you need to know.

Background

The Royal Commission into Aged Care Quality and Safety’s Final Report in March 2021 recommended that the Australian Government should establish a Code of Conduct for the aged care industry (Recommendation 77 (1)(e)). After a period of public consultation, it was agreed that the NDIS Code of Conduct would provide a basis for the Code. The Code was made law via the Aged Care Quality and Safety Commission Amendment (Code of Conduct and Banning Orders) Rules 2022 (Cth). A comprehensive summary of the feedback from the public consultation can be found in the Consultation Summary Report.

Who Must Follow the Code?

The Code applies to:

• approved providers of aged care (including providers of residential, home care and flexible care services)
• aged care workers who are:

• employed or otherwise engaged by the provider
• volunteers engaged by the provider
• employed or otherwise engaged (including on a voluntary basis) by a contractor or subcontractor of the provider to provide care or other services to consumers

• governing persons of aged care providers e.g. board members and Chief Executive Officers.

Who Doesn’t the Code apply to?

The Code does not apply to:

• the Commonwealth Home Support Programme (CHSP)
• the National Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP).

However, CHSP and NATSIFACP providers will be required to provide care that is safe and respectful and to behave in a way that aligns with the Code.

The Code

The Legislation surrounding the Code can be found in the Federal Register of Legislation. The finalised Code consists of eight (8) elements and states:

“When providing care, supports and services to people, I must:

• act with respect for people’s rights to freedom of expression, self-determination and decision-making in accordance with applicable laws and conventions
• act in a way that treats people with dignity and respect, and values their diversity
• act with respect for the privacy of people
• provide care, supports and services in a safe and competent manner, with care and skill
• act with integrity, honesty and transparency
• promptly take steps to raise and act on concerns about matters that may impact the quality and safety of care, supports and services
• provide care, supports and services free from:
  • all forms of violence, discrimination, exploitation, neglect and abuse
  • sexual misconduct
• take all reasonable steps to prevent and respond to:
  • all forms of violence, discrimination, exploitation, neglect and abuse
  • sexual misconduct.”

What Happens if the Code is Breached?

The Aged Care Quality and Safety Commissioner has very broad powers to take action in relation to breaches of the Code. They may discuss the breach with the person, request documents and conduct investigations, and even ban the person from working in aged care. The Commissioner will also maintain a publicly available register of individuals who have had banning orders made against them so that they can be identified and prevented from working for other aged care providers.

Providers also have a responsibility when one of their workers or a member of their governing body breaches the Code. This may include a responsibility to take appropriate performance management and disciplinary actions, depending on the severity of the breach. In the case of serious breaches, termination of employment, contract or engagement may need to occur.

Provider Responsibilities

Aged care providers’ core responsibility is to abide by the Code. The Aged Care Quality and Safety Commission’s draft Guidance* on the Code expands on this core responsibility and explains some of the things that providers must do in practice to ensure compliance. In particular, providers must take reasonable steps to ensure that workers, including volunteers and governing persons:

• read and understand the Code and the Guidance
• do regular training to help understand, apply and uphold the behaviours expected. This includes as part of orientation and ongoing education program
  
  
• understand the consequences of failing to comply with the Code
• are supported to resolve issues where concerns are identified about their compliance.

Additionally, providers should provide information about the Code on the commencement of the delivery of care and services to all consumers and/or their representatives. This is to ensure that they understand what is expected of the provider and their workforce.

*At the time of writing this article, the latest version of the Guidance was dated 31 October 2022. The Commission is expected to issue an updated version soon.

More Information

• Aged Care Quality and Safety Commission: Code of Conduct for Aged Care – information for providers
• Aged Care Quality and Safety Commission: Code of Conduct for Aged Care: Guidance for aged care workers and governing persons

Authors

Annalise Wright

Annalise is a Senior Onboarding Coordinator at CompliSpace. She has completed a Bachelor of Arts majoring in Political Science and International Relations and History from the University of Western Australia and is currently studying a Master of Public Policy at Monash University.

Mark Bryan

Mark is a Legal Content Consultant at CompliSpace and the editor for ACE. Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.