This article is part of a series looking into the Final Report from the Royal Commission into Aged Care Quality and Safety. Click here to see the series as it's published.
The Royal Commission into Aged Care Quality and Safety has released its Final Report. In this article we explain the Report’s recommendations regarding provider governance in residential aged care, and set out some practical steps you can take right now to improve your governance.
“Provider governance” refers to the systems and processes that a residential aged care provider uses to control and monitor their organisation. Provider governance is about what the leadership team do to govern the aged care facility/s. It is distinct from what the Australian Government and the Quality Regulator do to govern the aged care industry more broadly. The Final Report made recommendations in both areas. This article focuses on provider governance only.
The Royal Commission’s Final Report found that some boards and governing bodies:
These are the recommendations in the Final Report that directly relate to provider governance:
These recommendations are complex and overlapping but can be understood as falling into these categories:
Currently, to become a member of a governing body a person must pass the “disqualified individual” test. This is a narrow test that says you can become a member unless you are disqualified because of a criminal record, past insolvency, or mental incapacity. The recommended “fit and proper person” test is much broader and will require a person to demonstrate their suitability for the job.
These recommendations were made by both Commissioners Briggs and Pagone:
There should be a new Governance Standard that requires every approved provider to:
This recommendation was made by Commissioner Briggs alone:
As a condition of accreditation, governing bodies must ensure that employment arrangements for the executive and other senior managers include performance appraisals that cover leadership, team development and support for organisational culture and practice consistent with the new Act.
This recommendation was made by Commissioner Briggs alone:
As a condition of accreditation, governing bodies should be required to adopt and implement a plan to manage and support staff training, professional development and continuous learning, staff feedback and engagement, and team building.
A provider’s constitution must not authorise a member of the governing body to act other than in the best interests of the provider.
This recommendation aims to ensure that members of the governing body act in the best interests of the organisation that is providing direct care to residents, and not in the best interests of any parent organisation.
There should be a new Governance Standard that requires every approved provider to:
There should be a new Governance Standard that requires every approved provider to have effective risk management practices covering care risks as well as financial and other enterprise risks, and give particular consideration to ensuring continuity of care in the event of default by contractors or subcontractors.
The law should be changed to require approved providers to:
The annual report should include at least the following information:
There should be a new Governance Standard that requires every approved provider to have a nominated member of the governing body who can attest to the quality of care.
The nominated person must attest annually on behalf of the members of the governing body that they have satisfied themselves that the provider has in place the structures, systems and processes to deliver safe and high quality care.
If such attestation cannot be given, the nominated person must explain the inability to do so and how it will be remedied.
Amend Freedom of Information laws to make it harder for providers to unjustifiably withhold information.
The Commissioner’s believe that current Freedom of Information laws allow aged care providers to unjustifiably refuse to share some information. “For instance, when a complaint is made to the Aged Care Quality and Safety Commission about an approved provider, the complaint is given to the provider but the provider’s response is not given to the complainant” because the response is considered “protected information” [468]. They recommend amending the Freedom of Information Act 1982 (Cth) to fix this imbalance and make it harder for providers to unjustifiably withhold information.
Not yet. As at 9 March 2021, the government had not officially responded to the Final Report’s recommendations, and the recommendations had not become law.
If the government adopts the Final Report’s recommended timeline, they will commence an urgent review of the governance Standard by 1 July 2021. It will then be several months before the review is complete and a new Standard is adopted. For some other recommendations, such as those regarding reporting obligations and the independence of board members, the Final Report specified a deadline of 1 January 2022.
Overall, our best guess is that most recommendations won’t become law until early 2022.
A useful step you can take right now is to audit your governance systems against the recommendations in the Final Report. This will help you identify the areas you need to work on. This checklist can get you started:
Rec # |
Requirement
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Y/N? |
Governing body and leadership team |
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88.1.a |
Does our governing body have a majority of independent non-executive members?
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88.1.d |
Can all the members of our governing body pass a “fit and proper person” test?
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90.a |
Do the members of our governing body possess between them the mix of skills, experience and knowledge of governance responsibilities, including care governance, required to ensure delivery of high quality care?
Consider compiling a skills matrix to demonstrate the diversity of the skills, experience and knowledge of the Board.
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89.a |
Do our leaders and managers have professional qualifications or high-level experience in management roles?
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89.b |
Do our employment arrangements for the executive and other senior managers include performance appraisal against the demonstration of leadership, team development and support for organisational culture and practice? |
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Obligation to act in best interests of care provider |
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88.1.b |
Does our constitution require members of the governing body to act in the best interests of the organisation that is providing direct care to residents, and not in the best interests of any parent organisation?
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Care governance committee |
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90.b |
Do we have a care governance committee, chaired by a non-executive member with appropriate experience in care provision, to monitor and ensure accountability for the quality of care provided, including clinical care, personal care and services, and supports for daily living?
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Plan for staff training and development |
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89.c |
Does our governing body have a plan to manage and support staff training, professional development and continuous learning, staff feedback and engagement, and team building?
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Feedback and complaints |
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90.c |
Have we allocated resources and implemented mechanisms to support regular feedback from, and engagement with, people receiving aged care, their representatives, and staff?
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90.d |
Do we have a system for receiving and dealing with complaints, including regular reports to the governing body about complaints, and containing, among other things, an analysis of the patterns of, and underlying reasons for, complaints?
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Risk management |
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90.e |
Do we have effective risk management practices covering care risks as well as financial and other enterprise risks?
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90.e |
Do we have risk management practices for ensuring continuity of care in the event of default by contractors or subcontractors?
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Reporting |
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88.1.c |
Do we have a system for reporting any changes to key personnel to the Quality Regulator within 10 business days of the change?
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88.1.e |
Do we have a system for producing an annual report that includes the names and positions of all key personnel; an attestation of quality care and information on staffing levels, qualifications, hours worked, employment status, and staff turnover?
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90.f |
Have we nominated a person to attest annually on behalf of the members of the governing body that they have satisfied themselves that the provider has in place the structures, systems and processes to deliver safe and high quality care?
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