Aged care and the COVID-19 pandemic: 10 legal tips for residential aged care providers

Anita Courtney, Anthony Massaro, Libby Pallot, Solomon Miller, Dr Melanie Tan

The World Health Organisation today declared COVID-19 a pandemic. With cases rising in Australia, particularly from community transmission, COVID-19 will present significant ongoing challenges to the aged care industry for months to come. Aged care providers who fail to adequately manage the risk may face legal and/or regulatory action, and risk long-term reputational damage in a highly-charged socio-political climate.   

With the ongoing backdrop of the Aged Care Royal Commission, aged care providers operating within a strict regulatory framework are faced with a unique and novel challenge in this public health crisis. That is, how to effectively balance regulatory obligations with their duty of care to residents - all of whom are most vulnerable to the virus. Times are uncertain and responses unpredictable – so far we have seen ‘panic-buying’ leading to individual supply shortages, and a whole country go into lockdown. Such contingencies will have significant impact on the aged care sector, and it is now time to start planning.

We set out below 10 key legal tips which residential aged care providers should consider.

1. Stay on top of the communications from the authorities

This may seem obvious, but it is imperative aged care providers stay on top of alerts being issued by regulatory authorities, including the Aged Care Quality and Safety Commission (ACQSC) and the Department of Health. News has been evolving on a daily basis, and no doubt will continue to do so indefinitely.

We know from previous experience (eg. in relation to restraints) that the ACQSC expects providers to be aware of, and on top of, any advice it issues. Providers must therefore remain alert and act quickly - and when in doubt, seek advice in these unprecedented circumstances.

2. Communications with employees, residents and families

Providers will need to ensure they are adequately communicating with residents and their families, as well as all staff.

For example, clear signs should be placed at the entrances of homes asking visitors not to attend if they are feeling even mildly unwell, particularly if they have returned from overseas or have been in contact with someone who has tested positive for COVID-19. Communications should request that visitors consider self-isolation if they have returned from a region identified as high or moderate risk for COVID-19 (or again if they have been in contact with someone who has tested positive for the virus).

Given the unprecedented levels of alarm within the community and now confirmed pandemic status of the virus, we suggest providers offer reassurance to stakeholders of actions they are taking to protect residents and staff from the virus. Providers could consider writing to residents, families and staff, setting out measures that are being taken, and inviting any concerns to be reported.

3. Review your policies and procedures

Providers should review and revise (if necessary) any policies and procedures in place that might have an unanticipated impact in the context of COVID-19.

For example, in relation to medical emergency/CPR policies, how should staff manage an acutely unwell resident known to be positive for COVID-19 - and may have deteriorated because of it? Should staff be giving CPR if such a resident becomes unresponsive – and if so, how should they be protecting themselves? Should residents with known infection be immediately transferred to hospital – or only those with serious co-morbidities, or on assessment by their GP? What approach is to be taken if a resident develops a cold – is there a process of ‘triage’ to be applied when seeking medical assistance? Should all residents who develop any symptoms be tested – and if so, how? Providers should also consider whether any advance care plans, directives or policies need to be addressed.

Other policies unrelated to care may also require review, such as visitation policies. Policies which support dignity of risk in accordance with the Aged Care Quality Standards should also be considered, and possibly reviewed, in the context of COVID-19 and additional risks to third parties.

It would also be prudent to put in place a specific policy to set out when a resident or staff member should be tested, or isolated – with a parallel review of restraint policies.

4. Review your resident agreements

This may now be the time to review your resident agreements to ensure they have adequate ‘emergency’ provisions in place. Resident isolation, staff or supply shortage, or facility lockdown will impact care and services provided, including extra services and additional services.

You should also review any extra services/additional services you are obliged to offer, and whether you are still able to provide them in the context of COVID-19.

5. Exercise isolation carefully

Providers will need to consider when a resident should be isolated (eg. on symptoms or exposure?), and how. While providers should take guidance from the Department of Health, some providers may wish to err on the side of caution if other residents are particularly vulnerable (eg. with chronic illnesses). At the same time, providers must balance the need for isolation with the risk of isolating the resident – this is discussed in the next section.

It is also important to bear in mind that isolating a resident who tests positive for the virus will be a form of physical restraint, even if necessary to prevent the risk of transmission within the facility or in accordance with Department guidelines. While we would expect the ACQSC to approach isolation in the context of COVID-19 differently, we suggest the requirements for lawful physical restraint nonetheless be met (to the extent possible). Some of these requirements are unlikely to be challenged in the context of COVID-19 (eg. no alternatives to restraint are possible, isolation is the least restrictive form of restraint possible). However we recommend that a medical practitioner or nurse still assess the resident as posing a risk of harm to others (ie. transmitting the virus) and document this assessment – a positive test would clearly support this.

Further, consent from the resident or their representative should still be obtained, and the resident not be isolated for any longer than necessary, in accordance with current guidelines (which, at the time of writing is 14 days). If a resident or their representative refuses consent urgent advice should be sought.

Given the particular vulnerability of all residents in aged care, it is imperative that isolation must not compromise care. Residents in isolation will require especially close clinical monitoring, and consideration should be given as to how this may be achieved while protecting staff from infection – discussed further below.

Finally in isolating any resident, it is also important for providers to carefully consider how to maintain their confidentiality and privacy - where COVID-19 is a notifiable disease and where in this climate, any person in isolation is likely to be presumed to be COVID-19 positive.

6. Reconsider social activities and visitors

Providers may wish to review their meal arrangements and activities calendars to reduce resident to resident contact and the risk of asymptomatic transmission. Providers may also consider restricting visitors to the resident’s room only, away from communal areas.

If the virus continues to take hold, providers may need to consider cancelling group activities or public outings. These types of measures will need to adopted in a manner consistent with the obligation for providers to offer social activities, and with residents’ rights to maintain relationships with their families. For example, you may consider offering tablets or smart phones to residents so they can video-call their loved ones.

Providers offering social activities or outings as part of an additional services program will also need to consider whether it is necessary to adjust their fees for a period while these activities are interrupted.

7. Reconsider staff management

Understandably, this has been a key concern for providers since a staff member was tested positive for the virus in a NSW aged care home.

Providers will need to be clear about their expectations as to when staff should attend work, and be vigilant in relation to staff who are unwell. In imposing restrictions on staff, providers should be wary of their legal obligation to comply with the Fair Work Act 2009 and relevant anti-discrimination laws and ensure that any restrictions are are lawful and reasonable and are required to ensure that the workplace is safe.

Staff who are not able to work may or may not be entitled to paid leave and some may be able to work productively from home, depending on the role. It may also be in providers’ interests to expedite identification or exclusion of COVID-19 cases by funding quicker tests offered at some private hospitals for a higher fee.

For staff at work, infection control policies should be reinforced and stringent protocols implemented. Personal protective equipment provided where appropriate. While masks have not generally been recommended for people who are well, some experts consider they provide a limited level of protection with the added benefit of preventing people from touching their face (which is thought to be a significant mechanism of self-transmission).

Rosters might also be adjusted to limit potential transmission – for example, by assigning one nurse/carer to specific residents only (ie. avoid ‘sharing’ the care of residents).

8. Liaise with subcontracted/brokered personnel

Providers should issue communications to their contractors outlining who can and cannot attend to residents, and any relevant updates to policies and procedures. It may seem obvious that staffing agencies should heed the advice of health authorities and not send staff with suspected COVID-19 to care for residents - however providers who do not take steps to communicate their position may be criticised for failing to do so if an unwell contractor transmits the virus.

You will need to consider the terms of your contracts to determine the appropriate mode of communication – eg. whether a policy restricting ‘at-risk’ staff from attending is permitted, or whether a more formal variation is required.

9. Manage supplies and be prepared for shortage

Providers will need to consider the terms of their supply contracts, and make contingency plans for any interruption to supply. Suppliers who are unable to fulfil their contractual obligations may argue they are not liable as the contract has been frustrated. Providers may need to seek other sources of supplies required to provide care and services (eg. toilet paper, continence aids), and document their efforts in doing so.

10. Check your insurance

Providers should review their insurance policies to ascertain coverage (eg. business interruption insurance, extent of public liability insurance). It’s also important that you check your obligations to notify your insurer in the event that something goes wrong.

Aged care providers should prepare for uncertain times and should not hesitate to seek advice from appropriate experts. COVID-19 presents novel and unprecedented challenges within a regulatory environment that is also still evolving, with the Aged Care Royal Commission continuing while the pandemic is unfolding.

If you require any further information regarding COVID-19 please contact Anita Courtney (03) 8602 7211, Anthony Massaro (03) 9609 1501, Libby Pallot (03) 9609 1584, Melanie Tan (03) 9609 1577, Solomon Miller (03) 9609 1650, or our expert Aged Care team.  

If you would like to stay up to date with Alerts, Insights and upcoming events, you can subscribe to our aged care mailing list here.

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