Key Personnel and Disqualified Individuals

The Aged Care Act (1997) places a responsibility aged care organisations to ensure that the ‘key personnel’ on their staff are not ‘disqualified individuals’, who are ineligible to work in certain key positions in aged care.

What does ‘key personnel’ mean? Who qualifies as key personnel?

Under the Act, key personnel are:

• Employees who make executive decisions about an organisation. This will include members and directors of a board.
• Employees who have authority over, or are responsible for planning, directing or controlling an organisation’s activities.
• Any person who is responsible for providing nursing services to an organisation. This includes contractors and outside professionals who are not employed the organisation.
• Any employee who is, or is likely to be responsible for the day to day operations of the organisation’s service.

What is a ‘disqualified individual’?

A disqualified individual is defined by the Act to be someone who:

• Has been convicted of an indictable offence. Indictable offences are serious criminal offences, where a person is entitled to receive a trial by judge and jury. Whether something is an indictable offence will depend on the criminal legislation in your state or territory.
• Is bankrupt.
• Is of unsound mind. A person is only seen to be of unsound mind if a registered medical practitioner has seen the person and has certified that they are mentally incapable of performing their duties.

Can a disqualified individual be a member of an organisation’s key personnel?

No, disqualified individuals may not be employed as key personnel.

What are the obligations on employers to ensure that they are not employing disqualified individuals as key personnel?

An organisation must take all reasonable steps to ensure that they are not employing disqualified individuals as key personnel. You may be sanctioned for failure to do this.

To meet their obligations, before hiring key personnel or promoting an employee to key personnel level employers must:

• Obtain a National Police Check, or a National Police History Check. The person in question must consent in writing to this.
• Search for bankruptcy records. To do so, you may use the Bankruptcy Register Search.
• Conduct previous employment and referee checks.

Additionally, it is also the responsibility of an employer to ensure that their key personnel understand that as key personnel, they cannot maintain their position if they become disqualified individuals.

What should an organisation do if it is discovered that one of their key personnel is a disqualified individual?

If it is discovered that an employer has a disqualified individual among their key personnel, the Act obliges the employer to take action to remove the employee from being one of their key personnel.

What if it is suspected that one of an employer’s key personnel is incapable of carrying out their duties?

The employer should arrange to have that person examined by a registered medical practitioner.

Contact our Employment Law & Investigations Team for more information.

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