As well as the powers under the Regulatory Powers Act, the Aged Care Act has other tools to support regulation. One of these tools is that regulators can give notices.
There are 3 different types of notices:
- Notices requiring action: These require a provider to take a certain action.
- Compliance notices: These are used when a provider is not, or may not be, complying with the Aged Care Act.
- Notices to attend to answer questions or give information or documents: These are used to let someone know they need to provide information or answer questions.
There are penalties for not complying with these notices.
Notices requiring action
[Chapter 6 – Part 10 – Division 1]
The Commissioner, Complaints Commissioner and System Governor can give a required action notice to providers. This type of notice tells a provider to look into an issue and report back to the relevant regulator.
What they are for
Required action notices work as an initial investigatory tool where stronger regulatory powers are not yet needed. For example, these notices are useful for complaints where an older person’s rights might not have been upheld. In these types of cases, if the regulator isn’t sure whether the provider is following the Aged Care Act, this notice can tell a provider to look into the issue.
When they can be issued
The Commissioner or the Complaints Commissioner can give required action notices in relation to:
- a complaint or other information held by the Commission in relation to a provider
- rights, under the Statement of Rights, of someone accessing aged care through a provider
- a provider’s obligations under Part 4 of Chapter 3 of the Aged Care Act.
The System Governor can also give required action notices related to their responsibilities. They can only do this if they have reason to believe a provider hasn’t been or isn’t following the Aged Care Act.
What it must include
The required action notice must include:
- the name of the provider
- the details of the issue
- an explanation of what the provider needs to do, both looking into the issue and reporting back to the regulator
- whether an independent expert has to investigate
- what will happen if the provider doesn’t follow the notice.
Compliance notices
[Chapter 6 – Part 10 – Division 2]
The Commissioner and the System Governor can also give a compliance notice if
- they are satisfied that a provider hasn’t been or isn’t following the Aged Care Act, or
- they are aware of information that suggests the provider hasn’t been or isn’t following the Aged Care Act.
This includes if the provider’s behaviour is showing a ‘significant failure’ or is part of a ‘systemic pattern of conduct’.
A compliance notice must include:
- the name of the provider
- details of the issue or actions that go against or possibly go against the Aged Care Act
- what the provider must do, or stop doing
- how long they have to do this and how long they have to reply to the regulator
- what will happen if they don’t follow the notice
- an explanation of the significant failure or systemic pattern of conduct (if this applies).
Notices to attend or give information or documents
[Chapter 6 – Part 10 – Division 3]
The Commissioner, the Complaints Commissioner and the System Governor can give a:
- notice to attend to answer questions or give information or documents
- notice to give information or documents.
These notices help the regulator get information so they can make informed decisions. They can give these notices to people they believe have the kind of information or documents they need. The main difference is whether the person has to appear before the officer or only provide them with information.
Someone who receives a notice to attend must appear before an authorised officer. They may need to answer questions or provide documents, or copies of documents, to the officer. The notice must tell the provider about their obligations to cooperate under the Aged Care Act.
If the person has to answer questions from the officer, they may need to take an oath or make an affirmation – a statement confirming that what they say is true.
People have the right not to answer a question or give information if it could incriminate them – make them seem guilty of wrongdoing. The Aged Care Act doesn’t overrule this right.
Issuing notices in practice
Required action notice: The Complaints Commissioner gets a complaint from a resident in an aged care home who can’t get information about the cost of their services. As the issue may involve a breach of the resident’s rights, the provider is issued a required action notice to investigate and report back. This notice is used when a formal response is needed but stronger powers aren’t appropriate.
Compliance note: An audit finds ongoing hygiene issues across several aged care homes run by the same provider. The Commission issues a compliance notice requiring the provider to fix the problem within a set timeframe. This notice is used because there is clear evidence of serious or repeated non-compliance with the Aged Care Quality Standards.
Notice to give information or documents: The department is investigating concerns about how certain government funds were used by a provider. The department issues a notice to give information or documents to the provider’s finance manager. The notice asks the finance manager to provide certain documents or information relevant to the department’s concerns. This helps the regulator gather the information needed to make informed decisions.