The preliminary hearing of the Royal Commission into Aged Care Quality and Safety was held at 10 am (ACDT) Friday 18 January 2019 in Adelaide. The hearing commenced with the reading of the letters patent. This was followed by an address by each of the Commissioners, the Honourable Richard Tracey AM RFD QC and Ms Lynelle Briggs AO. Both Commissioners spoke to the objectives of the Royal Commission and the approach that will be taken by the Royal Commission to strengthen and improve aged care services in Australia. Senior Counsels Assisting, Mr Peter Gray QC and Dr Timothy McEvoy QC, then provided an overview of the progress of the Royal Commission to date, as well as the plan for the Royal Commission moving forward. Following the address by Counsels Assisting, the Royal Commission was adjourned.

Key points for providers arising from the preliminary hearing are identified below.

Focus of the Royal Commission

The Commissioners indicated that the themes of the Royal Commission will include the future direction of the aged care sector and the provision of sustainable, high quality and accessible services. However, with Commissioner Briggs identifying the “rising torrent of concern that the aged care system is faltering in certain areas of safety and quality”, there will clearly also be a focus on past failings.

As expected, Counsel Assisting identified that the public hearings would include witness testimony relating to case studies of substandard care. However, it appears that the focus of such testimony will not only be to bear witness, but to enable change, with Commissioner Tracey resolutely stating that the Royal Commission is providing the nation with a “once in a lifetime opportunity to come together as a nation to consider how we can create a better system of care for elderly Australians.”

Submissions received to date

The Commissioners indicated that the direction of the Royal Commission will be in part guided by the submissions received from industry, regulators and the public. If this is correct, there is likely to be a substantial focus on residential aged care, with Counsel Assisting advising that of the 300 submissions received from the public to date, 81% are concerned with the provision of care in a residential facility. Staffing will also feature highly with 59% of public submissions received to date raising staffing issues, including staff ratios, as a concern.

In terms of submissions received from providers, Counsel Assisting advised that of the 100 largest providers who were invited in late November 2018 to make submissions, 83 responses have been received to date. While some providers no doubt found the provision of a response challenging given the time frame, Commissioner Briggs identified that short response times for requests will be a feature of the Royal Commission due the tight deadline for the interim report (due 31 October 2019) and final report (due 30 April 2020). With Commissioner Briggs indicating that providers who do not engage with the Royal Commission likely to draw attention to their practices, it will remain to be seen if the number of provider responses increases as we move further into January.

The choice to respond voluntarily may also be taken out of provider’s hands with Counsel Assisting indicating that the Royal Commission will be exercising its new powers to require a person to give information or a statement in writing.

Public hearings

Counsel Assisting indicated that public hearings will be held in each capital city and in some regional centres, with an emphasis on the public’s experience of aged care services. The scope and purpose of the public hearings will be published on the Royal Commission website prior to the hearings. Counsel Assisting also indicated that the first substantive hearing, held on 11 February 2019 in Adelaide, will focus on providing an overview of the aged care quality, safety and complaints system, as it presently operates and how it works in practice. We are aware that a number of representatives of industry peak bodies have been invited to appear and provide statements at the first substantive hearing.

Counsel Assisting also referred to the Practice Guidelines which have been published on the Royal Commission website. The Practice Guidelines include guidance directed to those involved in the Royal Commission regarding confidentiality, legal professional privilege, leave to appear at the hearing, the tendering of documents and the production of documents.