The legal opinion, seen by InDaily, is likely to to fuel a standoff between care providers and the state and federal governments, both of which have strongly urged facilities not to impose restrictions beyond those detailed in emergency directions.
Prime Minister Scott Morrison last week warned aged care homes against banning entry to visitors or carers amid the COVID-19 outbreak.
A state direction issued by SA emergency co-ordinator Grant Stevens allows for one “care and support visit” by one or two people to each resident per day.
“There needs to be a strong reminder that the national cabinet decision was to not shut people off or to lock them away in their rooms,” Morrison said last week.
“We are very concerned about the impact of restrictions that had been put in place in aged care facilities over and above what was recommended by the national cabinet.”
But the standoff intensified with the death overnight of a seventh resident at western Sydney’s Newmarch aged care home, and Aged and Community Services Australia reiterating that restricting visitation remained crucial to keeping residents safe.
On Tuesday, four more residents from the same facility died, bringing the total to 11.
A coalition of 1000 aged care homes and their representatives has also rejected Morrison’s demands, saying in a joint statement: “Aged care providers have made extremely difficult decisions for enhanced resident protections on visitation in order to reduce the number of potential exposures to the vulnerable people in our care.”
The Prime Minister’s comments have prompted one SA facility to obtain legal advice, with the exchange detailed in a series of emails obtained by InDaily.
InDaily has chosen not to identify the operator.
In an initial email to stakeholders – including board members – the facility’s chief executive warns the Government is “going hard on this topic”, noting that Queensland premier Annastacia Palaszczuk had also publicly stated “aged care facilities should not be in lockdown”.
“We will get a lot of pressure from families today but will maintain our position and confirm that we are working towards a solution based on our risk assessment,” the operator wrote.
In a later email, the CEO details the facility’s current “lockdown position”, confirming: “Visitors [are] not permitted unless there are compassionate grounds, ie a palliative situation or compromised wellbeing of resident. All requests have to be escalated to myself for approval.”
The facility employs a dedicated ‘Family Liaison Officer’ for each of its sites to manage online booking for access for families, including approved face-to-face visits, Skype calls, voice calls and “window visits”.
Visitors who are admitted must wear PPE [Personal Protective Equipment] and comply with social distancing requirements.
“This has worked well for us up until now and we have managed to keep the bulk of our families happy and understanding,” the operator writes.
“We have still had to manage some of the more persistent families but they too have been understanding.
“However, since our PM’s lovely address to the nation yesterday we have been inundated with requests to visit with suggestions that we are being unlawful as a result of restricting access.”
The operator notes aged care industry groups are “completely at odds with the Government [on] this”, writing: “The majority of SA operators are in complete lockdown and are outraged by the Government’s comments.”
“I believe we are at our most vulnerable right now as the community at large are starting to relax and the euphoria of the SA position is supporting this,” they write.
“It is too soon to be talking about relaxing anything and the more talk there is, the higher the risk there is for us – we only need one positive case to come walking through our door and the outcome will be devastating.
“I have been listening to operators both in Australia and abroad speak of their experiences with having COVID come into their homes – it’s absolutely horrific and we cannot underestimate what this looks like.”
The operator concedes “we cannot maintain a complete lockdown position indefinitely as it is having negative effects on some of our residents” and “it would be inhumane to continue in this manner”.
“We do need to consider how we can manage to support our residents and families and also manage our risk,” they write.
“My recommendation therefore is to maintain our position but work towards being able to open up face-to-face visits within strict guidelines.”
However, this would only occur after the introduction of new “infection control measures” with smaller resident hubs attended by dedicated staff.
“We need full support to move ahead as we will be challenged by our families no matter what we do now,” the operator writes.
In reply, one board member writes: “From my perspective, I don’t agree with any relaxation of our lockdown protocols.”
“In the one breath, the PM says that we can’t be complacent and relax yet on the other he seems to be saying his position and that of the National Cabinet has been misinterpreted in respect of aged care homes and access to them,” the respondent says.
“I don’t want to be the home that allows access following on from the PM’s comments and then we get an outbreak.”
Another respondent replies that “it is better to be blamed for doing too much than not doing enough [and] my view is that we keep with that ethos”.
“I believe the risk to the residents and to the organisation is far too great to open the doors this early,” they write.
“This decision may cause us to suffer reputational damage within some quarters but I am prepared to accept that over the risk in the devastation it could cause to the residents and the organisation as a whole if the virus ran through our facilities.
“I know it is difficult for families when they cannot visit their loved ones, but the family cannot allow their feelings to override the safety of all the residents… unfortunately these are the times we live in at the moment.”
The exchange prompts a response from a legal partner, who details the strictures of the SA Direction, which was updated last week and stipulates that from this Friday, visitors cannot enter an aged care facility if they “have not been vaccinated against 2020 seasonal influenza”.
The latest update allows expanded visitation rights for people providing “end of life support”, exempting them from the mandated 14-day quarantine if arriving from interstate.
The lawyer writes that “in addition to the need to comply with the Direction, [the operator] has a statutory duty owed to all staff and contractors who come onto the facility”.
“Each of our facilities is classified as a workplace pursuant to all applicable work health and safety legislation,” they continue.
“This type of legislation obligates us to make sure all staff and contractors, whilst within the workplace, remain safe.
“In my view this includes the need to make sure procedures are in place to prevent these people contracting or being exposed to the COVID-19 virus.
“Further, under the general law we owe a duty of care to make sure anyone on or about our facilities does not suffer any harm or ill health by reason of anything attributable to our management, staff, residents, invitees, contactors or the state of our premises.
“In other words we cannot be negligent, nor can we allow our people to be negligent in their actions or omissions.”
The legal advice further suggests that “under the Aged Care Act 1997 we have statutory duties to make sure the safety, health and care of our residents is at all times safeguarded”.
“Given the above, I believe the various sentiments we have expressed throughout the week are not only prudent and justifiable, but also, legally sound,” the advice continues.
“At the end of the day, we are entitled to apply the prohibitions stipulated in [the South Australian] Direction [and] indeed, we are obliged to do so [but] we also have to discharge our duties to a wide range of people as required by other legislation and the general law.
“Therefore, it is within our discretion to allow the exempted visitation rights and, to the extent that we choose to do so.”
The advice continues that the facility’s current procedures “appear to fall within our legal obligations [and] in my view, we should continue with the policies and procedures already in place”.
Aged care advocate Stewart Johnston, an Oakden whistleblower who has since advised the Marshall Government on issues in the SA industry, told InDaily it wasn’t a time for “legal bunfights” while “families and loved ones in facilities are really suffering now around the threat of COVID-19”.
“There’s a moral issue here… it’s about a basic right to see loved ones,” he said.
Johnston said while it was a challenging time for aged care facilities, “we had a Royal Commission for a reason”, which was because several had been found to have done the wrong thing, and that “with this lockdown we have no oversight or insight into what’s occurring in these facilities”.
Premier Steven Marshall yesterday had to clarify comments he made on morning radio, when he asserted there was no requirement to provide proof of a flu shot for aged care entry.
“I think that might be in place in terms of workers but not for visitors,” he told ABC Radio Adelaide.
Asked about the comment at an afternoon media conference, he said he had been asked “whether or not aged care proprietors should be keeping people out of aged care facilities if they don’t have a vaccine”.
“That’s not the case at the moment, it hasn’t been in the past – it does come into effect as of Friday this week,” the Premier said.
“But aged care facilities should not be using this as an excuse for stopping people coming into facilities… this doesn’t come into effect until Friday and we really want the ability for loved ones to visit residents in those aged care facilities.”
Marshall said he “understands the frustrations and concerns of the owners of those facilities and the leadership of these facilities”.
“This is a nasty disease and we’ve seen it really affect aged care facilities in Australia and right round the world, but we don’t want aged care facilities going above and beyond that protocol which has been put in place by the AHPPC [Australian Health Protection Principal Committee],” he said.
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