Under the Aged Care Act 1997 (the Aged Care Act), approved providers of residential aged care must:
- report to the police and the Commission incidents of alleged or suspected reportable assaults within 24 hours of the allegation, or when the approved provider starts to suspect a reportable assault has occurred
- take reasonable measures to ensure staff members report any suspicions or allegations of reportable assaults to the approved provider (or other authorised person), to the police and the Commission
- take reasonable measures to protect the identity of any staff member who makes a report and protect them from victimisation.
Five key elements to compulsory reporting
- The Aged Care Act requires that, except in very specific circumstances, approved providers of residential aged care must report every allegation or suspicion of a reportable assault.
- Reports must be made to both the police and the Commission within 24 hours of the allegation being made, or from the time the approved provider starts to suspect, on reasonable grounds, that a reportable assault may have occurred.
- If a staff member makes a disclosure that qualifies for protection under the Aged Care Act, the approved provider must protect the identity of the staff member and ensure that the staff member is not victimised.
- If an approved provider fails to meet compulsory reporting requirements the Commission may take compliance action.
- Compliance with compulsory reporting requirements is monitored by the Commission.
What is a reportable assault?
A reportable assault as defined in the Age Care Act (section 63-1AA) means:
- unlawful sexual contact with a resident of an aged care home, or
- unreasonable use of force on a resident of an aged care home.
Unlawful sexual contact
Unlawful sexual contact refers to non-consensual sexual contact involving residents in aged care facilities. Reporting requirements under the law are designed to protect vulnerable residents, not to restrict their sexual freedom. Where the contact involves residents with an assessed cognitive or mental impairment (refer to below definition), the resident may not have the ability to provide informed consent, therefore this should be reported.
Unreasonable use of force
Unreasonable use of force as defined in the Aged Care Act is intended to capture assaults ranging from deliberate and violent physical attacks on residents to the use of unwarranted physical force on a resident. This may include hitting, punching or kicking a resident regardless of whether this causes visible harm, such as bruising.
It is recognised that in the aged care environment, there may be circumstances where a staff member could be genuinely trying to assist a resident, and despite their best intentions the resident is injured because the person bruises easily or has fragile skin. Injury alone therefore may not provide evidence of either the use of unreasonable force or the seriousness of an assault. However in these circumstances if an allegation is made a reportable assault form should be lodged within the required timeframe.
The Guide for aged care staff provides more information on how to assess whether an incident is reportable.
Reporting to the Aged Care Quality and Safety Commission
To report a suspicion or allegation made of a reportable assault, an approved provider must within 24 hours:
• call the compulsory reporting line on 1800 081 549. Note: it is the Commission’s preference that a written form be submitted.
Reporting to the police
Approved providers are required to report any allegation or suspicion of a reportable assault to the police within 24 hours of becoming aware or suspecting a reportable assault has occurred. This ensures that the appropriate emergency response is taken and those residents affected receive timely help and support.
Approved provider responsibilities
Making a report
Under section 63-1AA of the Aged Care Act an approved provider is responsible for reporting an alleged or suspected reportable assault within 24 hours, to the local police station and the Commission.
An allegation is usually a claim or accusation made to the approved provider. A suspicion is where there is no actual allegation or where an actual assault may not have been witnessed, and where staff observe signs that an assault may have occurred.
Requiring staff members to report reportable assaults
An approved provider must take reasonable measures to require its staff members, who suspect on reasonable grounds, that a reportable assault has occurred, to report the suspicion immediately to the appropriate authorised person in the organisation. Within 24 hours of the allegation or suspicion, a report should be made to the police and Commission.
Approved providers should have internal policies and processes in place that create a culture of reporting, responding and documenting alleged or suspected assaults. Staff should be trained to recognise if an assault may have occurred and how to respond, and encouraged to raise suspicions of assault internally to the approved provider’s authorised persons for consideration and action.
Staff should be aware of the:
- requirement and procedures for reporting any alleged or suspected incidents of assault on a resident and who they should report to
- option to report to the Commission where they may be concerned about anonymity, or where the staff member is concerned about reporting incidents that may directly involve the service’s personnel or the approved provider
- protections in place and the circumstances in which they would qualify for protection
- consequences of providing false or misleading information.
Reports may be made to one or more of the following persons chosen by the staff member, and as directed by the approved provider:
- the approved provider
- one of the approved provider's key personnel
- another person authorised by the approved provider to received reports of suspected reportable assaults
- a police officer with responsibility relating to the area including the place where the assault is suspected to have occurred
- the Commission.
Approved providers must ensure that authorised people within its services are identified and that staff are aware of who those people are.
Approved providers must keep consolidated records of all incidents involving allegations or suspicions of reportable assaults which can be, upon request, reviewed by the Commission. The Aged Care Act requires that each consolidated record includes:
- the date when the approved provider received the allegation, or started to suspect on reasonable grounds, that a reportable assault had occurred
- a brief description of the allegation or the circumstances that gave rise to the suspicion, and
- information about whether a report of the allegation or suspicion has been made to a police officer and the Commission; or whether the allegation or suspicion has not been reported to a police officer or the Commission because subsection 63-1AA(3) of the Aged Care Act applies.
Approved providers also have a responsibility to ensure that they have in place systems and procedures that allows them to meet all of their responsibilities under the Aged Care Act, including:
- complying with requirements in relation to protection of personal information (in section 62-1 of the Aged Care Act), and
- ensuring compliance with all relevant legislation and regulatory requirements in relation to privacy issues, including State, Territory or Commonwealth legislation, such as the Privacy Act 1988.
When is an approved provider not required to report alleged or suspected assaults to the Commission?
In limited circumstances approved providers are not required to report alleged or suspected assaults. Approved providers do not need to report when:
- the alleged assault is perpetrated by a resident with an assessed cognitive or mental impairment, and care arrangements are put in place to manage the behaviour within 24 hours
- when previous reports of the same or similar incidents have been made to the police and the Commission.
These limited circumstances do not prevent an approved provider from reporting an assault to the police or the Commission.
What is cognitive or mental impairment?
• Cognitive impairment refers to declining ability in judgement, memory, learning, comprehension, reasoning and/or problem solving and can result from a number of conditions, including dementia and delirium.
• Mental impairment includes senility, intellectual disability, mental illness, brain damage, and severe personality disorder.
Assaults perpetrated by a resident with cognitive or mental impairment
The requirement to report does not apply if the approved provider meets the following conditions (detailed in the Accountability Principles 2014):
- within 24 hours of receiving an allegation or the start of the suspicion, the approved provider forms an opinion that the assault was committed by a resident, and
- prior to the receipt of the allegation, the resident has been assessed by an appropriate health professional as suffering from a cognitive or mental impairment, and
- the approved provider puts in place, within 24 hours of the allegation, or suspicion, arrangements for management of the resident's behaviour, and
- the approved provider has:
- a copy of the assessment (or other documents) regarding the resident's cognitive or mental impairment, and
- a record of the behaviour management strategies that have been put in place.
The Aged Care Quality Standards require approved providers to effectively manage the needs of care recipients with challenging behaviours.
Appropriate assessment of cognitive and mental impairment
To meet the requirements of the Aged Care Act, an assessment of a resident's cognitive or mental impairment could be undertaken by one of more of the following:
- a resident’s medical practitioner
- a registered nurse (RN)
- another medical practitioner with the appropriate clinical expertise.
An assessment may have been undertaken in a community or hospital setting.
Previous reports or the same or similar incident
The requirement to report reportable assaults under section 63-1AA of the Aged Care Act does not apply when:
- the later allegation related to the same, or substantially the same, factual situation or event as an earlier allegations or suspicion of a reportable assault, and
- an earlier allegation was reported to a police officer and the Commission under section 63-1AA of the Aged Care Act.
Note: this includes where different people report the same event, and/or the same person makes allegations repeatedly and those allegations have been assessed.
The Commission’s role
The investigation of alleged or suspected assault is the responsibility of the police who will determine whether the incident is criminal in nature and what further police action is required. The information provided to the Commission in relation to a reportable assault will be recorded by the Commission and may be used by the Commission as part of its ongoing regulatory functions under the Aged Care Quality and Safety Commission Act 2018.
The Commission may take compliance action where approved providers do not meet the compulsory reporting requirements under the Aged Care Act. The Commission assesses an approved provider's compliance with the Aged Care Quality Standards through its usual monitoring and accreditation processes. This includes an approved provider’s compliance with its regulatory responsibilities, specifically:
- that processes are in place to encourage staff to report allegations or suspicions of incidents of assault on a resident
- that the approved provider is keeping records of all incidents of assault
- whether an approved provider met the conditions for not reporting an incident of assault
The Commission may take compliance action where approved providers do not meet the Aged Care Quality Standards.
The Commission can also receive complaints of abuse or neglect of an aged care resident. People can also raise concerns about the quality of care or services being delivered to people received aged care services subsidised by the Australian Government. A complaint can be made openly, anonymously, or request that their identity remain confidential.
A complaint can be lodged with the Commission on 1800 951 822.
Protecting individuals who report an assault
Section 96–8 of the Aged Care Act establishes a range of protections for staff and approved providers who report alleged or suspected assaults. Specifically, the Aged Care Act states that a disclosure of information by a person qualifies for protection if the:
- person is an approved provider of residential aged care or a staff member of such an approved provider
- disclosure is made to one or all of the following:
- a police officer
- the Commission
- the approved provider
- one of the approved provider's key personnel
- another person authorised by the approved provider to receive such reports
- person making the disclosure informs the person to whom the disclosure is made of their name before making the disclosure
- person making the disclosure has reasonable grounds to suspect that the information indicates that a reportable assault has occurred
- person making the disclosure does so in good faith.
What are approved providers or staff members reporting an assault protected from?
- Any civil or criminal liability for making the disclosure and in proceedings for defamation relating to the disclosure and is not liable to an action for defamation relating to the disclosure, and from someone enforcing a contractual or other remedy against that person based on the disclosure.
- A contract that the person making the disclosure is a party cannot be terminated on the basis that the disclosure breaches the contract. For example, if a staff member’s contract of employment specifies that the staff member must not discuss issues arising in an aged care home with anyone outside the home, a disclosure by the staff member that qualifies for protection, removing the employer’s the right to terminate the contract. However, the protections come into effect when the information is disclosed to a person specified in the list of people under section 96–8.
- Victimisation, detriment and threats because of a disclosure that qualifies for protection. If the other person is a staff member of an approved provider, the provider has a responsibility to ensure, as far as reasonably practicable, compliance with this requirement. Compliance action may be taken if the approved provider does not comply with this responsibility.
Residents of aged care homes, their families and advocates, visiting medical practitioners, other allied health professionals, volunteers and visitors are not required under the Aged Care Act to report an assault and are not afforded statutory protection under the legislation.
Contact for reporting
Compulsory reporting line: 1800 081 549
• Guide for Aged Care Staff - Compulsory Reporting
• Compulsory reporting for approved providers of residential aged care services
• Guide for reporting unexplained absences
• Notice of Collection
• Reportable Assault Flowchart for Residential Aged Care