The Royal Commission into Aged Care Quality and Safety uncovered some serious issues in the aged care sector. Providers have to implement effective whistleblowing and reporting mechanisms to comply with the legislation and execute good governance.

Challenges for the aged care sector

Over the next decades, the aged care sector is going to face a number of challenges. Not only is the population ageing, but there will be greater diversity in their care needs, preferences, and financial situation. A research paper in 2008 found that this will quadruple the number of people (over 85) using aged care services by 2047.

In addition, the Royal Commission into Aged Care Quality and Safety found that:

…with Australia’s population ageing and the demand in aged care significantly increasing over the next years, one of the biggest challenges for the industry continues to be maintaining and improving the quality of care while workforce pressure persists

To assist in the need to maintain and improve the quality of care, on 1 April 2021, the Serious Incident Response Scheme (SIRS) commenced in the aged care sector. SIRS is defined as “a new initiative to help prevent and reduce incidents of abuse and neglect in residential aged care services subsidised by the Australian Government”. It requires approved providers to have an effective incident management system in place that allows providers to report on a range of incidents to the Aged Care Commission.

There are two main obligations for aged care providers:

1. to have effective incident management systems in place; and
2. compulsory reporting obligations.

With the implementation of SIRS, it is now more important than ever for the industry to implement processes and systems to reduce the risk of misconduct in aged care services and maintain the quality of the services.

Royal Commission criticises quality and safety in aged care

The Royal Commission into Aged Care Quality and Safety handed down their final report on 26 February 2021. The Report provides that

Deficiencies in the governance and leadership of some approved providers have resulted in shortfalls in the quality and safety of care.

Further, the findings of the Royal Commission included that:

• substandard care within the sector was more extensive than originally predicted;
• complaint systems are hard to access and even when they can be accessed, those who receive the complaints are often slow to act, do not respond to the complaint and the complainant is often left in the dark; and
• people are unwilling to raise issues or make complaints as they fear it may impact the care that they (or their vulnerable family members) will receive.

These findings illustrate a sector that struggles with one of the most foundational aspects of good governance: the ability to receive reports of wrongdoing and thereafter take appropriate action in respect of the wrongdoing.

Whistleblowing and reporting mechanisms needed

Employee reporting is the single most important method by which wrongdoing in or by organisations is brought to light, found a report by Griffith University, surveying 118 public agencies in 2019.

In addition, in their Report to the Nations, the Association of Certified Fraud Examiners (ACFE) provides that just under 50% of fraud is detected through a tip of some type and that employees and customers account for 72% of individuals who report fraud to an organisation. The ACFE report also found that the median loss of fraud doubled in those organisations that did not have a hotline.

These statistics underline that the starting point for an organisation to be made aware of wrongdoing is through the implementation of complaints or reporting system that allows employees and customers to speak up.

A reporting system needs to go further than the traditional method of reporting wrongdoing to one’s manager. It should include the ability to speak up confidentiality and anonymously. Particularly in the case of aged care providers where those who wish to speak up may not be employees but rather recipients of services (or their family members).

The findings of the Royal Commission highlight that there is a unique need for aged care providers to have reporting systems that allow complaints and issues to be raised in confidence and anonymously by individuals (aside from just employees). The Royal Commission found that customers (or family members) felt uncomfortable raising issues relating to substandard care for fear of reprisal to them or their family members.

Whistleblower legislation in aged care organisations

In 2019 Australia brought into law new legislation that revitalised whistleblowing in the private sector. Some of the new requirements on organisations include:

• not only having a whistleblowing policy but also an adequate whistleblowing program that supports the policy;
• ensuring that the protections, as prescribed by legislation, are afforded to eligible whistleblowers; and
• that staff be trained on the whistleblowing program and policy being implemented by an organisation.

These requirements apply to publicly listed companies and large private organisations, as defined in the Corporations Act.

Some aged care providers may not be bound by the new whistleblower legislation due to the size or structure of the organisation. However, good corporate governance means that all aged care providers should consider and implement speak up (whistleblower) programs that meet, or go further than, the requirements under the whistleblowing legislation.

6 elements of an effective whistleblower program

As eluded to above and highlighted by the findings of the Royal Commission, merely having mechanisms for individuals to speak up does not equate to a successful speak up program. Reporting channels are just one link in the chain.

The focus on the distinctive challenges face in Aged Care is will continue to intensify. Therefore it is crucial from a governance and best practice perspective for organisations to lay the foundation and implement a successful whistleblower program. To achieve an effective program, an organisation needs to make sure that:

1. The correct messaging from leaders regarding the importance of speaking up is communicated to stakeholders (staff, customers, etc.).
2. Staff are educated and trained on the speak up program, including the various channels by which they can speak up and the process that takes place once they speak up.
3. Reports are handled in confidence and anonymous reporting is provided for.
4. Reports, when received, need to be handled consistently.
5. Reporters are engaged throughout the process after a report is made and are provided with appropriate updates on actions taken because of their report.
6. The appropriate senior leader or executive takes ownership and has oversight of the speak up program (tone from the top).

It is just as important that any investigation or inquiry that takes place because of a report received, is conducted objectively, transparently and with due process.

Ineffective mechanisms lead to serious consequences

It only takes a couple of pages of reading the Final Report to understand what some of the consequences can be when individuals either cannot speak up or that those reports, when received, are not handled properly. These consequences can be serious and have lasting damage. Not only do reporters lose faith in the organisation. Serious harm could be continued to be caused to individuals. The reputational damage for the organisation can be immense.

Some tell-tale signs of an ineffective speak up program include:

• reports not being actioned or reporters are not responded to;
• a reporter’s rights and protections are not properly afforded to them;
• there are breaches of confidentiality or anonymity; and
• investigations are not conducted or are ineffectively conducted.

Opportunities for aged care providers

The new focus on Aged Care is an opportunity. Besides many challenges they uncovered, the Royal Commission also found that most employees within the sector are providing the best care they can. This means that those employed in the sector are passionate about what they do. They are invested in seeing the sector succeed.

Providers within aged care need to be aware that not only are people the most important asset in the delivery of services, but also in calling out wrongdoing, including issues of substandard care.

Aged care providers, whether they are required to by law or not, should implement comprehensive speak up programs. Programs that allow employees, customers and their families to speak up through multiple avenues, including traditional channels such as HR or senior staff as well as channels such as speak up hotlines.

But reporting channels are only one piece of the puzzle. Organisations need to implement sound governance in the way reports are assessed, responded to, and actioned. This ensures that reporters have confidence that when they speak up, reports will be properly considered. Confidentiality and anonymity (if applicable) is maintained. Also, the correct messaging from leaders, training of staff and communication to stakeholders will ensure staff and customers are aware of reporting avenues and have confidence in using these avenues.

Implementing an effective speak up program not only brings issues like substandard care to the knowledge of the organisation. It also ensures that the organisation’s reputation and standing in the community is enhanced.

Are you interested in further information and tips on implementing an effective speak up program for your organisation? Contact us to find out how our experience creating safe speak up cultures within the aged care sector can assist your organisation, no matter the size.