The unnamed aged care operator has told a local paper that they have received legal advice that aged care homes have the legal “discretion” to refuse visits to residents during the COVID-19 pandemic – in contradiction to the direction by both State and Federal Governments to allow families in.
The Prime Minister warned operators last week against banning families from visiting, while the SA directions allow for just one visit from one or two people per resident per day.
InDaily says they have been shown emails between the CEO and board members about their current ‘lockdown position’ and the risk of easing their restrictions to allow for face-to-face visits.
The exchange prompts a response from a legal partner, who runs through the latest SA Direction, which was updated last week.
“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.”
“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 lawyer adds 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 [to not ease visitor restrictions] are not only prudent and justifiable, but also, legally sound.”
“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.”
Would the Government take the same view? We think not.
But the advice again raises an important point about responsibility – if restrictions are relaxed and more outbreaks occur, who will shoulder the blame – providers or the Prime Minister?
