Aged care complaints and reportable incidents 

When something goes wrong in aged care, the Aged Care Act 2024 (Cth) opens two routes that are easy to run together and should be kept apart¹. One is the provider's own obligation to manage and report incidents, enforced against the provider. The other is a complaint by or for an individual, dealt with by a separate statutory office-holder. The prior question is which route the facts engage, because they have different triggers, different decision-makers and different consequences.

What makes an incident reportable

Section 16(1) defines a reportable incident as any of eight kinds of incident that "have occurred, are alleged to have occurred, or are suspected of having occurred", in connection with the delivery of funded aged care services to an individual by a registered provider.

The threshold is the first thing to notice. Allegation or suspicion is enough. A provider that waits to establish whether an incident actually happened before treating it as reportable has misread the subsection.

The eight categories are: unreasonable use of force against the individual; unlawful sexual contact or inappropriate sexual conduct inflicted on the individual; psychological or emotional abuse; unexpected death; stealing from, or financial coercion of, the individual by an aged care worker of the provider; neglect; use of a restrictive practice in relation to the individual, other than in accordance with any requirements prescribed by the rules; and unexplained absence of the individual in the course of the delivery of services.

Two of these are narrower than they first appear. Stealing and financial coercion are reportable where committed by an aged care worker of the provider, so misconduct by a family member falls outside the category even though it may engage a State adult safeguarding scheme. And the restrictive practice category is defined by non-compliance: a use that conforms to the requirements prescribed by the rules is not a reportable incident, while one that departs from them is.

The rules may also prescribe definitions or clarifications of the expressions used in most of the categories (s 16(2)), and may prescribe that a specified act, omission or event is, or is not, a reportable incident (s 16(3)). The statutory list is therefore a floor and a frame rather than a closed set, and an answer must check the rules.

The provider's obligations

Two conditions of registration sit behind the definition. Section 164 makes it a condition that a registered provider of a kind prescribed by the rules implement and maintain an incident management system in accordance with the rules; manage, and take reasonable steps to prevent, incidents in accordance with the rules; and not victimise or discriminate against anyone for reporting an incident. That last limb is unqualified by the rules and stands on its own.

Section 165(1) imposes a parallel condition for complaints: a registered provider must implement and maintain a complaints and feedback management system in accordance with any requirements prescribed by the rules.

The reporting duty, and where the penalty is

The duty to report is separate from the duty to manage, and only one of them carries a civil penalty on its face. Section 165A(1) requires a registered provider of a kind prescribed by the rules, where the rules prescribe that reports must be given to the Commissioner, to report reportable incidents to the Commissioner in accordance with the section. The report must be in the approved report form and prepared and given in accordance with any other requirements prescribed by the rules (s 165A(2)).

Section 165A(3) then states the contravention: an entity contravenes that subsection if it is a registered provider and fails to comply with the reporting requirement. That is a civil penalty provision, enforced by the Commissioner as an authorised applicant rather than by prosecution. A student should be careful to locate the penalty in the failure to report under s 165A, not in the underlying incident and not in s 164.

The complaints route

Complaints run to a different office-holder. Section 358 confers the complaints functions on the Complaints Commissioner, not on the Commissioner. Those functions are framed as maintaining independent, transparent, accountable, accessible, safe and culturally safe processes for making complaints about a provider's compliance with the Act, for complaints that a provider has acted incompatibly with the Statement of Rights, and for giving other feedback.

The section also requires the Complaints Commissioner to deal with complaints and feedback received; to acknowledge and engage with independent aged care advocates supporting a complainant; to collect, correlate, analyse and disseminate information to identify trends or systemic issues; and to refer to other persons or bodies complaints better dealt with by them. That referral function matters in practice, because much of what is complained about — a guardianship dispute, suspected financial abuse by a relative — belongs to a State or Territory scheme rather than to this Act.

Applying this in a problem question

1. Ask first whether the facts are a provider-side incident, an individual's complaint, or both, and answer them separately.
2. Test the facts against the eight categories in s 16(1), applying the alleged-or-suspected threshold rather than requiring proof.
3. For stealing or financial coercion, check whether the person alleged is an aged care worker of the provider; if not, the category is not engaged.
4. For a restrictive practice, ask whether the use complied with the requirements prescribed by the rules — non-compliance is what makes it reportable.
5. Locate the obligation precisely: incident management under s 164, complaints systems under s 165, reporting under s 165A, and put the civil penalty on the s 165A failure.
6. For a complaint, name the Complaints Commissioner, and consider whether s 358(e) referral to another body is the real answer.

Self-check

• Have I applied the alleged-or-suspected threshold rather than asking whether the incident is proved?
• Have I checked whether the alleged wrongdoer is an aged care worker where the category requires it?
• Have I put the civil penalty on the failure to report under s 165A?
• Have I sent the complaint to the Complaints Commissioner rather than the Commissioner?