Last updated: 28 August 2020
With Victoria’s COVID-19 cases on a slow decline, Stay at Home Directions are said to be in place for at least another three weeks. Whilst staying at home is nothing new to Victorians who have faced the harshest restrictions in the country, many aged care providers are not aware that these Directions apply to their residents. The implications of these Directions applying to aged care mean that residents should not be leaving their aged care homes, even if it is to temporarily live with their family.
Inconsistencies and uncertainties
Victoria’s Stay at Home Directions (Restricted Areas) No 14 clearly state that a person cannot leave the place in which they ordinarily reside unless it is for one of the specified reasons. Leaving an aged care facility to live with family member’s does not neatly fit within any of the specified reasons. It is possible that it falls under clause 10, which permits a person to leave their home for “emergency purposes” or if their home is no longer “suitable” to live in. Without further explanation or examples of what these terms mean it is not clear whether these exemptions apply to aged care.
The Federal Government has endorsed residents taking social leave to stay with their families, enacting the Aged Care Legislation Amendment (Emergency Leave) Act 2020. Under this Act, the Government will subsidise additional leave days for residents in emergency situations which includes the pandemic from 1 April 2020 until 30 September 2020. During this period, when taking leave due to an emergency, residents will not need to:
- use their 52 days social leave; or
- pay their aged care provider further fees beyond the normal fees they would pay while on leave.
Although this ensures residents can leave their home without worrying about fees and securing their place, for residents in Victoria, taking this kind of leave may constitute a breach of the Directions.
This leaves providers in a predicament. Whilst the Directions apply to residents and not the providers themselves, in that it is the resident who may be committing an offence if they leave, providers may be criticised if they do not ensure residents are aware of the Directions. At the same time, providers must be sure not to infringe any of the resident’s rights under the Charter of Aged Care Rights; eg the right to independence and control over decisions in relation to their personal and social life.
This issue is further compounded in circumstances where a resident has contracted COVID-19. The Department of Health’s Emergency Leave Fact Sheet states that “residents with symptomatic COVID-19 will not be released from the aged care facility.” A provider should inform residents and their representatives of this requirement if they are trying to leave and have possibly been exposed to, or contracted COVID-19.
More difficulties may arise where a resident wishes to return to an aged care facility during the pandemic. One question for providers is whether they can and should require residents to self-isolate upon returning to the facility. Whilst this a reasonable request given the environment, requiring a resident to isolate may be seen as a form of physical restraint. Under the Quality of Care Principles, there are a number of requirements that apply to the use of restraint, including:
- A medical practitioner or nurse assess the resident as posing a risk of harm to others (ie. transmitting the virus) and document this assessment.
- Consent from the resident or their representative should be obtained if possible.
- 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.
Recommendations for providers
Given the Government’s endorsement of social leave during the pandemic and the uncertainty surrounding the Directions, it is unlikely that a resident would be fined for leaving an aged care facility. If residents wish to leave during lockdown we recommend providers make residents aware of the Directions to ensure their obligations are fulfilled. This will also minimise the risks associated with providers being blamed in the unlikely event the resident was penalised.
We recommend that providers:
- Apply their dignity of risk decision-making processes when a resident informs them they wish to leave; and
- Note that the resident should satisfy themselves that they are lawfully allowed to leave under the Directions.
Upon the resident’s return, the provider should consider requiring a COVID-19 test or self-isolation procedure - the facilities policy should reflect this. Providers should ensure that restraint requirements are met where possible.
How we can help
If you require any further information regarding COVID-19 managing residents leave, or any other aged care issues please contact Anita Courtney or Victor Harcourt from our expert Aged Care team.
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