Matthew McMahon and Matthew Yahl

COVID-19: Important Aged Care Directive Updates, Flu Vaccinations and Conscientious Objectors

Matthew McMahon and Matthew Yahl

May 29, 2020

Aged Care Legislation Updates Retirement Villages

In a blog post in March (see here) we noted the different aged care directives introduced in response to COVID-19, at both a State and Federal level. Since then there have been several updates. The changes vary from jurisdiction to jurisdiction and in this update we draw your attention to recent important changes in directives released by the Commonwealth, Queensland, South Australia, Tasmania and the Australian Capital Territory that aged care providers (Providers) should be aware of.

In addition, we have provided some information regarding flu vaccinations and conscientious objectors.

For completeness, we have outlined below the status of directives in other jurisdictions around Australia:

  • NSW: Public Health (COVID-19 Residential Aged Care Facilities) Order 2020 came into force on 24 March 2020 and can be found here;
  • Victoria: Care Facilities Direction (No 3) came into force on 11 May 2020 and can be found here;
  • Northern Territory: COVID-19 Directions (No. 24) 2020 Directions for Aged Care Facilities came into force 23 April 2020 and can be found here; and
  • Western Australia: Visitors to Residential Aged Care Facilities Directions No 2 came into force on 25 April 2020 and can be found here.

Commonwealth COVID-19 Supplement

The Australian Government has released new legislation dealing with COVID-19 support subsidies through the recently introduced Aged Care Legislation Amendment (Subsidies – COVID-19 Support) Instrument 2020 (Instrument). The Instrument can be found here.

The COVID-19 support supplement payable under the instrument, which Providers will have access to, is $31.38 or $47.07 for a day for a care recipient. The level of payment is dependent on the Modified Monash Model classification as stated in the Instrument.

If you would like to understand your rights and obligations with regard to the COVID-19 supplement payment, please contact us.

Queensland

Queensland’s most recent directive came into force on 21 May 2020 and can be found here.

The Queensland government has placed tight restrictions on residential aged care facilities, including who can enter and leave the premises of a facility. The revised directive sees a slight modification to these restrictions on residents, Providers and visitors but overall remains quite stringent. Under the revised directive:

  • A person is now allowed to enter or remain in a residential aged care facility if they are a “support person” of a prospective resident of the facility.
  • Providers are now permitted to allow a resident to leave a facility on compassionate grounds, such as to attend a funeral.
  • The Queensland Chief Health Officer is now able to grant an exemption to allow a resident to leave the facility on compassionate grounds.

We suggest that compassionate grounds is likely to be interpreted broadly. Providers should keep this in mind in any decision they make about whether or not to allow a resident to leave the premises. This is especially so for more vulnerable residents such as palliative care residents.

Any decision in relation to the above, must be balanced against the obligations of Approved Providers contained in the Aged Care Act 1997 (Cth) (Act) and the User Right Principles 2014 (Principles).

Should a situation arise where a resident is requesting to leave the facility on compassionate grounds and you are unclear about your rights, responsibilities and obligations both to the resident and to other residents in the facility, please contact us.

South Australia

South Australia’s most recent directive came into force on 22 May 2020 and can be found here.

The revised directive has loosened some restrictions on residential aged care facilities still present in most other States and Territories in Australia.

Prospective residents are now allowed to visit residential aged care facilities, which is more in line with other aged care directives across Australia.

In addition, the new directive outlines that an individual can be exempted from influenza vaccination requirements if:

  • the person has a medical contraindication; or
  • the person is a contractor or employee and is not able to access an adequate supply, provided that the Provider notifies the Department of Health and takes reasonable steps to ensure an adequate supply; or
  • the person is visiting for end of life purposes provided that they take all practical steps to receive the vaccination after their initial visit.

There has also been several other more lenient measures put in place including:

  • allowing certain personnel to enter a facility for the purposes of professional services;
  • allowing residents to leave their facility for exercise, provided they remain within 500 metres.

This may allow more opportunity for family members who are not vaccinated against influenza to see their family members (for example while the resident has left the facility for exercise). South Australia Health (SA Health) has also recently released an FAQ which deals with visits from unvaccinated visitors. One option now available to unvaccinated visitors is “window visits” whereby the visitor will remain on the outside of a window and will be able to see the resident who will be on the inside of the window, provided that the unvaccinated person does not come into contact with any other person. There will likely be practical issues to work through to implement this, depending on the physical layout of the facility.

Additionally, there may be associated risks with allowing residents off the premises under these new amendments. Providers should endeavour to ensure that all residents are fully aware of the risks and are also familiar with good hygiene practice and infectious disease prevention.

Tasmania

Tasmania’s most recent updated directive came into force on 24 May 2020 and can be found here.

This new directive has introduced a broader category of persons who are permitted entry onto the premises of an aged care facility. This expanded category now includes “key support persons”, meaning a person who intends to enter the premises for the purpose of providing essential support to a resident by “reducing distress and confusion”. This appears to address residents with dementia or other cognitive conditions. Providers should keep this in mind when attempting to accommodate their cognitively impaired residents.

A person may also now enter the facility even if they have come into contact with a known or suspected case of COVID-19 as long as:

  • the contact occurred as part of the person’s employment;
  • the person was wearing PPE equipment in accordance with relevant guidelines; and
  • there was no breach of their PPE during contact.

Providers should keep in mind this new exemption when considering options for sourcing additional or new staff members while the directives are effective. This new exemption may allow a broader category of medically trained staff to assist providers in the event that there is an outbreak and a subsequent surge capacity situation, especially staff who are trained in COVID-19 outbreaks.

Australian Capital Territory

The Australian Capital Territory’s most recent updated directive came into force on 14 May 2020 and can be found here.

Importantly, the revised directive now includes two separate exemptions to influenza vaccinations for:

  • contractors and persons providing necessary services or goods to residents; and
  • visitors at the facility for the purposes of care and support or as a prospective resident or for end of life support.

The directive provides that staff, contractors and providers of services may be exempted from the influenza vaccination requirement if it is not available due to:

  • supply issues; or
  • the relevant person has a medical contraindication.

The exemptions for visitors at the facility for the purposes of care and support, as a prospective resident or for end of life support are stricter and do not include an exemption as a result of supply issues.

Conscientious objectors

In recent weeks some providers have received correspondence from visitors refusing to have the influenza vaccination. This correspondence generally follows a similar template and includes arguments that the current directives are unlawful and unconstitutional. In the absence of a genuine medical exception or some other lawful basis to refuse a vaccination, an unvaccinated person cannot be allowed to enter an aged care home.  A conscientious objection argument does not provide a lawful basis to refuse to comply with a relevant state directive that requires a flu vaccination or entry to an aged care home.

When considering any response to such communications providers should:

  • direct the relevant person to the state or territory directive which applies to their facility; and
  • explain that non-compliance with the directive is an offence.

Basic steps providers can take to ensure best practice

Providers must also keep in mind their more general duties of good practice in line with the Act and the Principles. Under the Act and the Principles, the welfare and wellbeing of residents must be a paramount consideration for Providers.

Given the current COVID-19 pandemic, the heightened vulnerabilities of residents and to ensure consistent and best practice is maintained, we strongly recommend that all approved providers adopt an influenza vaccination policy. This will assist Providers to:

  • demonstrate they are giving paramount consideration to the welfare and wellbeing of residents;
  • ensure they demonstrate best practice; and
  • ensure they are taking a consistent approach.

Thomson Geer offers an up-to-date and comprehensive influenza vaccination policy and procedure. For more information about our policy please contact a member of our National Health, Aged Care and Retirement Villages team.