John Watson (Tasmania, Liberal Party) Share this | Hansard source

The Minister for Ageing, the Hon. Christopher Pyne MP, has amended the Investigation Principles 2007 to meet the committee’s concern. Therefore, on behalf of the Standing Committee on Regulations and Ordinances, I give notice that, on the next day of sitting, I shall withdraw business of the Senate notice of motion No. 1 standing in my name for the next day of sitting for the disallowance of the Investigation Principles 2007 made under section 96-1(1) of the Aged Care Act 1997. I seek leave to incorporate in Hansard the committee’s correspondence on this instrument.

Leave granted.

The correspondence read as follows—

Investigation Principles 2007

14 June 2007

The Hon Christopher Pyne MP

Minister for Ageing

Suite M1.46

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the Investigation Principles 2007, made under subsection 96-1 (1) of the Aged Care Act 1997. These Principles specify the process that the Secretary to the Department of Health and Ageing must undertake in investigating complaints or information regarding the responsibilities of a residential or community aged care provider.

Subsection 16A.5(3) of these Principles states that an informant may ask the Secretary to the Department of Health and Ageing to keep confidential the identity of the informant, the identity of a person included in the information supplied to the Secretary, or any other details included in the information. Section 16A.9 requires the Secretary to comply with any request for confidentiality except where the Secretary considers that certain criteria are present. The section does not indicate whether the informant is to be notified that the request for confidentiality will not be complied with. The Committee therefore seeks your advice about whether such a requirement should be added to this section.

The Committee would appreciate your advice on the above matter as soon as possible, but before 3 August 2007 , to enable it to finalise its consideration of these Principles. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

25 July 2007

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter of 14 June 2007, on behalf of the Standing Committee on Regulation and Ordinances, regarding the Investigation Principles 2007 (Investigation Principles) made under subsection 96-1(1) of the Aged Care Act 1997.

The Committee has requested further advice on subsection 16A.9 of the Investigation Principles which requires the Secretary of the Department of Health and Ageing to comply with an informant’s request to keep his or her identity or other details confidential, except where the Secretary considers that certain criteria are present. The Investigation Principles do not indicate whether the informant is to be notified that a request for confidentially will not be complied with.

As a matter of procedure, the Department will attempt to contact the informant, where possible, to notify him or her if a request for confidentially will not be complied with. A specific requirement for the Secretary to contact the informant was not included in the Investigation Principles as it would limit the capacity of the Secretary to act immediately in circumstances where the health, safety or wellbeing of the informant or care recipient may be at risk. In such circumstances, the Department will notify the informant of the Secretary’s actions.

I trust that this information is of assistance.

Yours sincerely

Christopher Pyne MP

Minister for Ageing

9 August 2007

The Hon Christopher Pyne MP

Minister for Ageing

Suite M1.46

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 25 July 2007 responding to the Committee’s concerns with the Investigation Principles 2007 made under subsection 96-1(1) of the Aged Care Act 1997.

In your response you advise that the Department will attempt to contact an informant, where possible, to notify him or her if a request for confidentiality will be not complied with. The Committee is concerned that no details have been provided on what would constitute an attempt to contact an informant.

You further advise that a specific requirement to contact the informant was not included in the Principles as it would limit the capacity of the Secretary to act immediately where circumstances required. While the Committee acknowledges the need for urgent action in some situations, it suggests that this might be addressed by including a requirement that the Secretary will make all reasonable efforts to contact the informant in the circumstances.

As a precautionary measure, the Committee has agreed to give a notice of motion to disallow these Principles on 15 August 2007 (the last day on which a notice may be given) to allow time for further correspondence on these matters.

In the meantime, the Committee would appreciate your advice on the above matters as soon as possible, but before 31 August 2007 , to enable it to finalise its consideration of these Principles. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

13 August 2007

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter of 9 August 2007, on behalf of the Standing Committee on Regulation and Ordinances, regarding the Investigation Principles 2007 (Investigation Principles), made under subsection 96-1(1) of the Aged Care Act 1997.

Your letter was sent in response to my letter of 25 July 2007 responding to the Committee’s comments in relation to subsection 16A.9 of the Investigation Principles. This section provides that if a person gives information to the Aged Care Complaints Investigation Scheme (the Scheme) on a confidential basis then the Secretary to the Department of Health and Ageing (the Department) must keep such information confidential unless it will harm an investigation or otherwise pose risks to the informant or care recipient.

Where information is provided in confidence to the Scheme it is critical to the integrity of the complaints process that the confidentiality of the information is maintained as far as possible. However, it is equally recognised that there may be circumstances in which the informant, care recipient or others may face harm if the Scheme fails to release information to, for example, the approved provider, police or other investigating bodies. The most appropriate response by the Scheme will vary according to the particular case in question.

Given the difficulty of prescribing a ‘one size fits all’ approach in legislation, detailed guidelines have been developed on this issue. I have attached for your information a copy of an extract from the Scheme’s procedures manual (Attachment A). This manual is used by all officers that conduct investigations under the Scheme. This extract outlines the procedures that staff must follow when investigating confidential complaints, situations in which these confidential details would be disclosed and the process to follow when it is necessary to disclose confidential information.

If the Committee considers that, in addition to the information included in the manual, it would be useful to include further detail in the Principles, an amendment could be made to the Principles. This could expressly provide that the Secretary must make a reasonable attempt to advise the informant that the Secretary intends to use information given by the informant other than in accordance with the informant’s request for confidentiality. This power would continue to be limited to circumstances where the Secretary considers that complying with the request for confidentially will harm the investigation, place the safety, health or wellbeing of the informant or care recipient at risk or place the informant or a care recipient at risk of intimidation or harassment.

If the Committee believes there would be some merit in having the Department provide an additional oral briefing on this matter, I would be happy to arrange this.

I trust that this information is of assistance and look forward to the Committee’s response.

Yours sincerely

Christopher Pyne MP

Minister for Ageing

Attachment A

2.3.3 Open, Anonymous or Confidential Information

Information can be provided on an open, confidential or anonymous basis.

Open

In general all information and details provided on an open basis can be released to other relevant people to the case. There may, however, be some restrictions to the exchange of information if any of the relevant people request that some part of the information that they have provided is not released to the other people.

Confidential

When information is provided on a confidential basis, the identity and contact details of the informant are known to the Scheme. However, these details are not passed on to the approved provider or any other person involved in the case without the agreement of the informant.

You will need to advise a confidential informant that if they provide information confidentially, it may limit the scope of any investigation that the Scheme undertakes - for example, it may be difficult to investigate concerns in relation to an individual where the care recipient’s details are confidential. Providing confidential information still allows for the Scheme to keep the informant updated on the progress of the case.

Anonymous

When information is provided on an anonymous basis, the identity and contact details of the informant will not be known to the Scheme. You will need to remind the informant that if they provide information anonymously, then no further contact can be made with them by the Scheme. Providing information anonymously may also limit the scope of any investigation that the Scheme undertakes e.g. it may be difficult to investigate concerns in relation to an individual where the care recipient’s details are anonymous.

If the informant wishes to be kept updated on the progress of the case then they may wish to consider providing information on a confidential or open basis.

2.3.4 Maintaining Confidentiality

Section 16A.5 (3) of the Investigation Principles sets out the rights of persons contacting the Scheme to request confidentiality in relation to certain information. As such, all possible measures should be taken to ensure the confidentiality of care recipient/informant details when confidentiality has been requested. In order to the maintain confidentiality of the care recipient the following points must be considered:

• When conducting a site visit:
• request to view the files of several care recipients (e.g. look at the files for the confidential care recipient and four others)
• interview several care recipients (e.g. the care recipient in question and several others)
• ensure any paperwork containing the care recipient’s details is secure at all times (e.g. carry paperwork in a document holder, do not leave paperwork unattended).
• If it becomes evident that the service provider may attempt to identify who the care recipient/informant is, notify the informant (e.g. the confidential care recipient is identifiable as the only person in the home with a particular condition).
• If you are concerned about a matter relating to confidentiality speak to your manager.

2.3.5 Disclosing Confidential Details

Under section 16A.9 of the Investigation Principles the Secretary must ensure that any request for confidentiality under subsection 16A.5 (3) is complied with unless the Secretary considers that doing so will, or is likely to:

a)     harm the investigation; or

b)    place the safety, health or well-being of the informant or a care recipient at risk; or

c)     place the informant or a care recipient at risk of intimidation or harassment.

It is anticipated that this provision would only be used in a very limited number of cases.

When you are investigating a confidential case you will need to consider:

• whether the investigation can be completed without releasing the    confidential details
• the severity and urgency of the issue/s
• whether the issue/s affect only the confidential care recipient (or are other care recipients affected).

Minor Issues that affect only the Confidential Care Recipient

Steps 1-5 below must be followed if you are investigating a case and you determine:

• that you cannot complete the investigation without disclosing confidential details
• the issues in the case are minor (i.e. they do not affect the care needs of the care recipient)
• the issues only relate to the confidential care recipient

1.

All possible attempts should be made to contact the informant to advise them that you can not complete the investigation without disclosing confidential information.

2.

Any attempts to contact the informant (whether successful or not) should be recorded in a file note in the IMS.

3.

If unsuccessful, more than one attempt must be made to contact the informant. The Investigation Officer should:

• use all contact numbers supplied
• contact the informant during the hours they have indicated that they are available
• contact the informant by mail if they cannot be contacted by phone.

4.

If the informant can not be contacted or they do not agree to the disclosure of confidential information you should finalise the case. This decision should be made in consultation with your manager.

Scenario: An informant calls you to tell you that their mother’s favourite cardigan has been put in the dryer at XYZ home and has shrunk. The informant indicates that she wishes her mother’s details to remain confidential.

Action: You are unable to progress the case without revealing the identity of the care recipient. The informant does not agree to the disclosure of this information. The case is finalised.

Major Issues that affect the Confidential Care Recipient and/or other Care Recipients

Steps 1-5 below must be followed if you are investigating a case and you determine:

• that you cannot complete the investigation without disclosing confidential details
• the issues in the case are major (i.e. they affect the care needs of the care recipient)
• the issues relate to the confidential care recipient and/or other care recipients

1.

All possible attempts should be made to contact the informant to advise them that you can not complete the investigation without disclosing confidential information.

2.

Any attempts to contact the informant (whether successful or not) should be recorded in a file note in the IMS.

3.

If unsuccessful, more than one attempt must be made to contact the informant. The Investigation Officer should:

• use all contact numbers supplied
• contact the informant during the hours they have indicated that they are available
• contact the informant by mail if they cannot be contacted by phone.

4.

If the informant can not be contacted or they do not agree to the disclosure of confidential information you should consider disclosing the confidential information. This decision should be made in consultation with your manager and approved by the Assistant State Manager.

5.

The decision to disclose confidential information and the details of the subsequent disclosure should be recorded in a file note in the IMS.

6.

If you were unsuccessful in contacting the informant prior to making a disclosure, you should attempt to contact them again following the disclosure.

Scenario: An informant calls to tell you that they have just visited their mother after an absence and are concerned that she has lost a lot of weight and doesn't seem to be being fed properly. They do not want the home to know they have called as they fear this may affect her care further.

On investigation you find that, as described by the informant, the mother is not being fed properly and is losing weight. However she is the only care recipient in the home affected by this.

Action: Contact the informant and encourage them to allow you to disclose the care recipient’s details to the home to ensure their mother receives appropriate care. If after repeated attempts to contact the informant you are unsuccessful then you will need to consider providing the care recipient’s details to the home even though this many not accord with the wishes of the informant. This decision should be made in consultation with your manager. If you determine that the care recipient’s details should be disclosed, then you should again attempt to contact the informant to advise them that you have disclosed their mother’s details to the home.

Urgent Issues that affect the Confidential Care Recipient and/or other Care Recipients

Steps 1-3 below must be followed if you are investigating a case and you determine:

• that you cannot complete the investigation without disclosing confidential details
• the issues in the case are critical (i.e. there is immediate risk to the health, safety and/or well-being of the care recipient)
• the issues relate to the confidential care recipient and/or other care recipients.

1.

Attempt to contact the informant. If you are unable to contact the informant before information is disclosed to the relevant authorities, attempt to contact the informant immediately after.

2.

The information should be disclosed to the home and the relevant authorities. This decision should be made in consultation with your manager and approved by the Assistant State Manager.

3.

The decision to disclose confidential information and the details of the subsequent disclosure should be recorded in a file note in the IMS.

Scenario: An informant calls to tell you that they are unhappy with the care provided to their mother at XYZ nursing home. The informant indicates that their husband has gone out to the home with the intention of confronting the operator of the home with a gun to get them to do something about the care being provided. The informant requests that you don’t tell the home who they are. You discuss the situation with the informant explaining that you are required to disclose this information to the relevant authorities.

Action: In order to protect the safety of the staff and residents of the home you will need to provide the informant’s details to the home and the police.

16 August 2007

The Hon Christopher Pyne MP

Minister for Ageing

Suite M1.46

Parliament House

CANBERRA ACT 2600

Dear Minister

Thank you for your letter of 13 August 2007 in which you provide further information on the manner in which information provided in confidence to the Aged Care Complaints Investigation Scheme may be disclosed.

In your response you advise that it is difficult to prescribe a ‘one size fits all’ approach in legislation that would cover all circumstances and that detailed guidelines have been developed to assist departmental officers to make decisions on a case by case basis. The Committee appreciates receiving a copy of the guidelines that relate specifically to the manner in which confidential information may be disclosed. This information was of great assistance to the Committee’s deliberations.

The Committee recognises that legislation cannot cover all situations but remains concerned that there is no requirement to make every effort to contact the informant before the information is disclosed. In your response you offer to amend the Principles to expressly provide for the Secretary to make ‘a reasonable attempt’ to advise the informant. The Committee welcomes your offer but suggests that the amendment should require the Secretary to make ‘all possible attempts’ to advise the informant in keeping with the wording contained in the departmental guidelines.

The Committee would therefore appreciate receiving a specific undertaking to amend the Principles along those lines.

As advised in our letter of 9 August 2007, a notice of motion to disallow these Principles was given on Wednesday, 15 August 2007 to provide further time for consideration. The Committee would appreciate your advice on the above matter as soon as possible, but before 10 September 2007 , to enable it to finalise its consideration of these Principles and to withdraw its notice of disallowance. Correspondence should be directed to the Chairman, Senate Standing Committee on Regulations and Ordinances, Room SG49, Parliament House, Canberra.

Yours sincerely

John Watson

Chairman

4 September 2007

Senator John Watson

Chairman

Senate Standing Committee on Regulations and Ordinances

Room SG49

Parliament House

CANBERRA ACT 2600

Dear Senator Watson

Thank you for your letter of 16 August 2007 regarding the Investigation Principles 2007 (Investigation Principles), made under subsection 96-1(1) of the Aged Care Act 1997.

Consistent with the Committee’s request to amend the Investigation Principles to require the Secretary to make ‘all possible attempts’ to advise the informant, before releasing confidential information that has been provided to the Aged Care Complaints Investigation Scheme (CIS) by the informant, I am proposing to amend the Investigation Principles and have included for your information a copy of the proposed amendments at Attachment A. [attachment not incorporated]

As you will note, the amendment requires the Secretary to make ‘all reasonable attempts’ to contact the informant before releasing information which could identify the informant or care recipient. This wording has been developed on the advice of the Office of Legislative Drafting and Publishing (OLDP). The OLDP advised that it would not be appropriate to use the wording ‘make all possible attempts’ as the effect of this could be to frustrate the release of information unless the person could actually be contacted. It could be argued that a requirement to ‘make all possible attempts’ is unreasonable as there is no objective test for when sufficient attempts to contact the informant have been made. I note that the words ‘all possible attempts’ were inappropriately used in the guidelines for the CIS and it is proposed that this be amended to align with the amendment at Attachment A.

I trust that this information is of assistance and look forward to the Committee’s response.

Yours sincerely

Christopher Pyne MP

Minister for Ageing