Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AGED CARE AMENDMENT (AGED CARE RECIPIENT CLASSIFICATION)
BILL 2020
REVISED EXPLANATORY MEMORANDUM
This revised explanatory memorandum responds to concerns raised by the Senate
Scrutiny of Bills Committee in Scrutiny Digest No.15 of 2020, dated
11 November 2020, and in Scrutiny Digest No. 17 of 2020, dated 2 December 2020
(Circulated by authority of the Minister for Aged Care and Senior Australians,
Senator the Hon Richard Colbeck)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE
HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
OUTLINE
The Aged Care Amendment (Aged Care Recipient Classification) Bill 2020 (the Bill)
amends the Aged Care Act 1997 (the Act) to introduce an additional, discretionary
procedure for classification of recipients of residential aged care and some kinds of
flexible care.
The Australian Government is proposing a new residential aged care recipient
classification system, the Australian National Aged Care Classification developed by
the University of Wollongong, to replace the outdated Aged Care Funding Instrument
classification system.
The amendments will allow for the introduction of a new classification system
focused on independently determining the care needs of older Australians accessing
residential aged care and some types of flexible care.
This classification system is an important step in the reform process, which will
demonstrate what the Australian National Aged Care Classification will do in practice
and will inform residential aged care funding reform.
Currently, before the Commonwealth can pay a subsidy to an approved provider of
aged care for providing care to a care recipient, a number of approvals and similar
decisions may need to have been made. In relation to care recipients, the care
recipient must (in most cases) be approved in respect of the type of aged care
provided (see Part 2.3 of the Act). In the case of residential care or flexible care, the
care recipient must be classified in respect of the level of care that is required (see
Part 2.4 of the Act).
The Bill's effect is to allow the Secretary of the Department of Health (Secretary) or
delegate to assess care recipients using an alternative procedure for classification to
that prescribed by the existing Part 2.4 of the Act.
The Bill inserts a new Part 2.4A ('Classification of care recipients on Secretary's
initiative') to empower the Secretary to assess, at their own initiative, the relative care
needs of care recipients using a new assessment tool. This will enable the Secretary to
classify care recipients into new classification levels based on the assessment results.
The Bill will also make consequential amendments to other parts of the Act to enable
the Secretary to exercise the powers in Part 2.4A.
The existing mandatory procedure for classification of care recipients in Part 2.4 of
the Act, and its role in determining residential care subsidy and the fees providers may
charge care recipients, will continue to operate.
These amendments allow a new classification using the Australian National Aged
Care Classification tool to be determined for the entire residential aged care
population from 1 March 2021, without affecting how subsidy for providers is
calculated.
Financial Impact Statement
The Bill has no financial impact.
1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Aged Care Amendment (Aged Care Recipient Classification) Bill 2020 (the Bill)
amends the Aged Care Act 1997 (the Act) to introduce an additional, discretionary
procedure for classification of recipients of residential aged care and some kinds of
flexible care.
Currently, before the Commonwealth can pay a subsidy to an approved provider of
aged care for providing care to a care recipient, a number of approvals and similar
decisions may need to have been made. In relation to care recipients, the care
recipient must (in most cases) be approved in respect of the type of aged care
provided (see Part 2.3 of the Act). In the case of residential care or flexible care, the
care recipient must be classified in respect of the level of care that is required (see
Part 2.4 of the Act).
The Bill's effect is to allow the Secretary of the Department of Health (Secretary) or
delegate to assess care recipients using an alternative procedure for classification to
that prescribed by the existing Part 2.4 of the Act.
The Bill inserts a new Part 2.4A ('Classification of care recipients on Secretary's
initiative') to empower the Secretary to assess, at their own initiative, the relative care
needs of care recipients using a new assessment tool. This will enable the Secretary to
classify care recipients into new classification levels based on the assessment results.
The Bill will also make consequential amendments to other parts of the Act to enable
the Secretary to exercise the powers in Part 2.4A.
The existing mandatory procedure for classification of care recipients in Part 2.4 of
the Act, and its role in determining residential care subsidy and the fees providers may
charge care recipients, will continue to operate.
These amendments allow a new classification using the Australian National Aged
Care Classification tool to be determined for the entire residential aged care
population from 1 March 2021, without affecting how subsidy for providers is
calculated.
Human rights implications
The Bill engages the following human rights as contained in article 11 and article
12(1) of the International Convention on Economic, Social and Cultural
Rights (ICESCR) and articles 25 and 28 of the Convention of the Rights of Persons
with Disabilities (CRPD):
the right to an adequate standard of living, including with respect to food, clothing
and housing, and to the continuous improvement of living conditions; and
the right to the enjoyment of the highest attainable standard of physical and mental
health.
2
The UN Committee on Economic Social and Cultural Rights (the Committee) has
stated that the right to health is not a right for each individual to be healthy, but is a
right to a system of health protection which provides equality of opportunity for
people to enjoy the highest attainable level of health.
The new scheme for the classification of care recipients will more accurately classify
care recipients and in doing so, better target the level of care required to meet their
needs. This is because the assessment process to classify a care recipient will utilise
updated methods to determine the level of a care recipient's functioning.
As such, the new classification scheme aims to enhance the standard of living that
care recipients in residential aged care services.
Conclusion
The Bill is compatible with human rights as it promotes the human right to an
adequate standard of living and the highest attainable standard of physical and mental
health.
Senator the Hon Richard Colbeck, Minister for Aged Care and Senior
Australians
3
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides that the short title of this Act is the Aged Care Amendment (Aged
Care Recipient Classification) Act 2020.
Clause 2 - Commencement
Clause 2 provides for this Act to commence on the later of 1 March 2021 or the day
after this Act receives the Royal Assent.
Clause 3 - Schedules
Clause 3 provides that legislation specified in a Schedule is amended or repealed as
set out in the applicable items in that Schedule, and any other item in a Schedule to
this Act has effect according to its terms.
SCHEDULE 1 -- AMENDMENT OF THE AGED CARE ACT 1997
Item 1 - Section 5-1
This item amends section 5-1 of the Act to provide for a description of new Part 2.4A
of the Act, allowing for classification of recipients of residential care and some kinds
of flexible care on the initiative of the Secretary of the Department of Health (the
Secretary).
Item 2 - Paragraph 16-11(2)(a)
This item amends paragraph 16-11(2)(a) to provide that the records an approved
provider transferring allocated places must provide to the approved provider receiving
those places must include the assessment and classification records held by the
transferor in relation to those care recipients to which the places being transferred
relate.
This item clarifies that the transferor's responsibilities apply to the relevant
assessment and classification records it holds, and not to assessment and classification
records held by others, which may include records held by the Secretary in exercising
the powers and functions provided for by new Part 2.4A of the Act.
Item 3 - After Part 2.4
This item inserts new Part 2.4A of the Act, which sets out the new scheme to classify
care recipients on the Secretary's own initiative, to operate in parallel with an existing
scheme to classify care recipients in Part 2.4 of the Act.
This item mirrors the legislative approach in Part 2.4 of the Act, with the enabling
provisions for the new scheme in the Act supported by more detailed provisions in the
Classification Principles. It is appropriate for the Classification Principles to contain
the detail so that the Government can be responsive to issues that may arise and, if
necessary, make adjustment in a timely manner once the legislation is in effect.
Additionally, the approach ensures consistency between closely related Parts of the
Act and ensures the detail of assessment and classification procedures under both
Part 2.4A and Part 2.4 are published side-by-side in the Classification Principles.
4
Division 29B
New Division 29B of the Act sets out the introductory provisions of new Part 2.4A of
the Act.
New section 29B-1 sets out what the Part is about, and provides that, on the
Secretary's initiative, the Secretary may classify care recipients approved under
Part 2.3 for residential care, or for some kinds of flexible care, according to the level
of care they need. The effect of a classification under this Part is limited (see new
section 29F-1). A note to the section provides that care recipients who are approved
under Part 2.3 for home care only are not classified under this Part.
New section 29B-2 provides that the classification of care recipients under this Part is
also dealt with in the Classification Principles, and that the provisions in Part 2.4A
indicate when a particular matter is or may be dealt with in the Classification
Principles.
Division 29C
New Division 29C of the Act sets out the provisions which determine how care
recipients are classified.
New section 29C-1 provides that the Division applies in relation to care recipients
who are approved under Part 2.3 for residential care and care recipients who are
approved under Part 2.3 for flexible care, and whose flexible care is of a kind
specified in the Classification Principles. A note to new section 29C-1 provides that
the Classification Principles may exclude a class of care recipients from classification
under Part 2.4A, see new section 29C-6.
New section 29C-2 provides that the Secretary may classify a care recipient for respite
care or non-respite care (see item 14 of the Bill which defines this term) (referred to
as the 'relevant kind of care') according to the level of care the care recipient needs,
relative to the needs of other care recipients, if there is no classification of the care
recipient for the relevant kind of care under this Part, or the Secretary decides to
reclassify the care recipient for the relevant kind of care under this Part (see new
section 29D-1).
However, the Secretary must not classify the care recipient unless the level of care
needed by the care recipient, relative to the needs of other care recipients, has been
assessed under new section 29C-3 for the purposes of making the classification.
The classification must specify the appropriate classification level for the care
recipient for the relevant kind of care (see new section 29C-5). New
subsection 29C-2(3) provides that the Classification Principles may specify methods
or procedures that the Secretary must follow in determining the appropriate
classification level for the care recipient.
In classifying the care recipient, the Secretary must take into account the assessment
of the care needs of the care recipient mentioned in subsection 29C-2(2) and any other
matters specified in the Classification Principles.
Where the Secretary has classified a care recipient under this section, the Secretary
must notify the care recipient, and any approved provider that is providing care to the
care recipient, of the following in writing:
whether the classification is for respite care or non-respite care;
the classification of the care recipient;
5
the day the classification takes effect;
if the classification of the care recipient is a reclassification (see new
section 29D-1)--that it is a reclassification.
New subsection 29C-2(6) provides that the classification takes effect on the day
specified in the Classification Principles. New subsection 29C-2(7) states, for the
purposes of subsection (6), the Classification Principles may specify a day before the
classification was made, so long as the day is not before the commencement of this
Part
New section 29C-3 states that while a care recipient is being provided with respite
care or non-respite care (the relevant kind of care), the Secretary may assess the level
of care needed by the care recipient, relative to the needs of other care recipients, for
the purpose of classifying (including reclassifying) the care recipient under this Part
for the relevant kind of care and deciding whether to reclassify the care recipient
under this Part for the relevant kind of care (see new section 29D-1).
This section provides that the Classification Principles may specify procedures that
the Secretary must follow in making the assessment. If the approval of a care recipient
under Part 2.3 covers the provision of respite care and the circumstances specified in
the Classification Principles apply:
an assessment of the care recipient's care needs made under section 22-4 for the
purposes of the approval is taken to be an assessment of the level of care needed
by the care recipient under this section; and
the assessment is taken to have been made for the purposes of classifying (or
reclassifying) the care recipient under this Part for respite care.
New section 29C-4 provides that a classification of a care recipient under this Part for
respite care, and a classification of the care recipient under this Part for non-respite
care, may both be in effect at the same time.
New section 29C-5 states that the Classification Principles may set out the
classification levels for classifications of care recipients under this Part. The
Classification Principles may also set out different classification levels for
classifications for respite care and classifications for non-respite care. Further, the
Classification Principles may specify the criteria, in respect of each classification
level, for determining which level applies to a care recipient.
New section 29C-6 provides that the Classification Principles may exclude a class of
care recipients from classification under this Part. A care recipient who is in such a
class cannot be classified under this Part for the period specified in the Classification
Principles in relation to that class. However, a classification of a care recipient under
this Part does not cease merely because, the care recipient becomes excluded from
classification under this Part.
New section 29C-7 states that a classification of a person under this Part is not in
effect if the person has ceased to be a care recipient in relation to whom this Division
applies (see new section 29C-1). However, if the person becomes such a care recipient
again at a time, the classification continues from that time
New section 29C-8 provides that the Secretary may arrange for the use, under the
Secretary's control, of computer programs for making decisions on the classification
of care recipients under section 29C-2. This provision provides that a decision made
by the operation of a computer program under such an arrangement is taken to be a
decision made by the Secretary.
6
New section 29C-8 also provides that the Secretary may, under section 29C-2,
substitute a decision for a decision the Secretary is taken to have made if the Secretary
is satisfied that the decision made by the operation of the computer program is
incorrect. This does not limit any other provision of this Act that provides for the
review or reconsideration of a decision.
New section 29C-8 is consistent with the principles and guidance set out in the
Administrative Review Council's 2004 report Automated Assistance in Administrative
Decision Making for the following reasons:
New section 29C-2 and the Classification Principles made under the Act will
detail factors that the decision-maker must take into account in classifying care
recipients.
These factors include using as inputs diverse and unbiased datasets, as collected
by the Secretary or delegate under new section 29C-3, that do not treat persons
differently based on age or any other protected attributes such as disability.
Given the nature of the factors, a computer program can be programmed to apply
the requirements of the Act in a logical manner, as opposed to a decision that
requires an inherently human weighing of factors - for example, a public interest
test.
New section 29C-8(3) and Part 6.1 of the Act provide mechanisms to substitute
and review a decision made with a computer program in a particular matter, if the
computer program malfunctions or makes an erroneous decision.
The factors to be taken into account in classifying care recipients will be those set out
in the Resource Utilisation and Classification Study (RUCS) reports produced by the
University of Wollongong, available at time of publication of this explanatory
memorandum at: https://www.health.gov.au/resources/publications/resource-
utilisation-and-classification-study-rucs-reports.
The computer program proposed for the purposes of this section is a decision rule that
is based on statistical regression analysis published in the RUCS research reports. The
computerised algorithm deriving from this decision rule will translate the results of an
assessment, undertaken by a delegate of the Secretary, to place a care recipient into
one of the 13 Australian National Aged Care Classification classes (to be set out in the
Classification Principles, see section 29C-5). The Secretary will then approve the
recommended classification in order for the classification to take effect.
The classification procedure set out above is considered an objective assessment of a
care recipient's needs, being based on clearly defined criteria and quantifiable factors
and scores.
Division 29D
New Division 29D sets out the provisions relating to how care recipients are
reclassified for the purposes of new Part 2.4A.
New section 29D-1 provides that the Secretary may reclassify a care recipient under
new section 29C-2 for respite care or non-respite care if an approved provider that is
providing that kind of care to the care recipient requests, in writing, that the Secretary
reclassify the care recipient. A note provides that a decision not to reclassify a care
recipient is reviewable under Part 6.1 of the Act.
7
The Secretary must not reclassify the care recipient unless the Secretary is satisfied
that the care needs of the care recipient have changed significantly. A note provides
that the Secretary may assess the care needs of the care recipient for the purposes of
deciding whether to reclassify the care recipient (see new paragraph 29C-3(1)(b)).
New section 29D-1 provides that the Classification Principles may specify the
circumstances in which the care needs of the care recipient are taken to have changed
significantly.
If the Secretary decides not to reclassify the care recipient, the Secretary must notify
the care recipient and the approved provider of the decision in writing. A note
provides that the notice requirements if the Secretary decides to reclassify the care
recipient are set out in new subsection 29C-2(5).
Division 29E
New Division 29E sets out the provisions relating to how classifications are changed.
New section 29E-1 provides that the Secretary must change a classification of a care
recipient under Part 2.4A if the Secretary is satisfied that:
the assessment of the level of care needed by the care recipient, relative to the
needs of other care recipients, that was made for the purposes of the classification
(see new section 29C-3) was incorrect or inaccurate; or
the classification was, for any other reason, incorrect.
A note provides that changes of classifications are reviewable under Part 6.1 of the
Act.
The classification cannot be changed under this new section in any other
circumstances. However, the Secretary may reclassify the care recipient in certain
circumstances (see new section 29D-1).
8
Before changing the classification, the Secretary must review it, having regard to the
following:
any material on which the classification was based that the Secretary considers
relevant; and
any matters specified in the Classification Principles as matters to which the
Secretary must have regard; and
any other material or information that the Secretary considers relevant (including
material or information that has become available since the classification was
made).
If the Secretary changes the classification, the change takes effect on the same day
that the classification took effect (see new subsection 29C-2(6)) and the Secretary
must notify the care recipient, and any approved provider that is providing care to the
care recipient, in writing, of the change.
Division 29F
New Division 29F sets out the provisions relating to the limited effect of
classifications under new Part 2.4A.
New section 29F-1 provides that this new section applies to a classification of a care
recipient under new Part 2.4A, and the classification level to which a care recipient
has been classified under this Part.
Under new section 29F-1, and unless expressly provided otherwise, the classification
or classification level does not have effect, and is not to be treated as a classification
or classification level of the care recipient, for the purposes of the following:
the Act, other than:
o paragraph 16-11(2)(a) of the Act (which deals with the transfer of certain
records); and
o new Part 2.4A;
the Aged Care (Transitional Provisions) Act 1997;
any legislative instrument made under the Act, other than Classification Principles
made for the purposes of a provision of new Part 2.4A;
any legislative instrument made under the Aged Care (Transitional Provisions)
Act 1997;
any other law of the Commonwealth.
This provision outlines the limited effect of classifications under this Part.
Accordingly, the classification level cannot affect any amount of subsidy payable
under Chapter 3 of the Act or Chapter 3 of the Aged Care (Transitional Provisions)
Act 1997, or any amount that an approved provider may charge the care recipient for
the provision of care and services.
Item 4 - Before paragraph 63-1(1)(i)
This item inserts new paragraph 63-1(1)(ha) into the Act. New paragraph 63-1(1)(ha)
provides it is a responsibility of an approved provider to allow delegates of the
Secretary access to the service (as required under the Accountability Principles) to
assess the care needs of care recipients provided with care through the service for the
purposes of new Part 2.4A of the Act.
9
Item 5 - Section 85-1 (after table item 31)
This item amends section 85-1 of the Act, which sets out the decisions made under the
Act which are considered reviewable decisions, to insert new table items 32, 32A and
32B. New table items 32, 32A and 32B provide that a decision of the Secretary made
under Part 2.4A of the Act to classify a care recipient, to refuse to reclassify a care
recipient, or to change the classification of care recipient, is reviewable.
This item reflects that decisions made under Part 2.4A follow from the Secretary,
rather than another person such as an approved provider, gathering all preliminary
information to inform the Secretary to make these decisions, and that it is therefore
consistent with the principle that an administrative decision that is likely to affect the
rights and interests of a person should be reviewable on its merits.
Item 6 - Subsections 85-5(4A) and 85-6(1)
This item amends subsections 85-5(4A) and 85-6(1) of the Act to omit the phrase
'subsection 29-1(1) (a decision to change the classification of a care recipient)', and
substitute the phrase 'subsection 29-1(1) or 29E-1(1) (which deal with a decision to
change the classification of a care recipient under Part 2.4 or 2.4A'.
Currently, subsection 85-5(4A) of the Act provides that a person's request to the
Secretary to reconsider a reviewable decision must comply with section 85-6 if the
reviewable decision was made under subsection 29- 1(1) of the Act.
Currently, subsection 85-6(1) of the Act provides that a request made under
subsection 85- 5(1) for reconsideration of a reviewable decision made under
subsection 29-1(1) of the Act must be accompanied by the application fee (if any)
specified in, or worked out in accordance with, the Classification Principles.
The effect of the amendment provides that a request to the Secretary for
reconsideration of a decision made under new subsection 29E-1 of the Act (see item 3
of the Bill) to change the classification of a care recipient will need to be accompanied
by the application fee (if any) specified in, or worked out in accordance with, the
Classification Principles.
Item 6A - Section 86-4
This item amends section 86-4 of the Act, disclosure of protected information by
people conducting assessments.
This item amends the existing text of section 86-4 to be numbered sub-section
86-4(1).
Items 7, 8 and 9 - Section 86-4
Items 7, 8 and 9 of the Bill amend section 86-4 of the Act.
Item 7 amends section 86-4(1) of the Act by inserting the words "or 29C-3" after the
words "section 22-4". The effect of this amendment is that a person making
assessments under new section 29C-3 of the Act (see item 3 of the Bill) may make a
record of, disclose or otherwise use protected information, relating to a person and
acquired in the course of exercising those powers or performing those functions, or
making those assessments, for any one or more of the purposes set out in section 86-4
of the Act.
10
Item 8 inserts a new paragraph 86-4(1)(ba) into the Act. New paragraph 86-4(1)(ba)
provides that one of the purposes for which a person may make a record of, disclose
or otherwise use protected information, for the purposes of section 86-4 of the Act and
if the person is a care recipient, is to assess the level of care the person needs, relative
to the needs of other care recipients.
Item 9 inserts a new paragraph 86-4(1)(d) into the Act. New paragraph 86-4(1)(d)
provides that one of the purposes for which a person may make a record of, disclose
or otherwise use protected information, for the purposes of section 86-4 of the Act, is
to monitor, report on, and conduct research into, the quality or safety of aged care.
Item 9 also inserts a new sub-section 86-4(2). The effect is to specify that the allowed
purposes in paragraphs 86-4(1)(c) (reporting on, and conducting research into, the
level of need for, and access to, aged care, or other community, health or social
services) and 86-4(1)(d) (monitoring, reporting on, and conducting research into the
quality or safety of aged care) do not include publication (whether in writing or
otherwise) of personal information.
Personal information has the same meaning as in the Privacy Act 1988 (see
Schedule 1 of the Act).
This item will assist to further the objects of the Act expressed in section 2-1 of the
Act, which include to promote a high quality of care for care recipients and to protect
the health and wellbeing of care recipients.
Information collected for the purposes of the new classification scheme set out by new
Part 2.4A of the Act will be permitted to be used for the purposes of section 86-4 of
the Act. Section 86-5 of the Act provides the circumstances in which a person will
commit an offence in using information disclosed under section 86-4 of the Act (that
is, by using the information in a way other than as provided under that section), thus
protecting this information from being used in a manner inconsistent with the section.
Item 10 - Section 96-1 (cell at table item 9, column headed "Part or provision")
This item amends section 96-1 of the Act by repealing and substituting a new cell at
table item 9 under the column headed "Part or provision". The new cell will contain
the words "Parts 2.4 and 2.4A, section 85-6 and subsection 96-2(15)".
Section 96-1 gives the Minister the power to, by legislative instrument, make
Principles providing for matters required or permitted, or necessary or convenient, in
order to carry out or give effect to a Part or section of the Act set out in the table to the
section.
The new cell at table item 9 has the effect that the Minister may, by legislative
instrument, make Classification Principles providing for matters required or
permitted, or necessary or convenient, for the purposes of Parts 2.4 and 2.4A,
section 85-6 and subsection 96-2(15) of the Act . This amendment will facilitate
amendments to the Classification Principles as required to give effect to the
amendments introduced by this Bill.
Item 11 - After subsection 96-2(14)
This item amends section 96-2 of the Act to insert new subsection 96-2(15). New
subsection 96-2(15) of the Act provides that the Secretary may, in writing, delegate
the Secretary's powers and functions under section 29C-3 (Secretary may assess care
recipients) to a person who satisfies criteria to be specified in the Classification
11
Principles (for example, professional qualifications, demonstrated experience,
role-specific training and other formal credentials required of a delegate). Prescribing
such criteria for assessors in the Classification Principles allows for flexibility and
efficiency in adjusting criteria that may be appropriate in responding to, or managing,
public health situations (for example, prescribing that an assessor meets specific
vaccination requirements).
Currently, subsection 96-2(1) of the Act provides that the Secretary may, in writing,
delegate all or any of the powers and functions of the Secretary under the Act, the
regulations or any Principles made under the Act to a person engaged (whether as an
employee or otherwise) by an Agency (within the meaning of the Public Service Act
1999) or by an authority of the Commonwealth.
The intention of the new classification scheme is for assessments to be undertaken
independently by persons with relevant clinical expertise and experience, which may
preclude some persons to whom the Secretary may currently delegate their powers
under the Act.
New subsection 96-2(15) facilitates the delegation of the Secretary's function of
assessing care recipients to persons who have relevant specialised clinical expertise
and experience. It is appropriate to delegate this function to appropriately credentialed
experts to ensure that the care recipients are assessed in a manner which accurately
captures their care needs.
The powers delegated under new subsection 96-2(15) of the Act are limited to the
assessment of a care recipient for the purposes of classification. That is, the person
who is making the assessment of a care recipient will not also have the power to
classify that care recipient under new section 29C-2 of the Act.
Item 12 - After section 96-2
This item inserts a new section 96-2A to the Act to set out the requirements for
identity cards to be issued to delegates assessing care recipients for the purposes of
new section 29C-3 of the Act.
New subsection 96-2A(1) provides that the Secretary must cause an identity card to be
issued to each person to whom the Secretary's powers and functions under new
section 29C-3 are delegated under new subsection 96-2(15).
New subsection 96-2A(2) sets out that the identity card must be in the form approved
in an instrument under new subsection 96-2A(3) and include a photograph of a person
that is no more than 5 years old.
New subsection 96-2A(3) provides that the Secretary may, by notifiable instrument,
approve a form for the purposes of new subsection 96-2A(2).
New subsection 96-2A(4) provides that a person commits an offence of strict liability
if the person has been issued with an identity card under this section, the person
ceases to be a delegate of the Secretary under new subsection 96-2(15), and the person
does not return the identity card to the Secretary within 14 days after ceasing to be
such a delegate. The penalty is 1 penalty unit. However, new subsection 96-2A(5)
provides that new subsection 96-2A(4) does not apply if the identity card was lost or
destroyed.
12
It is reasonable, necessary and proportionate that a person bears an evidential burden
to prove any claim of loss or damage to identification that prevents its return,
consistent with the level of access to vulnerable care recipients that possession of a
delegate's identification card allows.
New subsection 96-2A(6) provides that when a person to whom the Secretary's
powers and functions under new section 29C-3 are delegated under
subsection 96-2(15) is exercising those powers or performing those functions, the
delegate must, at all times, carry the delegate's identity card. Further, if a person who
apparently represents an approved provider requests the delegate to show the
delegate's identity card, the delegate must do so when requested or, if it is not
reasonably practicable to do so when requested, do so as soon as reasonably
practicable after that.
Item 13 - Clause 1 of Schedule 1 (at the end of the definition of classification
level)
This item amends the definition of classification level in clause 1 of Schedule 1 to the
Act to include any classification level determined according to the new Part 2.4A of
the Act, in addition to any classification level determined according to the existing
Part 2.4 of the Act.
Item 14 - Clause 1 of Schedule 1
This item amends clause 1 of Schedule 1 to the Act to insert a definition of
non-respite care. The new definition of 'non-respite care is defined to mean residential
care, or flexible care of a kind specified in the Classification Principles for the
purposes of new paragraph 29C-1(b), other than respite care.
13
Index]
[Search]
[Download]
[Bill]
[Help]