How changes to whistleblower protections will influence aged care

The new Aged Care Act will feature strengthened whistleblower protections, providing more support for aged care employees and more guidelines for employers and their whistleblower policies. 

Ideagen CompliSpace recently explored the ins and outs of the new whistleblower protections in a webinar, shedding light on some notable changes to be aware of.

Key points

• Whistleblowing is the term used for when a person speaks up or makes a disclosure and when they make that disclosure that person is protected and recognised by the law
• As per the new Aged Care Act, statutory duties are imposed on registered providers and responsible persons to protect and support whistleblowers, including through an official whistleblower policy
• Any individual who makes a disclosure qualifies for protection under the new Aged Care Act, unlike the Aged Care Act 1997 where only certain individuals are protected

Nick Edwards, Senior Legal Content Associate at Ideagen CompliSpace, said providers need to pay close attention to the whistleblower reforms coming in from mid-2024 as there are penalties that could be applied if providers don’t follow the rules.

One of the most important changes is the expansion of rules that give individuals more protection if they choose to make a disclosure to eligible recipients, such as Aged Care Quality and Safety Commission staff members, a responsible person or a fellow aged care worker.

“The current rules in the Aged Care Act say that disclosures can be made by eligible people, which includes current and former staff, contractors, volunteers, consumers and their families. Under the new rules in the draft Aged Care Act, any individual will be qualified for protection if they make a disclosure,” Mr Edwards said.

“The New Age Care Act will contain different and more expansive whistleblower rules. However, what will stay the same is all aged care providers must follow these rules. Whistleblowing will still be known as a Disclosure Qualifying for Protection and it’s important to note that some aged care providers also have obligations under the Corporations Act with respect to whistleblowing.

“Your legal obligations, in an overarching sense, are to empower people to disclose, identify eligible disclosures, protect those people and respond to the disclosure,” he added.

Those four key objects – empower, identify, protect and respond – are integral to any successful whistleblower policy. This was expanded on as Mr Edwards highlighted how providers need to make it easy for people to “blow the whistle”, which includes:

• Maintaining policies and protections to create a whistleblower program
• Ensuring management and staff understand the rules
• Educating staff so they know what misconduct can be reported through a whistleblower program
• Being able to identify when someone makes a complaint or report
• Knowing what kind of complaint qualifies as a disclosure and therefore requires protection, e.g. something that falls under the Serious Incident Response Scheme (SIRS)

Whistleblower exemptions

Under the new Aged Care Act, there are a few occasions when whistleblowers cannot be protected from civil, criminal or administrative liabilities. 

There is still a list of approved recipients, which can be found in the exposure draft, but there is one notable exception: journalists. Aged care workers cannot enjoy whistleblower protection under the Aged Care Act if they speak to a journalist unless the Corporations Act is also applicable to the organisation they work for. 

“The disclosure must contain eligible content and this has also been expanded in the new Draft Age Care Act,” Mr Edwards added.

“In order for a whistleblower to be protected they must have reasonable grounds to suspect that the information indicates that any entity may have contravened a provision of the Aged Care Act. This can be any entity in any provision; the Quality Standards, Aged Care Code of Conduct rules around registration or any other rule in the new Age Care Act.”

Protecting and empowering

While there is often a general perception that whistleblowing is a negative, Mr Edwards said it is important because wrongdoings and potentially hazardous issues are being brought to your attention. You can therefore act and resolve through established processes.

Protecting and empowering your staff throughout this process is essential. This includes maintaining anonymity and confidentiality while also protecting staff from victimisation, disciplinary actions and liability. 

“They can’t be sued, charged with a crime or disciplined in your organisation. They also get protection against rights or remedies being exercised or enforced against them,” Mr Edwards explained.

“Under the draft Aged Care Act, it makes it very clear you can’t terminate any contract because the disclosure constituted a breach of contract. This would include an employee breaching a confidentiality clause in their employment contract, you cannot terminate for that reason if it’s about a valid disclosure qualifying for protection.”

More information is available through Ideagen CompliSpace’s whistleblower reforms webinar while the exposure draft contains all relevant details to whistleblower protections in the Aged Care Act.