Aged Care Law Monitor January 2021: A Tool to Help you Stay Up to Date with Legal Changes

Struggling to keep up with the latest COVID-19 infection control requirements? How about visitor restrictions, human resources and grants? Not to mention the Serious Incident Response Scheme, ACFI and the NDIS.

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Aged Care Royal Commission COVID-19 Report: A Short Summary for Aged Care Providers

On 30 September 2020, the Royal Commission into Aged Care Quality and Safety released Aged Care and COVID-19: a special report. The report paid tribute to aged care workers “and the vital work they do” and noted that the aged care workforce is not only overworked and under-resourced, “it is now also traumatised.”

The report made six recommendations, which have all been accepted by the Australian Government. In this article we summarise the recommendations and what they mean for residential aged care providers. We also provide links to three helpful, free resources at the end of the article under "Additional Resources".


Recommendation 1: Reporting and Implementation

The Australian Government should report to Parliament by no later than 1 December 2020 on the implementation of these recommendations.

On 1 October the government tabled the Royal Commission’s report in Parliament and accepted all the recommendations. For details see the Department of Health’s media release.


What does this mean for providers?

The recommendations below are locked in. They will happen. Some are already being implemented.


Recommendation 2: Visitors and Quality of Life

The Australian Government should immediately fund providers that apply for funding to ensure there are adequate staff available to allow continued visits to people living in residential aged care by their families and friends.

The Royal Commission found that while restrictions on in-person visits to residential aged care homes were necessary to limit the risk of a COVID-19 outbreak, such restrictions also had “tragic, irreparable and lasting effects” on residents.

“There is a balance to be struck between limiting the likelihood of an outbreak of COVID-19 and ensuring residents can receive visitors.” The Royal Commission said that to achieve this balance, aged care providers will need to hire more staff, which means they will need more funding.


What does this mean for providers?

This recommendation is likely to mean more funding opportunities for providers. This funding will not be automatic – individual providers will have to apply for it. Also, the funding will be restricted, so that providers can only use it to hire more staff for the purpose of facilitating safe visitor access to the home. This means the funding will come with some reporting obligations and other administrative burdens.

Separate to the funding opportunities, there may be an increase in providers’ obligations. The Royal Commission’s report says that providers must

  • continually review and revise their position on visitation
  • share and celebrate innovative solutions
  • make every effort to encourage and facilitate safe visitation that complies with State and Territory public health restrictions
  • explain and justify any blanket bans on visitation.


Recommendation 3: Allied Health

The Australian Government should urgently create Medicare Benefits Schedule items to increase the provision of allied health services, including mental health services, to people in aged care during the pandemic. Any barriers, whether real or perceived, to allied health professionals being able to enter residential aged care facilities should be removed unless justified on genuine public health grounds.

According to the Royal Commission’s report, “Levels of depression, anxiety, confusion, loneliness and suicide risk among aged care residents have increased since March 2020.” This means that residents need support from allied health professionals now more than ever. Unfortunately, due to COVID-19 restrictions, some residents have had their access to allied health professionals reduced. This is despite the fact that the Visitation Code and State directives now make clear that allied health professionals are not to be considered visitors.


What does this mean for providers?

This recommendation is mainly targeted at Government, asking them to increase the provision of allied health

services, including mental health services, to aged care residents. But the Royal Commission’s report does specify that “providers should ensure they provide the fullest range of allied health services they can.”

This suggests that providers’ provision of allied services is likely to come under increased regulatory scrutiny. Providers should ensure that they maintain adequate records in this area and have evidence at hand to justify their decisions.


Recommendation 4: National Advisory Body and Plan

The Australian Government should establish a national aged care plan for COVID-19 through the National Cabinet in consultation with the aged care sector.

The Royal Commission’s report advises that this National Plan should:

  • establish a national aged care advisory body
  • establish protocols between the Australian Government and the States and Territories based on the NSW Protocol but having regard to jurisdictional differences
  • maximise the ability for people living in aged care homes to have visitors and to maintain their links with family, friends and the community
  • establish a mechanism for consultation with the aged care sector about use of Hospital in the Home programs in residential aged care
  • establish protocols on who will decide about transfers to hospital of COVID-19 positive residents, having regard to the protocol proposed by Aged and Community Services Australia
  • ensure that significant outbreaks in facilities are investigated by an independent expert to identify lessons that can be learnt. The results of any such investigations should be promptly disseminated to the sector.


What does this mean for providers?

If this recommendation is implemented well, it could simplify COVID-19 regulations for aged care providers. At the moment, visitor restrictions and other COVID-19 regulations are scattered across a range of sources that change frequently. This makes it hard for aged care providers to keep up to date. The establishment of a single, national advisory body might consolidate sources and reduce confusion

As some parts of the plan are to be developed in consultation with providers, this might also give providers an opportunity to make some of the changes that they would like to see.

On the other hand, if not implemented well, the establishment of the national advisory body and its plan may just add another layer of bureaucracy and increase the complexity faced by aged care providers.


Recommendation 5: Infection Control Expertise

All residential aged care homes should have one or more trained infection control officers as a condition of accreditation. The training requirements for these officers should be set by the aged care advisory body we propose.

The Royal Commission’s report argues that standard infection control procedures are not sufficient to deal with COVID-19, and that additional expertise is required. The report acknowledges that training all aged care staff in the necessary expertise is impractical, so they suggest training one “infection control champion” in each aged care home.


What does this mean for providers?

At some stage, aged care providers will likely be required to organise for at least one staff member per home to be trained as an infection control champion. The Royal Commission’s preferred model for this training is a six-month course that includes mentoring. The report does not say where the funding for this training should come from. Rather, it says that the training requirements will be set by the proposed national aged care advisory body. This means that questions of funding are likely to be a matter for that body.


Recommendations 6: Personal Protective Equipment (PPE)

Recommendation 6: The Australian Government should arrange with the States and Territories to deploy accredited infection prevention and control experts into residential aged care homes to provide training, assist with the preparation of outbreak management plans and assist with outbreaks.

The Royal Commission’s report said that among aged care workers there was a dangerous lack of expertise about the use of PPE.


What does this mean for providers?

Providers are likely to receive a visit from an appointed infection prevention and control expert who will provide training to staff. At this early stage, it is not clear when this would happen or exactly what it would involve.


Does the Report Go Far Enough?

In his article in The Conversation, Joseph Ibrahim, Professor at the Health Law and Ageing Research Unit at Monash University, criticises the Royal Commission’s Report for not going far enough. His key points are


Visitor restrictions: the report should have pushed for the introduction of a mandatory code for visits to aged-care homes during COVID-19 to replace the current voluntary code


Allied health: the report should have suggested the introduction of structured rehabilitation plans for residents with support from care workers. This would ensure the allied health advice provided through these new Medicare items is followed. Also, the report should have addressed the increased risk of infection posed by the many allied health staff who work across multiple aged care homes.


National advisory body and plan: as part of the national plan, the report proposed that significant outbreaks in facilities are to be investigated by an independent expert, and any lessons promptly disseminated to the sector. But the report should have provided detail on what constitutes an independent expert. Also, the report should have recommended that senior nurses, family members and residents (ideally supported by human rights lawyers) be appointed to the national advisory body so that the people who will be most affected by the decisions are directly involved in making them.


Broader issues: “Ultimately, this report was not designed, nor did it deliver, an understanding of what went wrong in aged care, and why. Similarly, the recommendations do not go to the heart of the information gleaned from the appalling and tragic lived experiences of residents, families, aged-care workers and health professionals.”


Additional Resources

Webinar Recording: Understanding the Gaps in Infection Control Plans that can put Residential Aged Care Facilities at Risk

Further to Recommendation 5 on Infection Control Expertise, a webinar called “Understanding the Gaps in Infection Control Plans that can put Residential Aged Care Facilities at Risk” was presented by aged care governance, risk and compliance experts, CompliSpace. Click here to learn more and request the recording.


COVID-19 Regulatory Changes - tracking page

Click here to access a tracking matrix of legislative and regulatory changes, best practice resources and advice from regulators and government departments regarding the prevention and management of COVID-19 outbreaks.


Aged Care Law Monitor

Aged Care Law Monitor is a quarterly report that summarises key legal, regulatory and compliance changes for residential aged care leaders and boards. Click here to request your copy.

Mark Bryan
Mark is a Legal Research Consultant at CompliSpace and the editor for ACE. Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.

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