As providers would now be aware the Aged Care and Other Legislation (Royal Commission Response) Bill 2022 (the Royal Commission Response Bill 2022) passed on 2 August 2022. The Royal Commission Response Bill 2022 closely mirrors the second tranche of legislative reform stemming from the Royal Commission introduced by the previous government, the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021 (2021 Bill). The 2021 Bill lapsed at dissolution of the previous Parliament on 11 April 2022.

The Governance provisions which are set out at Schedule 5 of the Royal Commission Response Bill commence in December 2022. With respect to key personnel requirements, there are slight changes between the 2021 Bill and the Royal Commission Response Bill 2022, which are outlined below.

Approved providers must prepare for the new key personnel rules which require a more detailed assessment criteria for engaging those in key positions and require the provider to report any changes in circumstance to the Aged Care Quality and Safety Commission within 14 days.

Who are key personnel in aged care?

Approved providers should be well aware of the definition of key personnel; this is not changing. Broadly speaking, the key personnel of an entity are those responsible for key aspects of an approved provider’s operations, which ultimately underpin the quality of care and services provided to care recipients.

Key personnel include managers, board members and anyone else with “significant influence over planning, directing or controlling the activities of the approved provider.” At a service level, it also includes managers and senior nurses.

What are the new obligations in relation to key personnel?

Providers must be clear about which roles and personnel constitute key personnel and ensure that they:

  1. Consider the new suitability criteria before engaging the person; and
  2. Notify the Commission of any changes in key personnel or any suitability matters within 14 days. This is a shorter timeframe than previously required.

Failure to notify will result in an offence of strict liability as well as possible sanctions under the Aged Care Quality and Safety Commission Act 2018.

Providers will need to consider a much broader range of suitability matters in relation to key personnel than they currently do. Presently, providers only need to check if the person is bankrupt or if they have a criminal record for an indictable offence, both of which automatically disqualify the person from acting a key personnel.

Some of the key new matters to consider include (but are not limited to):

  • The individual’s experience in providing aged care or other relevant care;
  • Whether the individual has been convicted of an indictable offence or has been the subject of a civil penalty order; and
  • Whether the individual is or has been the subject of adverse findings or enforcement action by a regulatory body. For example, for key personnel with nursing or allied health qualifications, this would include adverse findings by a Tribunal in relation to the person’s conduct as a health professional.

To be clear, if there is a suitability matter identified with a key personnel, it does not necessarily mean that that person should not be a member of key personnel. The provider will need to conclude whether it is ‘reasonably satisfied’ that the individual is suitable having regard to all the suitability matters.

Providers must also inform the Commission of this within 14 days of becoming aware that there is a change in circumstances relating to suitability matters.

What is the difference between the 2021 bill and 2022 bill?

The provisions relating to key personnel in the 2021 Bill and Royal Commission Response 2022 are almost identical, except for the removal of worker’s screening checks from the broad range of suitability matters. This is because “workers screening” has been removed from the Royal Commission Response Bill 2022.

Other than this, the suitability matters that must be considered by providers remains the same as set out in the 2021 Bill.

How can providers prepare?

Providers must ensure they consider the suitability of key personnel at least every 12 months.

We recommend providers implement a checklist for the provider and individual key personnel to complete. We recommend that this checklist is designed as soon as possible. We also recommend that provider introduce a criteria to determine if they are “reasonably satisfied” that a person is suitable to be key personnel. This criteria will be critical in the event that current or further key personnel declare a suitability matter.

We recommend providers ensure their employment agreements and policies are updated and contain an obligation for key personnel to immediately notify the provider of any suitability matters.

Key personnel must also be made aware of their obligations under these reforms as it will not be acceptable to say that they were not made aware of these changes. We recommend that providers write to their key personnel to inform them of these changes as soon as possible. This should give them time to consider whether there are any issues with them continuing in the role.