According to The Department of Health, the new Serious Incident Response Scheme (SIRS) commenced 1 April 2021. In last week’s article we provided a summary of the SIRS for residential aged care providers. Today we dig a little deeper and answer some key questions about the SIRS.

What is the Serious Incident Response Scheme (SIRS)?

The SIRS is a national framework for incident management and reporting of serious incidents in residential aged care. It imposes obligations on aged care providers to manage and report on incidents, and expands the powers of the Aged Care Quality and Safety Commission (ACQSC).

What Does the SIRS Require?

The SIRS imposes two main requirements on residential aged care providers/services:

• Incident management system: from 1 April 2021 every residential aged care service must have in place an effective incident management system. An “effective incident management system” means “a set of protocols, processes, and standard operating procedures that staff are trained to use.”
• Compulsory reporting obligations: from 1 April 2021 every residential aged care service must report certain “Priority 1 serious incidents” to the ACQSC and sometimes to the police as well. From 1 October 2021, services must also report certain less serious “Priority 2” incidents.

When Does the SIRS Commence?

Most of the SIRS requirements commenced 1 April 2021. The requirement to report “Priority 2” incidents commences 1 October 2021.

What Sort of Incidents Do We Have to Report? (What is a “Reportable Incident”?)

• Unreasonable use of force
• Unlawful sexual contact or inappropriate sexual conduct
• Psychological or emotional abuse
• Unexpected death
• Stealing or financial coercion by a staff member
• Neglect
• Inappropriate physical or chemical restraint
• Unexplained absence from care

Who Must Report?

The obligation to report applies to all “approved providers”. That term is not clearly defined. At this stage you should take a broad view and assume that reporting responsibility applies to your governing body/board and leadership and management team.

All “approved providers” also have a responsibility to ensure that any staff member who becomes aware of a reportable incident notifies senior staff “as soon as possible.”

When Must We Report to the ACQSC?

Priority 1 incidents must be reported to the ACQSC within 24 hours of becoming aware of the incident. A “Priority 1 incident” occurs where the incident has caused, or could reasonably have caused, a care recipient physical or psychological injury or discomfort that requires medical or psychological treatment to resolve. Unexplained absence from care and unexpected death are always to be regarded as Priority 1 incidents.

Priority 2 incidents must be reported to the ACQSC within 30 days of becoming aware of the incident. This includes all other reportable incidents that do not meet the criteria for a Priority 1 incident. This obligation applies from 1 October 2021.

When Must We Report to Police?

If there are “reasonable grounds” to believe that the incident should be reported to the police, it must be reported within 24 hours of becoming aware of the incident. Note: reporting to the police is an additional obligation. You still have to report to the ACQSC even if you report to police.

How Do We Report?

Reports to the ACQSC are made via the My Aged Care Provider Portal.

Reports to police are made by calling triple-zero (000) in an emergency or otherwise by phoning your local police station.

Do We Have to Report Incidents Involving Residents with Cognitive Impairment (e.g. Dementia)?

Yes.

However, you can apply for an exemption. According to page 46 of the SIRS Guidelines for Residential Aged Care Providers:

“If the reportable incident relates to a particular consumer who has been diagnosed with dementia and experiences delusions, and continues to report a particular event which has been investigated and is based on delusions, you may apply to the Commission for a determination that further repeat allegations of the same reportable incident do not need to be notified.”

But note, you must report the first incident, and if the same person is involved in a new incident the exemption does not apply and you must report the new incident.

Do We Have to Report Incidents that Occur Off Site?

Yes. The SIRS require you to report all reportable incidents that occur “in connection with” the provision of care. For example, if the incident occurs while staff are taking residents off site for an appointment it must be reported.

When Does a Person “Become Aware” of an Incident?

Aged care providers must report a Priority 1 incident within 24 hours of “becoming aware” of the incident. At exactly what point does someone “become aware” of an incident?

As noted above, the reporting obligations apply to “aged care providers” not to general staff, so our best guess is that the clock starts ticking as soon as an “aged care provider” (i.e. a member of the management or leadership team) becomes aware of the incident. For example, if a staff member witnesses a resident being bullied at 1.45pm and reports this to their manager at 2.15pm, then the clock starts at 2.15pm and the incident must be reported by 2.15pm the following day.

What Will the ACQSC Do in Response to an Incident Report?

The ACQSC has some specific powers it can use in response to a particular report and some general powers to gather and use data from a collection of reports.

Specific powers

When the ACQSC receives a notification of a reportable incident, it can:

• require the provider to give it information, further reports or documents
• request the provider to complete remedial actions in relation to the incident
• request the provider or an independent expert to undertake an internal investigation into the incident and report to the ACQSC
• conduct an inquiry in relation to a particular reportable incident or series of reportable incidents (whether or not a notification was made)
• refer the reportable incident to another responsible body, including the police or the Coroner.

The ACQSC also has the following powers of enforcement:

• issue a compliance notice where a provider is not, or may not be, complying with its incident management responsibilities
• ask a court to impose a civil penalty for a breach of the Commission Act or Aged Care Act (under the SIRS a civil penalty applies if the provider fails to comply with a compliance notice)
• seek an injunction from a court
• issue an infringement notice in certain circumstances (for example, causing detriment to a person who has made a disclosure regarding a reportable incident)
• impose sanctions under Part 7B of the Aged Care Quality and Safety Commission Act 2018 (Cth)
• accept a written undertaking (enforceable by court order) given by a provider that it will take specified actions to comply with its responsibilities and/or will take specified actions to ensure that these responsibilities are not contravened in the future.

General powers and responsibilities

The ACQSC will use the incident reports it receives to:

• assess and respond to a provider’s compliance with incident management obligations
• apply risk-based monitoring of how providers investigate and respond to reportable incidents
• make use of the high volume of intelligence to support risk profiling and identification of emerging trends in the sector
• provide feedback to the sector to support understanding of adverse events and support continuous improvement by providers in the quality and safety of care
• enhance transparency of quality and safety performance through sector performance reporting.

How Does the Royal Commission’s Final Report Affect the SIRS?

The Royal Commission into Aged Care Quality and Safety made several recommendations about the SIRS. Some of these have been partially implemented already, the remainder will have no effect on the SIRS until the government makes laws in response to the Royal Commission’s report. However, it’s good to be aware of what the Royal Commission recommended, as this is likely to affect the SIRS in the future.

Key Royal Commission recommendations include:

• The SIRS must be extended to cover allegations of certain serious incidents in home settings also.
• The SIRS needs risk detection to identify immediately whether an aged care worker named in a new report has been the subject of an earlier report.
• A provider should be required to provide the regulator with a plan detailing the action it intends to take in response to a reported incident, and be subject its scrutiny.
• The regulator should be able to require a provider to take specified remedial action within a specified period.

What is the First Thing We Should Do in Response to the SIRS?

Nominate a specific person as being chiefly responsible for reporting. This person should work with a team of responsible reporters so that for all seven days of the week someone is available and qualified to make a report. You should ensure that all these people have access to the My Aged Care Portal.

Further Resources

• Department of Health: Serious Incident Response Scheme
• Serious Incident Response Scheme – Guidelines for residential aged care providers
• Effective incident management systems: Best practice guidance
• Quick Reference Guide: How to access and use the Serious Incident Response Scheme (SIRS) portal
• Aged Care Quality and Safety Commission: Frequently Asked Questions
• SIRS Learning Module on ALIS

ABOUT THE AUTHORS

Mark Bryan

Mark is a Legal Research 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.

Jenny Wang

Jenny is the Content Integration Team Leader at CompliSpace and a legal research assistant for the aged care team. She has a Bachelor of Science (Financial Mathematics and Statistics) and is currently completing her Bachelor of Laws at the University of Sydney.