Regulator can ban staff from sector

Aged care workers who engage in serious poor conduct or who are deemed unsuitable to work in the sector can be banned from working in the industry by the Aged Care Quality and Safety Commission.

Under the new Code of Conduct for Aged Care, introduced on 1 December last year, the commission has the power to issue banning orders to current or former aged care workers – or a governing person of an approved provider – involved “in serious cases of poor conduct or where the individual is not suitable to be involved or engaged in the provision of aged care.”

This means the individual would be prohibited from providing residential and home care services, meaning, once banned, they would be unable to work elsewhere within the sector.

“The code of conduct sets out how aged care providers, their governing persons and staff must behave when providing aged care. The code provides the commission with a range of tools and powers to deal with behaviour that is inconsistent with the code, including issuing a banning order,” Aged Care Quality and Safety Commissioner Janet Anderson told Australian Ageing Agenda.

“A banning order is the commission’s most serious enforcement action against an individual,” she added. “Aged care workers whose behaviour is not consistent with the code of conduct should not be working in the sector.”

Also speaking to AAA, CEO of provider peak the Aged & Community Care Providers Association Tom Symondson said: “This will go some way towards giving aged care providers, aged care residents and their loved ones some peace of mind in the knowledge that staff who have been found to have engaged in poor conduct will not be welcome to continue working in the sector.”

He added: “The safety and wellbeing of older Australians receiving aged care and support services is paramount, which is why providers are obliged to ensure staff adhere to the code.”

Individuals can be prohibited or restricted from providing specified types of care or from engaging in specified activities, such as providing care unsupervised or transporting clients in a motor vehicle.

According to the commission, the nature of the banning order will depend on particular facts and circumstances – it may be for a limited or unspecified period, or permanent. The banning order may also be subject to conditions.

CEO of Older Persons Advocacy Network Craig Gear told AAA older Australians have a right to know the people who are delivering their care are fit to deliver that care. “We are pleased that there is now a mechanism in place to investigate and to ban those who shouldn’t be working in, managing or governing aged care.”

An individual who breaches a banning order or condition of a banning order will receive a court-imposed fine – as will a provider.

“An aged care provider who fails to take reasonable steps to ensure that their staff or governing persons do not engage in conduct that breaches a banning order would be contravening a civil penalty provision,” Ms Anderson told AAA. “The commission may take enforcement action for breaches of civil penalty provisions.”

Decided on a case-by-case basis, banning orders may follow other regulatory actions, such as a written caution, in response to an individual’s non-compliance with the code of conduct. The Code of Conduct for Aged Care was recommended by the aged care royal commission and is based on the disability sector’s NDIS Code of Conduct.

However, the commission can also make a banning order without any prior regulatory action being taken if there is an “immediate or severe risk to the safety, health or wellbeing … of one or more consumers.”

Other circumstances in which the commission can issue a banning order include:

• where the individual has at any time been convicted of an indictable offence involving fraud or dishonesty
• where the individual is an insolvent under administration.

When making a banning order, the commission will usually issue a notice of intention giving the individual 14 days to respond.In the most serious of cases, the commission may issue a banning order without first offering an opportunity for the individual to respond.

An individual who has received a banning order can request the commission to reconsider or revoke its decision.

The commission is compiling an Aged Care Banning Orders Register, which is publicly available on its website. “Every aged care provider has a responsibility to check the commission’s register to ensure that unsuitable individuals who are banned from the sector are not engaged for employment,” Ms Anderson told AAA.

So far, only one name has been added.

Mr Gear said he welcomed the scheme’s transparency. “It enables aged care providers, older people and their families to identify people who just shouldn’t be working in aged care.”

The banning orders are just one regulatory measure to ensure compliance of the code of conduct. Mr Symondson said the new code was an important reform that must be heeded. “I urge providers to ensure the code is embedded in their workplace and through employee training.”

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