Aged Care visitation: Yes Prime Minister, we think we know what you intended to say ...

Peter Myhill , Partner and 
Helena Errey-White, Solicitor

On Tuesday 21 April 2020 the Prime Minister held a press conference in which he addressed visitor restrictions implemented by aged care facilities. The comments were subsequently singled out and the topic of many news articles.

One particular comment made by the Prime Minister has caused significant confusion. For example, on Thursday 23 April 2020 The Advertiser opened a story with 'Leading South Australian aged care providers are refusing residents two in-person visits a day with their families, flying in the face of advice from Prime Minister Scott Morrison'.

Well, from our point of view, it is no surprise providers are not following that advice because if providers did they would be breaching the State Direction (discussed below) that only permits one care and support visit per day. If a provider breaches the State Direction they are committing an offence under South Australian law with a hefty $75,000 fine.

The advice The Advertiser is referring to is the following comment made by the Prime Minister during his press conference:

"The advice I think was very clear about ensuring that there could be visits of two a day, close relatives and support people, this would be undertaken in the resident's rooms …"[1]

We agree that the advice was clear but, given the national confusion that followed the Prime Minister's comment, it appears his choice of wording might not have been.

Many in the nation (including some media outlets) have interpreted the Prime Minister's comment in a manner that is not in line with the advice of the Australian Health Protection Principal Committee (AHPPC), the key decision making committee for health emergencies that advises his government. The AHPPC's advice in relation to the number of visits is that visits should be limited to a maximum of two visitors at one time per day. The visitors may be immediate social supports (such as family members or close friends) or professional services or advocacy.

The confusion surrounding the comment appears to have not gone unnoticed by the government. In the days following the press conference, the Department of Health included in its Protecting Older Australians – COVID-19 Daily Update the AHPPC's recommendations on visitations. We suspect this was done to subtly clarify what the Prime Minister intended to say.

On the issue of whether providers should follow the Prime Minister's advice, the advice is just that, only advice. The measures for aged care facilities being implemented in response to the coronavirus pandemic are set out by state governments, not the federal government (which only provides recommendations). It is therefore the state laws, regulations and directions which providers must follow.

In South Australia, the Emergency Management (Residential Aged Care Facilities No 3) (COVID-19) Direction 2020 (Direction) (which we discuss in our recent briefings (COVID-19 Direction for Aged Care and Update: COVID-19 Direction for Aged Care Facilities: Changes to who can enter a facility) made by the State Co-ordinator, Police Commissioner Grantley Stevens, sets out the restrictions on aged care facilities that providers must follow at a minimum.

The Direction permits only one care and support visit to a resident per day. A maximum of two people can attend this visit. While the Direction has the usual complicated phrasing typical of laws, the Frequently Asked Questions document published by the South Australian government to accompany the Direction is very clear:

'A resident can only receive one visit per day, from a maximum of two people at a time, from someone providing care and support (a family member or friend).'[2]

However, it is worthwhile noting that there is no limit in the Direction on the number of end of life support visits to a resident that can occur per day. It is also relevant to note that a person providing health, medical and pharmaceutical services (i.e. a health practitioner) is captured under a different category to the care and support category.

Clear communication is fundamentally important at a time like this, not only to ensure laws are properly complied with but to prevent unnecessary confusion or misplaced anger in the community. The law is changing at a fast pace to deal with the challenges of the coronavirus pandemic. This alone is a challenge for providers but such a challenge is made even greater when clear and accurate communication is not provided by the country's leader and is repeated by media outlets.

We have thought this clarification about the State Direction to be particularly necessary in the context of the current 'noise' about facility visitation – and the extent to which, even if 'opened up' facilities are constrained by State law around visitor numbers.

[1] https://www.pm.gov.au/media/press-conference-australian-parliament-house-act-16

[2] https://www.covid-19.sa.gov.au/emergency-declarations/aged-care

...The law is changing at a fast pace to deal with the challenges of the coronavirus pandemic. This alone is a challenge for providers but such a challenge is made even greater when clear and accurate communication is not provided by the country's leader and is repeated by media outlets....

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Peter Myhill

Peter Myhill

Partner
Rebecca Barr

Rebecca Barr

Partner
Helena Errey-White

Helena Errey-White

Solicitor