Aged care providers are struggling through a period of radical change. With so much to keep track of, there is a high risk of overlooking key legal obligations.

In today’s article we recap one of the key issues you may have missed: whistleblowing. You may not be aware that aged care providers have legal obligations with regard to whistleblowers and can face penalties if these obligations are breached. There are also best-practice principles that providers should follow when dealing with whistleblowers and their disclosures. Here’s what you need to know.

What is Whistleblowing?

Whistleblowing is a way of making a report (also called a “disclosure”) that is recognised by the law and entitled to legal protections. Whistleblower disclosures are used to report actual or reasonably suspected wrongdoing in relation to an organisation.

In the context of aged care, “wrongdoing” means:

• a reportable incident (as defined under the Serious Incident Response Scheme (SIRS))
• misconduct or an improper state of affairs with respect to the organisation (this is a broad term that includes just about any kind of “bad deed”, from theft and embezzlement to assault and bullying).

Anyone can report an incident of wrongdoing but not every disclosure will qualify as a “whistleblower disclosure” and receive the associated legal protections (see “Obligation to Identify” below). Also, even if the disclosure does qualify, the discloser may prefer to report via some other channel such as an internal complaints procedure.

Why Does Whistleblowing Matter?

From the purely legal standpoint, whistleblowing matters to you because you have legal obligations to protect whistleblowers, and there are penalties for breaching these obligations. If you fail to meet your obligations here are some of the things that could happen:

• a court could order you to pay compensation
• a court could order that you apologise to a whistleblower or reinstate them if they are an employee who has been fired
• the Aged Care Quality and Safety Commission could find that you are not up to standard.

In addition to these legal issues, whistleblowing is important because it deters wrongdoing, identifies problems and encourages improvement.

Your Obligations With Regard to Whistleblowing

Which Laws?

All aged care homes must follow the “protected disclosure” obligations in the Aged Care Act 1997 (Cth) (Aged Care Act). “Protected disclosure” means effectively the same thing as “whistleblower disclosure”. Some aged care homes must also follow some or all of the whistleblower obligations in the Corporations Act 2001 (Cth) (Corporations Act).

It’s not always easy to determine if the Corporations Act applies to a particular aged care home, and the Act can apply even to charities and other not-for-profit organisations. Seek legal advice if you are unsure.

In any event, the whistleblower obligations in the Corporations Act are substantially similar to the obligations in the Aged Care Act, which all aged care homes must follow.

Overview

Although these are not legal terms, it’s useful to think of your whistleblower obligations in four areas:

• obligation to empower
• obligation to identify
• obligation to protect
• obligation to respond

Obligation to Empower

You must make it easy for people to blow the whistle. This means telling them clearly about whistleblowing and how to do it. In practice, this could mean:

• publishing a public-facing whistleblower policy – ideally on your website, but you could also provide hard copies in common areas or directly to staff, consumers and their families
• training all staff about the importance of speaking up about wrongdoing and how to make a disclosure
• appointing and training specialised staff to respond to whistleblower disclosures.

Obligation to Identify

You can only fulfil your obligations to a whistleblower if you first identify which disclosures qualify as whistleblower disclosures. As mentioned above, not every report or complaint is a whistleblower disclosure. To qualify as a whistleblower disclosure, these criteria must be met:

• the disclosure must be made by an eligible person
• the disclosure must be made to an eligible recipient
• the disclosure must be about wrongdoing with respect to your organisation and must meet a few additional criteria (i.e., it must have eligible content).

The Aged Care Act and Corporations Act elaborate on these criteria in more detail than we can capture in this article, but generally:

• an eligible person is a person who has some connection to the aged care home, such as current and former staff, contractors, volunteers, consumers and their families
• an eligible recipient includes any member of staff at the aged care home and some external agencies such as the Aged Care Quality and Safety Commission
• to qualify as eligible content, a disclosure must be about wrongdoing with respect to the aged care home.

For example: if a nurse at your aged care home makes a report to their manager about an incident of neglect at the home, this will qualify as a whistleblower disclosure. However, if the nurse is content to report via regular internal channels and forego any whistleblower protections, then you may not need to identify the disclosure as a whistleblower disclosure.

Obligation to Protect

Generally, this obligation means you must take steps to:

• maintain confidentiality and, in some circumstances, the whistleblower’s anonymity. To achieve this you can do things such as securing records and conducting meetings in private
• protect the whistleblower from any victimisation. You might achieve this by maintaining confidentiality and anonymity, training staff and disciplining anyone who victimises a whistleblower
• protect the whistleblower from disciplinary action and liability. This means you must not punish someone for blowing the whistle and you must not sue them for it.

Obligation to Respond

The whistleblower laws in the Aged Care Act and Corporations Act focus on your obligation to protect whistleblowers rather than any obligation to investigate the whistleblower’s disclosure. However, you may have other legal obligations to conduct such investigations, and this may represent best practice.

So, once you’ve empowered your whistleblower, identified their disclosure as a whistleblower disclosure and protected the whistleblower, you should respond to their complaint. This means conducting a fair investigation and maintaining confidentiality while you do it.

You also have an obligation to treat any accused people fairly, usually by putting the accusations to them clearly and confidentially and giving them a chance to respond.

What Now?

Now is the time to:

• review your policies to ensure that they are up to date and that they cover your legal obligations
• establish a clear procedure for blowing the whistle and nominate appropriate staff as “whistleblower officers” with responsibility for managing whistleblowing issues
• communicate your procedures to staff, consumers and the wider community (e.g., by publishing a Whistleblower Policy on your website)
• train staff on their legal obligations and your whistleblower policies and procedures.

Authors 

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.

Alyssa Kritikos

Alyssa is a Senior Legal Content Associate at CompliSpace. Having graduated from Macquarie University in Sydney, she holds a double bachelor’s degree in Commerce and Law. She has experience working as a lawyer in both private practice and in-house roles with a focus on employment and privacy laws.