In NSW there are many restrictions in Aged Care Facilities. Are they legal?
At the moment, (September 2021), there have been disturbing reports of solitary confinement and visitor restrictions in Aged Care Facilities in NSW.
What is the source of these inhumane practices? Are they legal? And what is the Aged Care Quality and Safety Commission doing about it?
In this post I do not analyse the reports, but I do analyse the NSW legislative Orders which are on websites, and look at some of the Aged Care Providers’ websites to see what they say they are currently doing.
Look at the NSW government legislative orders
I have said in other posts on this website that the source of law is not a summary or blog post on a government website.
Yet people are misled constantly about this around Australia.
The source of law with respect to detention and banning of visitors in Aged Care Facilities due to fear of Covid is State Government legislative directions or orders. That is, directions or orders made under the authority of an Act of Parliament by an authorised person such as a Minister for Health or a Chief Health Officer.
If you are not sure what you are looking at, the directions will tell you clearly who made them.
And who is taking responsiblity for them.
For example, see here, the Public Health (COVID-19 Safety) Order 2021 which is stated to be made under the Public Health Act 2010 by Brad Hazzard, the Minister for Health and Medical Research.
See how transparent this is? That’s a good thing. If there are laws behind detention or banning visitors to citizens of this country, the public should be made aware of them.
The NSW directions from 28 August 2021
The NSW Order noted above says this to Residential Aged Care Facilities:
20 Residential aged care facilities
(1) The operator of a residential aged care facility is directed to consider the advice of the Chief Health Officer in relation to the following matters—
(a) the management of visitors to the premises of the facility,
(b) the screening of staff and visitors before entering the premises of the facility,
(c) the conduct of group recreational or other activities for residents of the facility,
(d) the wearing of face masks by staff and visitors,
(e) vaccinations against influenza or COVID-19 for staff, visitors and residents.
(2) In this clause—
operator of a residential aged care facility means the person who owns, controls or
operates the facility.
There are a few things to note about this clause. It says nothing at all about solitary confinement of residents in their rooms. It says that the operator of a facility is to consider the advice of the CHO – but it does not say they must do what the CHO says. And it does not say that the CHO can ban all visitors – rather, it describes “management of visitors”, which is not the same as banning of visitors.
Where is the NSW CHO’s advice to Aged Care Facilities?
So far, I haven’t laid my hands on a document which is called Advice from the NSW CHO to Residential Aged Care Facilities.
If there is one, it would be good to see it.
But I have found a web link which uses the phrase “Advice to Residential Aged Care Facilities“.
Who wrote it?? Who authorised it? I don’t know.
If it was written by the CHO, it should say so. Otherwise how are Facility Operators supposed to know whether it relates to clause 20 of the NSW Order noted above?
NSW website, which may or may not constitute CHO’s advice.
In the website pages noted above “Advice to Residential Aged Care Facilities“, it says:
All facilities must:
– exclude all visitors, except those providing essential caring functions and end of life visits.
– ensure that all essential care visitors wear a surgical mask. For reasons when masks can be removed please see Additional Advice.
– ensure all essential visits must be in the resident’s room.
And when you click on “essential caring functions”, you get to a web page which says:
Visiting an RACF
All residential aged care facilities (RACF) in NSW should support visits for residents, unless the facility is experiencing a COVID-19 outbreak, or where visitor restrictions apply. Allowing visits while maintaining appropriate screening and infection prevention measures improves the health and wellbeing of your residents.
Then there is some reference to advice from the CHO for Residential Aged Care Facilities, (which gives the impression that these pages do, in fact, constitute that advice, although you would not know this for sure).
Then there is some reference to guidance documents, which I am going to ignore, because the guidance documents (which I refer to elsewhere in this site) are not law, and are inconsistent with the law. If a guidance document tells a Facility to do the opposite of the law, then the guidance document should not be followed.
(And on this note, Aged Care Providers are misleading people when they say they are imposing restrictions which go above the law, as in do more than the bare minimum. They have this issue ass about. If the law allows visitors as a fundamental human right, then Providers are not going above the law by banning visitors. Rather, they are breaking the law.)
Aged Care Facilities must follow the State legislative directives or Orders, and they must in NSW consider the advice of the CHO, and they must comply with their Commonwealth Statutory responsibilities to residents in the Aged Care legislation.
What the NSW government seems to allow
Once a Provider has applied the above things, they will get to some sort of position in NSW which includes this:
- All Aged Care Facilities in NSW should support visits for residents;
- Allowing visits improves the health and wellbeing of residents;
- 1. and 2. are promoted by the CHO of NSW AND required by the Commonwealth Aged Care legislation;
- Restrictions on visitors seem to apply at the moment, but essential caring functions are not restricted and are to be promoted;
- Essential caring functions are usually pretty obvious, as per my post Who decides if you are a carer? (It’s just that Aged Care Providers too often seem to want to ignore the truth about who is loving and caring for residents other than their staff);
- Visits seem to be preferred in the resident’s room (if that’s the CHO’s advice).
Am I missing something?
So after looking at the NSW government Orders and website pages, I can’t see anything which allows for the banning of visitors or solitary confinement.
Let’s have a look at a few websites. It’s not like the Aged Care Providers bother to hide any of this. They have been getting away with it for over 18 months now.
Baptistcare’s website says nothing about essential care visits. I cannot see how its position is not in breach of the NSW Orders and in breach of the Commonwealth Charter of Aged Care Rights, because it does not allow people to visit to provide essential care to their loved ones. If it protests that it does allow essential care visits, it is certainly not telling people of their rights in this regard!
“Important Notice for all Aged Care Home staff and visitors
The following visiting arrangements at our aged care homes will remain in place until further notice:
All homes located in NSW
… Exceptional circumstance visits (end of life) can be arranged through your local home.”
Uniting NSW and ACT
I searched for “visitors” on the Uniting NSW and ACT website, and found this astounding notice:
26 March 2020; 20:00
We have implemented additional precautionary measures across Uniting residential aged care homes in NSW and the ACT to ensure the health and safety of our residents and employees.
Following the increase of COVID-19 cases in our communities and the Government’s directive for people to stay at home, we have taken the very difficult decision to close all our residential aged care services to visitors in NSW and ACT from Friday 27 March. We will review this arrangement every 2 weeks.
Under the new restrictions, Uniting residential aged care services will not be allowing visitors unless a resident is at end of life, and by prior arrangement with the service.
We know how important it is for our residents and families to stay connected. We will provide families with the support they need to stay connected to their loved ones during this time…
We apologise deeply to families and residents for this inconvenience. We have taken this necessary precaution to keep everyone safe and help prevent the spread of the virus in the wider community.
Surely they have updated their position since March 2020? And if so, shouldn’t it be on their website?
Needless to say, if the above is the Uniting position, cannot see how its position is not in breach of the NSW Orders and in breach of the Commonwealth Charter of Aged Care Rights, because it does not allow people to visit to provide essential care to their loved ones.
In NSW there are many BUPA homes. Their website talks about a Covid Safe Plan. Sounds good to have a plan. It has coloured blocks and looks very dramatic and pretty.
The BUPA site has different coloured “phases of operation”. But I haven’t seen any coloured “phases of operation” in any of the laws I have reviewed to date.
So are they following the law?
Their website describes this for their NSW homes.
Temporarily closed to visitors except for exceptional circumstances
Essential visitors only and one visitor at one time and must maintain density requirement plus 1.5m physical distancing
All visits must be pre-booked, please call care home to book
I couldn’t see a definition of essential visitors in the BUPA website. I was disappointed to see them saying homes are closed to visitors “except for exceptional circumstances”. The NSW Orders don’t talk about exceptional circumstances.
So BUPA’s rules do not appear to follow the NSW CHO Orders. Essential visitors are those who provide care. Such visitors are hardly exceptional. Are they allowing carers to visit, in accordance with law? I doubt it, if they are only allowing visits for “exceptional circumstances”.
What is the Commonwealth government and the Aged Care Commission doing about unlawful restrictions on visitors?
What’s going on? Why are these Facility restrictions – which are being imposed against or in breach of NSW government Orders and advice – happening?
Since when were Aged Care Providers allowed to make up their own rules?
And what’s Minister Colbeck, the Prime Minister, and the Aged Care Commission doing about it? As far as I know, they are doing nothing effective to stop Facilities applying these broad brush policies which are not consistent with the law.
When it’s so easy to look up the internet and see what Aged Care Providers are doing, (not to mention the reporting in the media about visitor restrictions and solitary confinement, which are not the subject of this post), why don’t those who are supposed to regulate Aged Care Providers bother to tell them they are not following the law?
If Providers don’t follow the law, and the Regulators don’t hold them to account, what hope is there for residents and their families?