The public health emergency created by the COVID-19 pandemic has had a particularly devastating impact on elderly Australians and those living in residential aged care. Government policy and regulation in this area continues to evolve, particularly in Victoria.

The residential aged care sector has been at the forefront of the fight against COVID-19 in Australia. Providers must stay informed of key sector developments and be proactive to ensure that they are equipped to respond swiftly to evolving circumstances and regulation.

Recent changes to the Public Health Orders

The 'second wave' of COVID-19 outbreaks has led to a number of states and territories once again tightening the restrictions that are placed on aged care facilities. As at 1 September 2020, all states and territories had in place directions for aged care providers, pursuant to public health legislation (Directions).

All states and territories currently prohibit persons from entering or remaining on the premises of aged care facilities when they:

  • have a temperature equal to or higher than 37.5 degrees (38 degrees in South Australia) or symptoms of acute respiratory infection;
  • do not have an up to date vaccination against influenza if the vaccine is available to the person (with some exceptions, including that vaccination is no longer a requirement of entry in Victoria); or
  • have, during the last 14 days, arrived from a place outside of Australia or had known contact with a person who has a confirmed case of COVID-19.

South Australia and Tasmania further prohibit entry for persons who have, during the last 14 days, arrived from a place outside of their respective states (though an exception applies in South Australia for those arriving from a low community transmission zone). Queensland prohibits entry for persons who have, during the last 14 days, been to a COVID-19 'hotspot'.

Directions in NSW, Victoria, the ACT, South Australia, the Northern Territory, and Tasmania specify that only current and prospective residents, employees/contractors and other essential providers and visitors, as variously defined in each state and territory, may enter aged care facilities. The Directions in Victoria further prohibit visitors under the age of 16, and visitors who have been tested for COVID-19 and have not yet received the results of the test, except in limited circumstances.

In Western Australia, there are currently no restrictions on a particular class of persons who may enter and remain on aged care facility premises (apart from the restrictions in force in all jurisdictions as outlined above). However, facilities must require that, where reasonably practicable, services must be provided in a way that limits the need for service providers to enter the premises.

Due to the recent cluster of COVID-19 cases in Queensland, two levels of restrictions are currently in place for residential aged care facilities in that state. The majority of facilities in Queensland do not restrict the class of persons who may enter and remain on the premises of a residential aged care facility. However, a number of Local Government Areas have been declared to be 'restricted areas' and residential aged care facilities located in these areas must refuse entry to all persons except:

  • employees/contactors,
  • people providing necessary goods and services,
  • visitors to end of life residents, and
  • prospective residents and their support persons.

'Restricted residential aged care facilities', including facilities located in restricted areas, may not permit a resident to leave the facility except in limited circumstances, including to receive healthcare, on compassionate grounds, or where that person is an end of life resident.

The situation in Queensland creates an additional layer of regulatory complexity for aged care providers, where facilities in the South of Brisbane, as well as other limited places, are subject to significant restrictions that are not being imposed on facilities in the North of Brisbane, or elsewhere throughout the state. It will be important for providers to remain up to date on the ever-changing regulation not only between jurisdictions, but also between different suburbs of the same jurisdiction.

Given the level of success experienced in Queensland to date, this may be a model for other jurisdictions' approach to COVID-19 outbreaks and has the potential to be part of the broader regulatory landscape while the pandemic continues.

Our article on Regulatory compliance in a COVID-19 crisis: aged care outlines proactive steps providers must take to ensure that they are responding to the risks to consumers and staff, as well as managing broader operational issues, such as government policy and regulation.

COVID-19 Hearings of The Royal Commission into Aged Care Quality and Safety

On 30 July 2020, the Honourable Tony Pagone QC, Chair of the Royal Commission into Aged Care Quality and Safety (Royal Commission), announced that the Royal Commission is not able to, and will not, conduct a full inquiry into the impact of COVID-19 on Australia's aged care sector. The ACRC announced a targeted investigation into the response to COVID-19 in aged care in May 2020. This inquiry took place over a number of days, with hearings commencing on 10 August 2020.

The Royal Commission explored how facilities which experienced early outbreaks responded to the crisis, and what more could have been done to support them. Specifically, the inquiry focussed on:

  • Lessons to be learnt about preparedness for a major outbreak;
  • Whether the sector's response to COVID-19 appropriately balanced the needs of all of those affected;
  • The role and responsibilities of state, territory and federal governments in responding to a major outbreak;
  • What should be done and by whom in supporting the sector's response to future outbreaks;
  • The balance between managing infection risks and maintaining the overall health and wellbeing of aged care recipients;
  • The measures to respond to the pandemic, including decisions to transport residents to hospital, and the impact of those measures on aged care recipients and their families; and
  • Challenges faced by the sector in management, workforce and access to personal protective equipment (PPE).

It is important to note that the limited scope of the Royal Commission in relation to the COVID-19 response does not mean that the aged care sector will not be subject to further scrutiny. Commissioner Pagone has stated publicly that the aged care sector's handling of COVID-19 warrants an inquiry of its own. Providers should anticipate that the aged sector will continue to face considerable scrutiny as the COVID-19 crisis continues.

The Government's Aged Care Response Team in Victoria

On 25 July 2020, the Commonwealth Government announced it was establishing a Victorian Aged Care Response Centre to bring together Commonwealth and state government agencies at the State Control Centre in Melbourne in a co-ordinated effort to manage the pandemic's impact on the sector. The Response Centre will be led by an executive team comprised of staff from the Department of Health, Aged Care Quality and Safety Commission, Victorian Department of Health and Human Services, Emergency Management Australia, Emergency Management Victoria and Defence. Additionally, the first team of Australian Medical Assistance Team (AUSMAT) personnel has recently joined the COVID-19 response in Victoria.

As part of the coordinated effort to support the aged care sector in Victoria, the Commonwealth government has committed to providing 500,000 reusable face shields and five million face masks across around 770 Victorian aged care providers, in addition to the four million surgical masks made available to aged care services on July 13.

Senate Select Committee's Aged Care Hearing into COVID-19

Representatives from the Aged Care Quality and Safety Commission (ACQSC) and the Department of Health, along with Senator the Hon Richard Colbeck, Minister for Aged Care and Senior Australians appeared before the Senate Select Committee on COVID-19 (Committee) on 21 August 2020 to comment on the COVID-19 outbreaks in residential aged care facilities. Generally, in response to criticism of the aged care sector, Senator Colbeck acknowledged that the Commonwealth 'did not get everything right' but was hesitant to agree that keeping aged care residents safe during a pandemic was the Commonwealth's responsibility. Rather, he reiterated that public health is a combined responsibility of both the federal and state governments, and that it is not possible to prevent COVID-19 entering aged care facilities where there is widespread transmission in the community.

In relation to the outbreak at St Basil's in Victoria, Ms Anderson corrected an error in her evidence given to the Committee on 4 August 2020 and advised that information about a positive case was provided to one of the regulatory officials during a telephone assessment contact and noted within a COVID-19 Confirmed Case Tracker. No further action was taken as it was assumed that the provider had informed the Public Health Unit. Ms Anderson assured the Committee that there are now processes to cross-check this information to ensure timely notifications are made. Senator Colbeck reiterated that while a total loss of a care workforce was contemplated, decision-makers did not anticipate a total loss of managerial, administrative and support workforces as was seen at St Basil's.

In response to questions about the Victorian 'failure' of hotel quarantine and contact tracing, Professor Murphy noted that contact tracing is not possible where community transmission is at the level that it was at the time in Victoria, but emphasised that he is confident Victoria has now done enough to ensure there will not be additional outbreaks in the future. He also pointed to several key differences between the NSW system and the Victorian system which could explain the different outcomes seen, emphasising that most states and territories are not on par with the standard of response in NSW.

Further government funding announced

On 20 August 2020, Prime Minister Scott Morrison and Professor Kelly discussed aged care at length in a press conference following a National Cabinet meeting. An agreement was reached for emergency response centres to be launched in other jurisdictions, modelled on what has been rolled out in Victoria. The National Cabinet acknowledged that there are already existing arrangements in some states and territories to allow for assistance in aged care from the state and territory governments. The Prime Minister acknowledged the efforts of Queensland and New South Wales and that the programs in those jurisdictions are good.

The Prime Minister announced a further $171 million in funding to extend the aged care response package. This brings the total to over $1 billion in funding for the COVID-19 response. Funding will be allocated as follows:

  • $9.1 million to fund the operation of the Victorian aged care response centre;
  • $103.4 million in already announced COVID-19 preparedness measures such as call centres;, workforce support, compressed training programs for people entering the aged care workforce, meeting quarantine costs for interstate staff, and strengthening capacity to assist workers and families with the grief and trauma of COVID-19;
  • $50.6 million to extend funding for the second part of the aged care worker retention payment; and
  • $9 million to the ACQSC to support the ongoing regulation of the aged care sector.

In response to questions from the media criticising Senator Colbeck, the Prime Minster stated that he has confidence in the Senator and that all of the measures that have been implemented and the funding that has been implemented should be attributed to Senator Colbeck. He further stated these measures have been what has kept the situation to a handful of facilities rather than many more, which were all at risk and could have been in the same position as those that have been hard hit. When asked if the extra funding was an acknowledgement that more needs to be done, the Prime Minster noted that this was all continuation of existing programs, not an acknowledgement that more needed to be done – the previous $850 million was not an under investment. The Prime Minister also announced there are further measures to follow in the October budget.

The sector's response to the pandemic is likely to continue to attract considerable public attention and regulatory scrutiny, particularly in Victoria. Providers should keep themselves apprised of rapid developments in regulation and government support in order to continue to provide high quality, clinically safe care to residents.

Note. This article was published on 11 September 2020 and reflects the status of Government directives and regulation at that time. Government directives in relation to COVID-19 continue to evolve, with new directions and requirements being introduced daily.