COVID-19 Update

Aged care services and coronavirus – does the buck stop with the board?

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In 2019 we covered the then imminent introduction of the Aged Care Quality Standards (Standards), as contained within the Quality of Care Amendment (Single Quality Framework) Principles 2018.

Those Standards, which took effect from 1 July 2019, raised the legal accountability of governing bodies and operators in the aged care industry. At the time we asked the question – does the new Aged Care Quality Standard 8 create a new liability for directors? Our answer then, as it remains now, was yes!

Given, the recent prevalence of coronavirus cases in Australian aged care facilities, a reminder of the board’s responsibilities under Standard 8 is perhaps timely.

Standard 8 provides an ‘Organisation Statement’ for aged care providers in which ‘[t]he organisation’s governing body is accountable for the delivery of safe and quality services.’

When providing clinical care to a consumer, the Standard more specifically requires ‘antimicrobial stewardship’. While the obligation of ‘antimicrobial stewardship’ is couched in the terms of clinical care, it is an indication of the kind of matters the governing body must directly account for overseeing operation of the aged care provider. Standard 8 clarifies that the board cannot avoid responsibility for matters such as antimicrobial stewardship.

Under Standard 8, the board of an aged care provider became responsible to that organizational governance systems facilitated continuous improvement and regulatory compliance. Similarly, the board is rendered directly responsible for ensuring the enactment of effective risk management systems to manage high-impact or high prevalence risks associated with the care of consumers.

The coronavirus pandemic has highlighted the accountability of the board to ensure organizational processes and practices allow the organisation to promptly identify and respond to high-level risks such as those currently presented by COVID-19.

The further implication is that, where an aged care facility has failed to effectively respond to a high-level risk such as that of COVID-19, does this demonstrate a failure of governance? The answer to that question likely lies in a case by case analysis of business operations and processes as implemented from the board down. However, what is clear is that the governing body of an aged care facility must take a pro-active approach to risk management, in which new risks are promptly accounted for to ensure continuous improvement toward ‘best practice’ across the industry.

Contact us to inquire about your corporate responsibilities during COVID-19.

Contact FAL Lawyers for all enquiries