Under the Regulatory Powers Act, an authorised officer can only enter a site for monitoring or investigating:
- with the consent of the occupier
or
- with a warrant.
The Aged Care Act adds to these powers in response to recommendations from the Royal Commission. This extra power lets authorised Commission officers enter and stay in a residential aged care home without consent or a warrant where there is an immediate and severe risk to the health, safety or wellbeing of residents.
Who can use this power
This extra power only applies to authorised Commission officers – people carrying out regulation for the Commissioner. Only the Commissioner can give this power.
When this power can be used
An authorised Commission officer can only use this power in very specific situations because it can affect the rights of other people in the aged care home.
The situation must meet all the following requirements:
- There is an immediate and severe risk to the health, safety or wellbeing of an older person. This is called an identified risk.
- It isn’t realistic for the authorised Commission officer to get a warrant under the Regulatory Powers Act.
The Commissioner must write a certificate confirming that they believe there is an identified risk in that situation and it’s not realistic to get a warrant. This certificate must be in force for an authorised Commission officer to enter a residential care home without consent or a warrant.
Entry to the residential care home in this situation must also be for the purposes of the specific safeguarding functions that are the Commissioner’s responsibility. These are:
- to uphold the Statement of Rights
- to protect and improve the safety, health, wellbeing and quality of life of older people
- to make sure providers are following the Aged Care Act
- to make sure aged care workers and responsible persons are meeting their obligations under the Aged Care Act.
Process before entering
An authorised Commission officer doesn’t need to give notice before entering a residential aged care home when using this power. But they must:
- announce that they are authorised to enter
- show their identity card to the occupier or someone representing the occupier, if they are there
- give people at the residential aged care home the chance to let them in.
The authorised officer must take these steps unless it would cause an unreasonable delay, or the officer reasonably believes it would impact their reason for the entry.
Process after entering
As soon as possible after entering the site, the authorised Commission officer must take reasonable steps to tell the occupier, or someone representing them, that they have entered and why they’ve entered.
They must also show their identity card or proof of their authority if the occupier asks to see it. If the officer doesn’t or can’t show this, they can’t stay at the site.
A person helping the authorised Commission officer can also enter under these powers with the authorised Commissioner officer, but only if their assistance is necessary and reasonable.
What the authorised Commission officer can do on site
While at the residential aged care home, the authorised officer can:
- direct the occupier to deal with the identified risk – for example, they might tell the occupier to provide an older person’s medical records or set up a process to manage the outbreak of an infectious disease
- use force against things as is necessary and reasonable when entering or while in the home
- secure something if they think it could be used as evidence for issuing a financial penalty under the Aged Care Act or if it is relevant to an offence under the Aged Care Act (or the Crimes Act 1914 or the Criminal Code if they relate to the Aged Care Act).
The officer must tell the occupier if they secure anything. They can only secure these things for as long as needed to get a warrant.
What the occupier must do
Under the Aged Care Act, the occupier must help the authorised Commission officer. This includes giving them all ‘reasonable facilities and assistance’ to carry out their powers and complying with any directions given by the authorised Commission officer. For example, giving them access to IT networks or record management systems. If the occupier doesn’t do this, they might receive a penalty. For example, a fine or time in prison.
Assessment officers and post-entry warrants
[Chapter 6 – Part 4 – Division 2]
If an authorised Commission officer enters a site using this power, the Commissioner has to apply for a post-entry warrant as soon as possible after they enter. They apply to an assessment officer for this warrant.
Who can be an assessment officer
Federal Court or state or territory Supreme Court judges can agree to be assessment officers. A senior member of the Administrative Review Tribunal can also be chosen to be an assessment officer.
Application process
To apply for a post-entry warrant, the Commissioner must:
- apply for the post-entry warrant in writing
- provide details about the reasons for entry and any other relevant information
- submit the certificate they gave to the authorised Commission officer approving the entry.
Approval process
The assessment officer decides whether to approve the post-entry warrant. If they approve the warrant, they must give a copy to:
- the Commissioner
- the authorised Commission officer
- the occupier of the residential aged care home at the time of entry.
If the assessment officer doesn’t approve the warrant, they must let the Commissioner, authorised Commission officer and occupier know. They will also give the occupier information about their right to make a complaint or take further action.
Investigating a site without consent in practice
Case study: Late one night, the Commission receives an urgent report that a resident at an aged care home is being restrained in a way that may seriously harm their health and wellbeing. The Commissioner decides there is an immediate and severe risk and that it isn’t realistic to obtain a warrant in time. They issue a written certificate authorising a trained Commission officer to enter the home without consent or a warrant.
Applying the regulation: The officer arrives at the home and meets the night manager. They show their identity card and tell the manager that they have the legal authority to enter the home without needing permission. The officer explains that they are there to address an identified risk to a resident’s safety and enter the site. Inside, the officer inspects the resident’s care records, speaks to on-duty staff, and observes the resident’s condition. They direct the provider to address the identified risk. The officer also secures relevant incident reports and CCTV footage to preserve potential evidence, informing the manager that these items will be kept until a warrant is obtained.
The Commissioner applies for a post-entry warrant the next morning, submitting the authorising certificate and a detailed account of the entry. The warrant is granted, allowing the Commission to continue its investigation into possible breaches of the Aged Care Act and, if needed, to take enforcement action.