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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Vaccination Entry Restrictions in Aged Care: What you Need to Know

From 1 May 2020, all Australian Residential Aged Care Facilities (RACFs) must ensure that every entrant to the facility has an up to date influenza vaccination. As well as increasing the risk of infection transmission, failure to comply with this requirement can result in severe financial penalties and may undermine a facility’s ability to demonstrate compliance with the Aged Care Quality Standards, particularly Standard 3.

Here are the key details you need to know about this strict new requirement.


Where Does the Requirement Come From?

All visitor screening obligations come from the directions issued by state and territory departments of health. You can find more information about these directions in our article Key Legal Changes in Aged Care: January to May 2020.


What Does the Requirement Say?

There is a bit of variation among the different state and territory directions, but they all have the same basic foundation. First, only the following people are allowed to enter a RACF:

  • Employees and Contractors
  • Persons providing goods and services
  • Persons providing health, medical, personal care, or pharmaceutical services
  • Anyone visiting a resident for “care and support” purposes, which includes family members, carers and representatives
  • Persons providing end-of-life support
  • Emergency or law enforcement personnel
  • Prospective residents

Next, even if the person falls into one of these categories, they must not be allowed into the facility if:

  • they have been outside Australia in the last 14 days, or
  • they have had contact with a person who has a confirmed case of COVID-19 in the last 14 days, or
  • they have a temperature higher than 37.5 degrees or symptoms of acute respiratory infection, or
  • they do not have an up to date vaccination against influenza, if the vaccine is available to the person, or
  • they are under 16 years (other than in circumstances where the person's presence at the premises is for the purposes of end of life support for a resident of the residential aged care facility).


When is a Vaccine not ‘Available to the Person’?

As you see above, the direction says that a person must not be allowed into a facility if they do not have an up to date vaccination, and the vaccine is available to the person. When is a vaccination “not available to a person”? The South Australian direction addresses this issue in detail, saying that a vaccination is “not available” to a person “who has a medical contraindication to the influenza vaccine (such as a person who has a history of anaphylaxis, or has had Guillain-Barre Syndrome, following a vaccination, or who is taking checkpoint inhibitor medication for cancer treatment.”

The Tasmanian direction addresses the issue in broader language, saying that a person doesn’t have to meet the vaccination requirement if there is a “medical recommendation against the administration of the vaccine to the person.”

What if there is no supply of vaccine? Does this mean the vaccine is “not available” to the person? It is unclear in most jurisdictions. The South Australian directions make it clear that lack of supply is an accepted exception, but only in the following circumstances:

  • the person is a worker at a RACF where there is not an adequate supply of vaccine, and
  • the RACF has notified the Department of Health about its lack of supply within two business days of 1 May 2020, and
  • the RACF made efforts to access a supply of vaccine.

Outside of this very limited advice in South Australia, state and territory departments of health are hazy on what RACFs should do if there is a lack of vaccine supply. This is unfortunate because standing down all staff who cannot access the vaccine can be hugely problematic as providers are already struggling with managing human resources.


Other Exceptions to the Vaccination Restrictions

The Western Australian, ACT and Victorian directions all state that compliance is mandatory unless there is a “reasonable excuse.” There is no clarification on what this means. Medical contraindications clearly provide a “reasonable excuse” but what about objections to being vaccinated on religious, cultural or spiritual grounds? This is not clear at this stage.


Do the Vaccine Restrictions Apply to Residents?



Do the Vaccine Restrictions Apply to Staff?

Yes. Providers must stand down staff who have not been vaccinated by 1 May 2020 until they are vaccinated. If they have an acceptable excuse for not being vaccinated (e.g. medical contraindication), providers still need to minimise the risk of a COVID-19 outbreak within the facility.

The optimal solution is to redeploy staff where they do not have face-to-face contact with residents/consumers.

However, redeployment can be difficult, particularly for smaller facilities and where human resources are already running short. In these cases, consider what extra infection control precautions the facility can take to reduce the risk of an outbreak.


Do the Vaccine Restrictions Apply to Emergency Workers who are Entering the Facility to Deal with an Emergency?

All jurisdictions, except Queensland imply that emergency workers must still be vaccinated before being permitted to enter the facility. Queensland, however, specifically allows unvaccinated emergency workers to enter. The example given is that an unvaccinated plumber may enter a facility to do emergency repairs if no vaccinated plumbers are available.

Providers should remember, however, that the directives don’t specifically require the checking of vaccination records. It is a due diligence measure to ensure the facility does not breach compliance and be made the subject of a heavy penalty.

Where emergency workers are concerned, providers should still check records whenever possible. But if there is a time-critical emergency, the life and safety of people come first.


Do the Vaccine Restrictions Apply to Assessors from the Aged Care Quality and Safety Commission?



Evidence of Vaccination

It’s clear that people who are not vaccinated must not be allowed into a RACF, but how can you tell if a person has been vaccinated or not? The kinds of evidence you should request at the entry point include:

  • a statement or record from a health practitioner
  • an immunisation history statement, which can be accessed via Medicare online or via the Express Plus Medicare mobile app
  • a statutory declaration stating the person has received an up-to-date flu shot
  • a statutory declaration, letter from a Minister or other official document that proves the person is exempt from the vaccination requirement.

It’s important to let all potential visitors know ahead of time that you will be asking to see this evidence. It’s also important to maintain records. Good records will improve monitoring, save you having to repeatedly ask for the same records from the same visitors and help you demonstrate compliance. Appropriate records to keep include:

  • a register recording all entrants to the facility (other than staff members)
  • a copy of the entrant’s record of vaccination/ history of immunisation
  • date of the entrant’s vaccination.


Penalties for Non-Compliance

Failure to comply with the visitor restrictions, including the vaccination restriction, attracts the following penalties:

  • In Victoria, the fine is up to $19,000 for a natural person, and $99,000 for a body corporate.
  • In Western Australia, the fine is up to $20,000 for an individual, and $100,000 for bodies corporate.
  • In Queensland the fine is up to $13,000, with no distinction between individuals/bodies corporate.
  • In New South Wales, individuals can be fined up to $11,000 plus another $5,500 for each day the offence continues and face up to 6 months imprisonment. Corporations face a fine of up to $55,000 and $27,500 for each day the offence continues.


Further Information and Resources

For more information on the vaccination requirements and other legal changes affecting the aged care industry, see our article Key Legal Changes in Aged Care: January to May 2020.

The Commonwealth Department of Health has issued this Flu Vaccination Poster to help RACFs alert anyone entering the facility of these flu vaccination requirements.


Jennifer Ma

JenniferJennifer Ma is a Content Development Assistant at CompliSpace. She recently completed the Juris Doctor at the University of Sydney, and is currently completing her PLT to be admitted as a legal practitioner. She also has an undergraduate degree in Medical Science from the University of Sydney.

Mark Bryan

Mark-BMark 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.

ACE Editorial Team
ACE is published by CompliSpace and Critical Success Solutions. CompliSpace is an Australian company that specialises in helping organisations manage their legal and regulatory obligations. Critical Success Solutions is an Australian company that specialises in helping Aged Care and Disability Services manage their regulatory and legal requirements.

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