As providers are aware, the new Code of Conduct which applies to approved providers, their governing persons and aged care workers (including subcontracted workers), commences on 1 December this year.
While elements of the Code reflect the Aged Care Quality Standards, in Russell Kennedy’s opinion, providers should not underestimate the impact of the Code. The Code gives the Commission new powers, including to take action against individual aged care workers, managers and board members. We also, anticipate it will be used by unhappy consumers and their families as an additional tool in their complaints, whether about the provider or a particular staff member.
Some of the main challenges we think the Code creates are as follows:
- To what extent will a provider be held responsible for breaches of the Code by their staff? As set our below, Providers have a responsibility to take “reasonable steps” to ensure that aged care workers, and the governing persons, comply with the provisions of the Code of Conduct
- On the other hand, what if a staff member is found to have breached the Code in circumstances where they have acted in accordance with policy, could that create rights against the provider?
- Could the Code be used by the workers’ unions in negotiations? We have seen some unions previously argue that allowing PCAs to administer medication places nurses in breach of their professional obligations. Could the Code be used in a similar way?
- The provisions of the Code themselves are potentially deceptively simple. To take (a) as an example, all providers would agree that consumers have this right. However the way this applies in practice could present issues. The Aged Care Quality Safety Commission has said in their Guidance for Providers that “telling consumers that they must not talk about their values or beliefs in front of other consumers or aged care workers” will breach this. Again, this sounds reasonable at first instance however what if that right impacts the welfare of others? What if a consumer holds anti-Semitic or homophobic views offensive to other consumers or staff?
- How broadly the Commission interprets the Code is also relevant. Some of the examples given in the draft Guidance for Providers as to what the Commission considers will breach the Code are telling. For example, the Commission says that providing a false reference for an aged care worker will breach the Code. Given that an employee reference has no direct relationship to the care the provider offers its consumers, this indicates a willingness by the Commission to use the Code to regulate business-to-business conduct, something which is generally regulated by other laws.
These are just some of the myriad of challenge we see arising from the Code.
Providers have a responsibility to take reasonable steps to ensure aged care workers and governing persons comply with the Code. According to the Commission’s Guidance for Providers, reasonable steps include ensuring aged care workers and governing persons:
• read and understand the Code and relevant guidance including the Code of conduct – Guidance for aged care workers and governing persons
• undergo regular training and professional development that helps them understand, apply and uphold the behaviours expected under the Code
• understand the consequences of failing to act in accordance with the Code for the organisation and for them personally
• are supported to resolve issues where concerns are identified with their compliance with the Code (for example, through training, guidance and supervision to build skills and capability).
Providers should ensure they understand the Code and that their workers and members of governing body are aware of the changes that commence in December.