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Last Friday 29 October, Victoria moved to Phase C of the National Plan: the Vaccination Consolidation Phase. The focus of Phase C is to minimise serious illness, hospitalisations and fatalities as a result of COVID-19 with baseline restrictions. As part of the shift to baseline restrictions, restrictions on visitation in Victorian residential aged care facilities have relaxed.
Summary of the Directions
The Care Facilities Directions (No 48) (Directions) support the removal of restrictions on visitation at residential aged care facilities. The purpose of the Directions remain: “to make provision for restricted access to care facilities…balancing the need to limit the spread of SARS-CoV-2 against the broader responsibilities of care facilities to the physical, emotional and psychological wellbeing of their clients”.
Under the new Directions, from 6 pm, 29 October 2021:
- the former permitted reasons for visitation no longer apply;
- each resident is allowed up to five visitors per day;
- visitors are not required to be vaccinated, however, the Department of Health states that aged care visitors are “strongly encouraged” to be vaccinated; and
where visitors are not fully vaccinated, visits should occur in the resident’s room or outside, and common areas should be avoided.
In relation to prospective residents:
- prospective residents can visit facilities accompanied by up to four other persons; and
- providers can allow multiple prospective residents of the facility to attend over the course of the day so long as these visits don’t occur at the same time.
Policy framework
The Directions follow guidance released by the Australian Health Protection Principal Committee (AHPPC) which provided a framework for a return to normal visiting arrangements. The Directions are intended to strike a balance between supporting residents’ physical, emotional and psychological wellbeing with providers’ statutory responsibility to provide safe and high quality care and services to residents by limiting the spread of COVID-19.
Obviously, the possibility of visitors bringing COVID-19 into a provider’s facility remains a serious risk, and providers have a duty to take reasonably practicable steps to eliminate or manage that risk.
Both the Directions and the AHPPC framework recommend that visitors are fully vaccinated. However, they do not go as far as to require providers to refuse access to people who are not vaccinated. The AHPPC framework requires providers to make decisions to limit visitation that are proportionate to the risks and take into account the impacts of social isolation on resident health and wellbeing.
There may be instances in which a provider chooses to go further than the Directions by preventing unvaccinated visitors from visiting. However, due to the impact on residents’ rights, such measures would need to be carefully considered to avoid compliance action.
Guidance for providers
The Industry Code for Visiting Residential Aged Care Homes during COVID-19 (Code) and the National aged care guidance – aged care visitation (National Guidance) provide guidance for providers in respect of visits during COVID-19. It is likely that these documents will soon be updated.
The National Guidance was produced by the Commonwealth Department of Health and describes actions for providers to consider depending on the level of COVID-19 within the community. The National Guidance outlines a ‘Tiered Escalation’ model which providers should use to determine the level of visitation and other restrictions required to minimise the risk of COVID-19 for residents. This tiered model recommends providers escalate or de-escalate their response as necessary.
The purpose of the Code is to provide an agreed industry approach to visitation. The Code describes the respective rights and responsibilities of providers, as well as residents and visitors. Relevantly, providers have the right to mitigate risk of infection by refusing entry to their home to anyone, and to move into increased visitor restrictions when local clusters in the surrounding suburbs and towns of the home occur. However, State and Territory public health directions prevail over the Code.
The Code complements the existing regulatory framework overseen by the Aged Care Quality and Safety Commission (Commission).The Commission’s factsheet on the Code recognises:
“…the Code as an important element to assure consumers and their families of the actions that aged care providers will take to ensure that individuals in residential aged care can remain connected with their family and friends during the COVID-19 pandemic.”
Risks of non-compliance
The Commission considers evidence of how a provider is applying the Code when monitoring compliance with the Aged Care Quality Standards and the Charter of Aged Care Rights. The Commission also considers compliance with the Code when reviewing complaints. Any provider who imposes restrictions exceeding those that apply in the relevant State or Territory will need to have careful regard to the Code in justifying those restrictions.
Providers should also be mindful of other regulators. In particular, the Victorian WorkCover Authority is currently investigating providers for contraventions of the Occupational Health and Safety Act 2004 (OHS Act) arising from COVID outbreaks. On this topic, Russell Kennedy recently published an alert titled: COVID-19 outbreaks: WorkCover investigates residential aged care providers.
Providers should mitigate the risks to the health and safety of their employees and other persons so far as is reasonably practicable. A provider who fails to undertake precautionary measures to minimise the risk of COVID-19 transmission arising from an unvaccinated visitor may contravene the OHS Act.
How we can help
Russell Kennedy has advised providers in respect of compliance with public health directions work and workplace safety issues throughout the COVID-19 pandemic. We can help providers to consider their responsibilities under the public health directions in the context of broader regulatory considerations. We can also assist providers with responding to complaints by residents or visitors in respect of existing or updated visitation policies.
Please contact Anita Courtney or Victor Harcourt if you would like further information or assistance about your obligations under the Care Facilities Directions. Please contact Anthony Massaro from our Workplace Relations, Employment and Safety team if you have any queries relating to your organisation’s compliance with workplace health and safety laws.
If you’d like to stay up to date with Russell Kennedy Alerts and Events, please sign up here.
Other useful resources
Key Personnel obligations for all approved aged care providers take effect 1 December 2022
Russell Kennedy Key Personnel Package of Documents: Russell Kennedy has developed a range of resources that approved providers can purchase individually or as a pack to ensure compliance with the new requirements of key personnel. We have a Key Personnel Suitability Matters Information and Assessment Form and Guide to assist with gathering and assessing the information. We have letters and guides for key personnel explaining the changes, the regulatory context and their key obligations. We have also developed a template policy, as well as clauses for agreements and contracts.
Download our flyer here to find out about the key personnel package, and email rkagedcare@rk.com.au to find out about pricing and to purchase all or any of the resources available.