What's happened?

The NSW order, and the Victorian and ACT directions, restrict access at residential aged care facilities to:

• employees or contractors of the facility operator;
• prospective residents; and
• persons who are on the premises for one of the listed purposes, which importantly include:
  • providing health, medical or pharmaceutical services to a resident of the facility; and
  • making a ‘care and support visit’ to a resident of the facility or providing end-of-life support for a resident of the facility.

A ‘care and support visit’ is a visit of no longer than 2 hours, by no more than 2 persons together, for the purpose of providing care and support to a resident. Only one care and support visit is permitted for a resident each day.

Furthermore, although a person may fall into one of the above categories for access, they must not enter or remain on the premises of a residential aged care facility if they:

• have returned from overseas in the last 14 days;
• have had contact with a confirmed case of COVID-19 in the last 14 days;
• have a temperature of 37.5 degrees or symptoms of acute respiratory infection; or
• do not have an up to date influenza vaccination.

All persons aged under 16 years are also prohibited unless they are providing end-of-life support for a resident.

The NSW order and Victorian and ACT directions require the operator of the facility to take all reasonable steps to ensure the above restrictions are complied with and there are penalties for non-compliance.

What we are seeing

Residential aged care facilities are undertaking risk assessments tailored to their individual circumstances, including the built environment and their staff and resident cohorts to ensure controls are in place to manage identified risks and adequate measures are in place for compliance with the directions. Measures that we have seen include providers:

• conducting daily or twice daily “stand up” or “tool box” meetings with staff (by technology or with appropriate social distancing) to brief them on the evolving developments and to ensure clear communication for implementing and updating the requisite measures consistent with government advice and guidelines;
• implementing protocols for centralised decision-making and communication with stakeholders, including regular updates by social media and at prominent locations on the provider’s websites;
• advancing consideration of contingency arrangements in the event of sudden changes to staff availability or resourcing requirements;
• facilitating family contact through virtual means (iPads etc);
• strictly controlling entry points to facilities, taking temperatures of persons prior to permitting entry and asking entrants to complete a written declaration confirming the person satisfies the above requirements for entry.

We are also seeing that some providers, based on their own particular circumstances and risk assessments, are imposing tighter controls than those required by the orders and directions.

Maddocks has produced guides to a range of legal issues raised by the coronavirus (COVID-19). You can access these guides here.