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Visitors to aged care facilities: The Prime Minister draws line in the sand….

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Posted: 30 April 2020

On Friday (24 April 2020), Prime Minister Scott Morrison made comments about aged care facilities in his daily briefing following a meeting of the National Cabinet.

The Prime Minister was concerned that, despite his comments earlier in the week, some aged care facilities were still restricting visits by family members to residents. He flagged that if the situation did not change then he would explore the introduction of regulations to force facilities to allow visits by family members. It is clear that the Prime Minister wants more family members to be able to go into aged care facilities to visit their loved ones.

The current restrictions in South Australia are, in general terms, that an aged care resident cannot have more than one visit, of up to 2 visitors, per day. The restrictions do not, however, prevent an aged care facility from stopping all visits by family members to residents. (Unsurprisingly, there are various exemptions to the restrictions on visitors as well as some additional prohibitions on visitors, which we will not go into for the purposes of this blog. We will simply deal with the general position.)

On the same day as the Prime Minister's comments, the World Health Organisation announced that up to half of all of the COVID-19 deaths in Europe were residents of aged care facilities. In Australia, we are aware of two aged care facilities in Sydney where clusters of residents have died (currently 6 deaths at Dorothy Henderson Lodge and 12 deaths at Newmarch House, against a national death toll of 90) after contact with infected aged care workers. Other than cruise ships, aged care facilities have been the most dangerous circumstances for COVID-19 infections that Australia has had to contend with.

The current guidelines allow family members to visit a resident in the resident's own room, but the resident is then free to later mingle with other residents (and staff) within the facility. It is clear that a single asymptomatic family member could bring an infection into the facility, resulting in the deaths of many residents (and potentially staff).

In light of the high risk posed to the elderly by COVID-19, many aged care facilities have made the decision to restrict visits by family members beyond the minimum restrictions required by the state law. Of course, imposing restrictions on visitors is not new, given that aged care facilities have always contended with outbreaks of influenza and gastroenteritis from time to time. In the current pandemic, some facilities have prevented family members from visiting at all. We have seen uplifting stories in the media of measures taken by aged care facilities to facilitate other types of contact, whether through video conferencing, "windows of love" or other technological means.

The decisions made by aged care facilities to impose additional restrictions are not taken lightly. Aged care staff do understand the importance of personal contact upon the wellbeing and dignity of residents. The decisions made by facilities have involved the consideration of many factors, some of which are competing. The fact that deaths of aged care residents are such a low proportion of the overall deaths in Australia is a testament to the management of its aged care facilities.

A number of stories in the media in recent days have focussed upon individual family members complaining about the fact that aged care facilities have not let them in to see their loved ones. We note that these stories focus upon the rights of individuals at a time, more so than in any recent decades, where society is relying upon altruistic behaviour for the greater good. Interestingly, the comments made in relation to such stories by readers seem to overwhelmingly support the right of facilities to keep their doors closed to visitors in order to protect residents. We therefore query to what extent public sentiment is behind the Prime Minister in this issue.

The position being taken by the Prime Minister in relation to schools is in contrast to the position taken in relation to aged care facilities. Aside from the risk to staff in either scenario, the position taken in relation to schools is that whilst parents are encouraged to return their children to school, parents have the right to keep their children out of school if they feel that is the safer thing to do. We note that children have a lower rate of confirmed infections and that there have been no deaths under the age of 40 in Australia. On the other hand, the Prime Minister would deny aged care facilities the right to keep visitors out if they think that is the safer and proper thing to do. Even more so, if the majority of aged care residents within a facility decide that they do not want visitors coming in – and we have heard of situations where that is the case – then the wishes of those residents to stay safer would be overruled.

We also note that hospitals have been restricting visitors to patients beyond what the law requires but we are unaware of any criticisms being made of them for doing so.

The Aged Care Quality and Safety Commission has published advice to residential aged care facilities (on 22 April 2020) in which it comments that exercising care and compassion and keeping consumers at the centre of decision-making aligns with: “the expectations of National Cabinet is that it is not acceptable, fair or compassionate for residential aged care services to ban visits from… families". That advice fails to explain that good and proper decision-making by a facility, including taking into account the wishes of residents, might not align with the expectations of the politicians.

We have personally had members of our own families in residential aged care and so empathise with family members who might not be allowed into aged care facilities at the moment. However, professionally, we do act as lawyers for aged care facilities. The question you might ask of us is whether aged care facilities ought to follow the wishes of the Prime Minister. As lawyers, we would say not necessarily. An answer of "the Prime Minister said we should let visitors in" may not satisfy a judge, coroner or regulator in the event of an outbreak in a facility that leads to illness or even deaths. Aged care facilities are subject to a myriad of federal and state laws, standards and guidelines – and facilities should continue to follow these and their risk management processes and make informed and considered decisions. The comments of any politicians, including the Prime Minister, are just comments. If that means that aged care facilities make decisions to continue to impose stronger restrictions on visitors than the state directions currently require, then so be it. If that leads to the Prime Minister changing the law, then facilities will need to comply.

In the meantime, we hope that the public will continue to support the valuable work done by aged care workers in caring for one of the most vulnerable cohorts of our society.

Alf Macolino

Alf Macolino

Partner
Peter Myhill

Peter Myhill

Partner
Rebecca Barr

Rebecca Barr

Partner
Michael Spencer

Michael Spencer

Special Counsel

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