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COVID-19: Impact on residents’ rights to security of tenure in aged care homes

Victor Harcourt, Anita Courtney, Dr Melanie Tan & Johanna Heaven

The States are moving to further protect vulnerable residents of aged care facilities by restricting the movement of those residents who put themselves at risk of contracting COVID-19. Providers need to ensure they are aware of the rules in their particular State or territory, and consider how to manage these in the context of residents’ rights under the Charter and the Aged Care Act.

For example, South Australia has recently imposed a significant directive that limits residents’ movements. Since last Friday, residents of South Australian residential aged care facilities who leave the premises for any reason other than medical or dental treatment are prohibited from re-entering those premises, under a direction made by the South Australian State Coordinator and Commissioner of Police.

Queensland has enacted as similar direction, imposing an obligation on aged care providers to prevent residents leaving the facility except to receive or access health care or in the case of emergency. The prohibition does not apply to an end of life resident. A person who fails to comply with this direction commits an offence under s 362 of the Public Health Act 2005 (Qld).

This direction in Queensland does not specifically state that a resident won’t be granted re-entry into an aged care facility after they leave. The onus is on the approved provider to ensure that residents are not leaving the facility other than for the specified purposes.

The restrictive steps taken by South Australia and Queensland reinforce the Stage 3 Restrictions that were announced on Monday by the Government.

These directions provide some clarity for aged care providers in these states and enable them to take additional steps to protect their residents. Preventing residents leaving or re-entering a facility, would, in ordinary circumstances, breach the security of tenure provisions and other residents’ rights in the Aged Care Act and User Rights Principles 2014.

Currently there is no direction in Victoria which prohibits residents of residential aged care facilities from leaving the premises. However, the state’s Stay at Home Directions, which came into force at midnight on 30 March 2020, prohibit any person from leaving the premises where that person ordinarily resides except in specified circumstances (not limited to medical care).

In New South Wales, like Victoria, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 prohibit a person from leaving the premises where that person normally resides except with a reasonable excuse. These reasonable excuses mirror Victoria’s ‘specified circumstances’. Tasmania has also issued similar directions.

The directions in Victoria, New South Wales and Tasmania do not give aged care providers the mandate to prevent a resident leaving, or to refuse re-entry into their premises. This may prove challenging as these restrictions continue and providers find themselves unable to properly manage the risk posed by residents who leave the facility in contravention of the restrictions.

We encourage aged care providers to follow Government directions closely to reduce the risk of exposure in the premises, such as by excluding visitors, practising strict infection control, and reviewing how daily activities are conducted within the facility.

To read the states directions referred to, please click on the links below:

How we can help

If you require any further information or assistance please contact Victor HarcourtAnita Courtney, Dr. Melanie Tan, 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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