These Principles are the Complaints Principles 2011.
13A.2 Commencement
These Principles commence on 1 September 2011.
13A.3 Revocation
The Investigation Principles 2007 are revoked.
13A.4 Definitions
In these Principles:
ACC means the Aged Care Commissioner.
Act means the Aged Care Act 1997.
complainant means a person who makes a complaint to the Secretary under section 13A.5.
Quality Agency means the Australian Aged Care Quality Agency.
resolution process means the process undertaken by the Secretary under section 13A.9 to resolve an issue that is:
(a) raised by a complaint made under section 13A.5; or
(b) raised by another source under section 13A.8.
Part 2—Complaints
13A.5 Making a complaint
(1) A person may make a complaint to the Secretary raising an issue or issues about an approved provider’s responsibilities under the Act or the Principles made under section 96‑1 of the Act.
(2) The complaint may be made orally or in writing, and may be made anonymously.
(3) A complainant may ask the Secretary to keep the following information confidential:
(a) the identity of the complainant;
(b) the identity of a person identified in the complaint;
(c) any other details included in the complaint.
13A.6 Dealing with a complaint
If the Secretary receives a complaint under subsection 13A.5(1), the Secretary must, in relation to each issue raised in the complaint:
(a) decide to take no further action on the issue on the basis that section 13A.7 applies to the complaint; or
(b) quickly resolve the issue to the satisfaction of the complainant by giving assistance and advice to the complainant or approved provider to which the issue relates; or
(c) undertake a resolution process.
Note: Examples for paragraph (b):
1 Assist the complainant to clarify the issues to enable the complainant to raise them directly with the approved provider.
2 Phone the approved provider on behalf of the complainant to discuss and resolve the issue raised by the complainant.
3 Advise the approved provider of the approved provider’s rights and responsibilities under the Act and, in doing so, facilitate the resolution of the issue.
13A.7 No further action on an issue
Part Part 8 - Complaints Principles 2011 - Transitional | Zoe
The Secretary may decide to take no further action under paragraph 13A.6(a) if one of the following circumstances applies:
(a) the issue was not raised in good faith;
(b) the issue is, or has been, the subject of a legal proceeding;
(c) the issue has been dealt with under these Principles or the Investigation Principles 2007;
(d) the issue relates to an event:
(i) that occurred more than one year before the complaint was given to the Secretary; and
(ii) that is not ongoing;
(e) the issue is subject to a coronial inquiry;
(f) a care recipient named in the complaint does not wish the issue to be considered by the Secretary;
(g) the issue is better dealt with by another organisation;
(h) having regard to all the circumstances, a resolution process in relation to the issue is not warranted.
Part 3—Resolution process
13A.8 Secretary may undertake resolution process on own motion
(1) This section applies if the Secretary receives information that raises an issue about an approved provider’s responsibilities under the Act or the Principles made under section 96‑1 of the Act, from a source other than a complaint under section 13A.5.
(2) The Secretary may undertake a resolution process in relation to the issue.
13A.9 Resolution process
(1) If the Secretary undertakes a resolution process in relation to an issue, the Secretary may adopt one or more of the following approaches to resolve the issue:
(a) request the approved provider to which the issue relates to examine and attempt to resolve the issue and report back to the Secretary;
(b) request the complainant (if any), the approved provider and any other person to participate in a conciliation process;
(c) undertake an investigation of the issue;
(d) refer the issue to mediation.
(2) In adopting any of the approaches in subsection (1), the Secretary may do one or more of the following:
(a) analyse and review documents;
(b) visit the location at which the services are provided by the approved provider or the offices of the approved provider;
(c) discuss the issue with the complainant (if any), the approved provider or any other person, in person or by other means;
(d) request information from any person.
13A.10 Notifying approved provider
(1) If the Secretary undertakes a resolution process, the Secretary must notify the approved provider to which the issue relates about the issue as soon as practicable, unless the Secretary considers that the notification will, or is likely to:
(a) impede the resolution of the issue; or
(b) place the safety, health or well‑being of the complainant (if any), a care recipient or any other person at risk; or
(c) place the complainant (if any) or a care recipient at risk of intimidation or harassment.
(2) If the Secretary decides to undertake an unannounced visit to the location at which services are provided by the approved provider or to the offices of the approved provider, the Secretary does not need to notify the approved provider of the issue until the time of the unannounced visit.
13A.11 Confidentiality
(1) The Secretary must ensure that a request for confidentiality under subsection 13A.5(3) is complied with unless the Secretary considers that doing so will, or is likely to, place the safety, health or well‑being of the complainant, a care recipient or any other person at risk.
(2) The Secretary must take all reasonable steps to notify the complainant before deciding not to keep information confidential that the complainant has requested be kept confidential under subsection 13A.5(3).
13A.12 Withdrawal of complaint
(1) The complainant may withdraw from the resolution process, either orally or in writing, at any time.
(2) The Secretary may undertake, or continue to undertake, the resolution process despite the complainant withdrawing from the resolution process.
Note: A complainant who withdraws from the resolution process ceases to have a right to be given feedback or to apply for reconsideration or an examination of the Secretary’s decision by the ACC.
Part 4—Outcome of resolution process
13A.13 Ending resolution process
The Secretary may decide to end a resolution process if one or more of the following circumstances apply:
(a) for an issue raised by a complaint—the issue has been resolved because the complainant, and approved provider to which the issue relates, have agreed on an outcome;
(b) the approved provider has addressed the issue to the satisfaction of the Secretary;
(c) the Secretary has directed the approved provider, in accordance with section 13A.14, to take stated action to comply with its responsibilities under the Act and the Principles made under section 96‑1 of the Act;
(d) the Secretary has initiated action under Part 4.4 of the Act on the basis that the approved provider has not complied, or is not complying, with one or more of its responsibilities under Parts 4.1 to 4.3 of the Act;
(e) the complainant (if any) has withdrawn from the resolution process;
(f) the issue is better dealt with by another organisation;
(g) continuation of the resolution process is not warranted because the Secretary is satisfied that:
(i) despite reasonable inquiry by the Secretary, the circumstances giving rise to the issue can not be determined; or
(ii) the information given by the complainant (if any) was not given in good faith; or
(iii) the issue is, or has been, the subject of a legal proceeding; or
(iv) the issue has been dealt with under these Principles or the Investigation Principles 2007; or
(v) the issue is subject to a coronial inquiry; or
(vi) for an issue raised by a complaint—a care recipient named in the complaint does not wish the resolution process to continue;
(h) having regard to all the circumstances, continuation of the resolution process is not warranted.
Note: Requirements for feedback following a decision under this section to end a resolution process are in Part 5.
13A.14 Directions to approved provider
(1) If, as part of a resolution process, the Secretary is satisfied that the approved provider to which the resolution process relates, is not meeting the approved provider’s responsibilities under the Act or the Principles made under section 96‑1 of the Act, the Secretary may give directions to the approved provider.
(2) The directions must require the approved provider to take stated actions in order to comply with the approved provider’s responsibilities under the Act or the Principles made under section 96‑1 of the Act.
(3) Before the Secretary gives directions to the approved provider, the Secretary must give a written notice of intention to issue directions to the approved provider.
(4) However, the Secretary may give directions to the approved provider, without having issued a notice of intention to issue directions, if it is necessary to do so because prompt action is required by the approved provider in order to protect the health, safety or wellbeing of a care recipient.
(5) The notice of intention to issue directions must:
(a) describe the preliminary findings of the Secretary and the concerns of the Secretary about the apparent failure of the approved provider to meet the approved provider’s responsibilities under the Act or the Principles made under section 96‑1 of the Act; and
(b) give the approved provider the opportunity to respond to these findings by identifying how the approved provider has addressed or will address the concerns identified; and
(c) state the timeframe the approved provider has for responding to the notice.
(6) The approved provider may respond to the notice of intention to give directions.
(7) If the approved provider responds to the notice under subsection (6), the approved provider must give the response in writing to the Secretary:
(a) within 14 days after receiving the notice; or
(b) within such other time as specified in the notice.
(8) The Secretary may, after considering any response from the approved provider, give written directions to the approved provider directing the approved provider to take stated actions in order to comply with its responsibilities under the Act and the Principles made under section 96‑1 of the Act.
Note: If the Secretary is satisfied that the approved provider has addressed the issue, the Secretary may decide to end the resolution process under paragraph 13A.13(b).
(9) If the Secretary gives directions to an approved provider, the approved provider must comply with the directions.
(10) If the approved provider fails to comply with the directions, the Secretary may initiate action under Part 4.4 of the Act.
Part 5—Feedback
13A.15 Feedback on no further action
If the Secretary decides to take no further action on an issue under paragraph 13A.6(a), the Secretary must, as soon as practicable, give the complainant, unless the complaint was made anonymously, written feedback about:
(a) the Secretary’s decision to take no further action and the reasons for that decision; and
(b) how the complainant may apply for reconsideration by the Secretary or examination of the Secretary’s decision by the ACC; and
(c) any other appropriate feedback.
13A.16 Feedback on resolution process
(1) If the Secretary decides to end a resolution process under section 13A.13, the Secretary must, as soon as practicable, give the complainant (if any) and the approved provider to which the resolution process relates written feedback about:
(a) any key findings; and
(b) the Secretary’s decision to end the resolution process and the reasons for that decision; and
(c) how the complainant or the approved provider may apply for reconsideration by the Secretary or examination of the Secretary’s decision by the ACC; and
(d) any other appropriate feedback.
(2) However, the Secretary is not required to provide feedback to a complainant if the complaint is made anonymously or if the complainant withdraws from the resolution process.
(3) The Secretary may give different feedback to the complainant and the approved provider.
13A.17 Feedback to other persons
The Secretary may give feedback about a resolution process to any other person or organisation that the Secretary considers has a sufficient interest in the matter.
Part 6—Other actions
13A.18 Referral to other organisations
(1) Nothing in these Principles prevents the Secretary from referring an issue to another organisation.
(2) A resolution process may continue even if the Secretary has referred the issue to which the process relates to another organisation under subsection (1).
13A.19 Use of information obtained during resolution process
Nothing in these Principles prevents the use of information that was obtained during the administration of these Principles for any other purpose related to the administration of the Act or the Principles made under section 96‑1 of the Act.
13A.20 Secretary may take action under the Act
Nothing in these Principles prevents the Secretary from taking action in relation to an issue under Part 4.4 of the Act instead of under these Principles.
Part 7—Reconsideration and examination of decisions
13A.21 Application for reconsideration by Secretary
(1) A complainant may apply to the Secretary for reconsideration of a decision by the Secretary under paragraph 13A.6(a) to take no further action on a complaint made by the complainant.
(2) A complainant (if any) or an approved provider to which a resolution process relates may apply to the Secretary for reconsideration of a decision by the Secretary to end the resolution process under section 13A.13.
(3) However, an application cannot be made under subsection (2) for reconsideration of a decision to end a new resolution process undertaken following a decision under paragraph 13A.22(1)(b).
(4) An application under subsection (1) or (2) must:
(a) state the reasons (other than dissatisfaction with the decision) why examination is sought; and
(b) be made within 28 days of the applicant being notified in writing of the decision.
(5) The application may be made orally or in writing.
13A.22 Reconsideration by Secretary
(1) Within 28 days of receipt of an application under section 13A.21, the Secretary must:
(a) confirm the decision to take no further action or to end the resolution process; or
(b) decide to undertake a new resolution process.
(2) If the Secretary confirms the original decision under paragraph (1)(a), the Secretary must advise the applicant for reconsideration in writing of the Secretary’s decision.
(3) If the Secretary decides to undertake a new resolution process under paragraph (1)(b), the Secretary must complete the process:
(a) in accordance with Parts 3 to 5; and
(b) within 28 days of making the decision.
(4) If the Secretary decides to undertake a new resolution process under paragraph (1)(b), the Secretary must notify the complainant and the approved provider to which the issue relates, in writing, of the Secretary’s decision.
13A.23 Application for examination by ACC
(1) A complainant may apply to the ACC for examination of a decision by the Secretary under paragraph 13A.6(a) to take no further action on a complaint made by the complainant.
(2) A complainant (if any) or an approved provider to which a resolution process relates may apply to the ACC for examination of a decision by the Secretary under section 13A.13 to end the resolution process.
(3) However, an application cannot be made to the ACC for examination of a decision by the Secretary under section 13A.13 to end the resolution process on the basis that the Secretary has initiated action under Part 4.4 of the Act.
(4) A complainant (if any) may apply to the ACC for examination of a decision by the Secretary:
(a) under paragraph 13A.22(1)(a) confirming a decision to take no further action or to end a resolution process; or
(b) under section 13A.13 to end a new resolution process following a reconsideration by the Secretary.
(5) An approved provider may apply to the ACC for examination of a decision by the Secretary:
(a) under paragraph 13A.22(1)(a) confirming a decision to end a resolution process; or
(b) under section 13A.13 to end a new resolution process following a reconsideration by the Secretary.
(6) An approved provider may apply to the ACC for examination of a decision by the Secretary to end a new resolution process under section 13A.13, if:
(a) the resolution process was undertaken as a result of a direction by the ACC under paragraph 13A.25(2)(c); and
(b) the Secretary gave directions under section 13A.14 to the approved provider as part of the new resolution process that were not given as part of the original resolution process.
(7) However, an approved provider must not apply under subsection (6) for examination of a decision to end a new resolution process in relation to an issue if the approved provider has previously applied under subsection (6) for examination of a new resolution process relating to the same issue.
(8) An application mentioned in subsection (1), (2), (4), (5) or (6) must:
(a) state the reasons (other than dissatisfaction with the decision) why examination is sought; and
(b) be made within 28 days of the applicant being notified in writing of the Secretary’s decision.
(9) The application may be made orally or in writing.
13A.24 ACC must decide whether to examine
(1) Within 14 days of receipt of an application under subsection 13A.23(1), (2), (4), (5) or (6), the ACC must:
(a) decide to take no further action on the basis that subsection (2) applies; or
(b) decide to examine the Secretary’s decision.
(2) The ACC may decide to take no further action if:
(a) the application for examination was not made in good faith; or
(b) the application relates to an issue that is, or has been, the subject of a legal proceeding; or
(c) the application relates to an issue that is subject to a coronial inquiry; or
(d) a care recipient named in the application does not wish for the matter to be considered by the ACC; or
(e) having regard to all the circumstances, examination of the Secretary’s decision is not warranted.
(3) If the ACC decides under paragraph (1)(a) to take no further action, the ACC must notify the following persons in writing of the ACC’s decision:
(a) if the application under section 13A.23 was made by the complainant—the complainant;
(b) if the application under section 13A.23 was made by the approved provider—the approved provider;
(c) the Secretary.
(4) If the ACC decides under paragraph (1)(b) to examine the Secretary’s decision, the ACC must notify the following persons in writing of the ACC’s decision:
(a) the complainant;
(b) the approved provider;
(c) the Secretary.
(5) The ACC may also notify any other person the ACC considers appropriate.
13A.25 Examination by ACC
(1) If the ACC decides under paragraph 13A.24(1)(b) to examine a decision of the Secretary, the ACC may examine the decision in whatever manner the ACC considers appropriate.
(2) Within 60 days of the ACC deciding under paragraph 13A.24(1)(b) to examine the Secretary’s decision, the ACC must:
(a) decide to take no further action on the basis that subsection 13A.24(2) applies; or
(b) recommend that the Secretary not undertake a new resolution process; or
(c) direct the Secretary to undertake a new resolution process in accordance with Parts 3 to 5.
(3) If the ACC directs under paragraph (2)(c) that the Secretary undertake a new resolution process, the ACC may specify matters the Secretary must take into account in undertaking the new resolution process.
(4) The ACC must notify the following persons, in writing, of the ACC’s decision under subsection (2), and any matters identified under subsection (3):
(a) the complainant (if any);
(b) the approved provider to which the examination relates;
(c) the Secretary.
(5) The ACC may also notify any other person the ACC considers appropriate.
13A.26 New resolution process following ACC examination
(1) If the ACC directs under paragraph 13A.25(2)(c) that the Secretary undertake a new resolution process, the Secretary must, within 46 days of receiving the direction:
(a) consider the matters identified by the ACC under subsection 13A.25(3); and
(b) undertake and end the new resolution process in accordance with Parts 3 to 5 and this section.
(2) The timeframe mentioned in subsection (1) may be extended by a further 28 days if the Secretary notifies the complainant (if any) and the approved provider to which the new resolution process relates, prior to the expiration of the original 46 days, that the time period is to be extended and the reason for the extension.
(3) If the time period is extended under subsection (2), the Secretary must notify the ACC that the time period has been extended and the reason for the extension.
(4) The Secretary must notify the following persons, in writing, that the Secretary is undertaking a new resolution process following a direction by the ACC:
(a) the complainant (if any);
(b) the approved provider;
(c) the ACC.
(5) Before deciding to end the new resolution process under section 13A.13, the Secretary must:
(a) notify the ACC that the Secretary is considering ending the new resolution process and the Secretary’s reasons for considering making that decision; and
(b) take into account any comments given to the Secretary by the ACC within 7 days of the ACC being notified under paragraph (a).
(5A) However, subsection (5) does not apply if the Secretary decides to end a resolution process in the circumstances mentioned in paragraph 13A.13(d).
(6) The Secretary must give the ACC a copy of the feedback given under section 13A.16.
13A.27 Complaints to ACC about process
(1) A person may make a complaint, either orally or in writing, to the ACC about:
(a) the Secretary’s process for handling complaints under these Principles; or
(b) the Quality Agency’s process for accrediting aged care services under the Quality Agency Principles 2013; or
(c) the Quality Agency’s process for conducting the quality review of home care services under the Quality Agency Principles 2013.
(2) The complaint must be made within 12 months from the date of the completion of the process which gave rise to that complaint.
13A.28 ACC’s discretion to examine complaints
(1) Within 14 days of receiving a complaint under section 13A.27, the ACC must:
(a) decide not to examine the complaint on the basis that subsection (2) or (3) applies; or
(b) decide to examine the complaint.
(2) The ACC must refuse to examine a complaint if the ACC is satisfied that the complaint does not relate to a function of the ACC.
(3) The ACC may refuse to examine a complaint if the ACC is satisfied that:
(a) the complaint was not made in good faith; or
(b) the complaint relates to an issue that is, or has been, the subject of a legal proceeding; or
(c) the complaint relates to an issue that is subject to a coronial inquiry; or
(d) the complaint was made by a person that the ACC does not consider has a sufficient interest in the issue; or
(e) having regard to all the circumstances, examination of the complaint is not warranted.
13A.29 Notice of examination
(1) The ACC must, as soon as practicable after making a decision under subsection 13A.28(1), tell the person making the complaint under section 13A.27 of the ACC’s decision to examine or not to examine the complaint.
(2) The ACC must, as soon as practicable after deciding to examine the complaint, give the person or body, against whom the complaint is made, information about the nature and substance of the complaint.
(3) The information mentioned in subsections (1) and (2) must be given in writing.
13A.30 Examination of complaint
(1) The ACC may examine a complaint made under section 13A.27 in the manner that the ACC considers appropriate.
(2) The ACC may at any time decide to take no further action on the basis that, having regard to all the circumstances, examination of the complaint is not warranted.
13A.31 Notification
(1) The ACC must notify the following persons, in writing, of the outcome of the ACC’s examination under section 13A.30:
(a) the person who made the complaint;
(b) the person or body to whom the complaint relates.
(2) The ACC may also notify any other person the ACC considers appropriate.
Part 8—Transitional
13A.33 Examination by ACC
If, immediately before 1 August 2013, the ACC is examining a decision of the Secretary, section 13A.25 as in force on 1 August 2013 applies to the examination.
13A.34 New resolution process
If, immediately before 1 August 2013, the Secretary is undertaking a new resolution process as recommended by the ACC under paragraph 13A.25(2)(b) as in force at that time, the process must be completed within the timeframes set out in section 13A.26 as in force on 1 August 2013.