Messy mix of laws, regs and codes make aged care visits a legal minefield

If you think there is confusion across this country about whether or not children should go to school, think about those people who want to visit a family member in an aged care facility. The federal and state and territory governments are variously involved in regulation of the subject.

Currently, in considering the welter of words circulating in the media and from the governments of this country, the issue is a marinating morass. That’s ironic given, it appears, everyone involved just wants to do the right thing or even the best thing for all concerned.

But, just consider the shifting aged care visiting landscape at the moment. Some providers, out of an abundance of caution, are excluding all people except for essential staff. The government says they shouldn’t or, as the prime minister succinctly puts it, “Stop it!”, but no government has made a law about it.

Instead, the governments have chipped away at the edges in making laws about who cannot visit, namely:

• Visitors who have returned from overseas in the last 14 days
• Visitors who have been in contact with someone confirmed to have Covid-19 in the last 14 days
• Visitors who have a fever or symptoms of a respiratory illness
• Children under 16 except in exceptional circumstances and
• From May 1, 2020, any visitors who have not had a flu vaccination.

As opposed to laws about who is not entitled to visit, there are no laws about who is entitled to visit. Instead, the governments have chosen to entreat age care providers to follow government health guidelines, not laws. So we have a mongrel collection of law and guidelines.

This is a recipe for uncertainty (the lawyer’s dread) which begets frustration which begets, ultimately, distress. Those emotions are shared by providers and families alike.

But what does the law say?

So what is the law about a provider’s right to exclude people from visiting apart from those persons above?

Aged care is sometimes described as private lives played out in public places. That is a legal misnomer. Amongst many other things, aged care facilities are not public places. They exist on private property.

Just like you and me, as a private property owner, subject to any law restricting the rights that come with property ownership, a provider can prohibit or restrict people from coming onto their property or, as the law calls it, trespassing. Indeed, providers have been doing this sometimes well before Covid-19 raised its ugly head.

The only way this right can be taken away is by a law. Governments have not chosen to make such a law as yet.

Of course, providers have to balance the legalities with the realities or, more specifically, between restrictions and restraints on visitors. Excluding people from seeing their family members is a tough call for a provider and for the family. I am convinced that providers would only do so in a genuine attempt to balance the other perennial scales of aged care – their duty to the residents’ welfare and their duty to respect the wishes of the residents and their families.

It is hard. No one should be excoriated for coming down on one side or the other in this vexed balancing act.

Governments need to be less hotchpotch about their approach. A bit of law mixed with a raft of guidelines will not work or give anyone involved any sense of certainty or satisfaction. In fact, this mix just leads to more confusion and distress.

I think it is a useful development that, now, both the aged care provider and consumer representatives have adopted a uniform code on access to aged care facilities. It is called the ‘Industry Code for Visiting Residential Aged Care Homes During Covid-19’ and it appears that it has the government’s support.

However, the code is simply a recommended ‘approach’ to determining the appropriate visiting rules. It will still be a case of every facility adopting its own best practice taking into account the raft of laws, principles, guidelines, the Charter of Aged Care Rights and now a code of conduct. That will be a hard and unenviable task for aged care providers. It will not lead to consistency between facilities and, as a result, may still leave residents and their families frustrated.

At least it will give everyone a reference tool against which to assess the appropriate practices for every facility, I hope.

IMPORTANT LEGAL INFO This article is of a general nature and FYI only, because it doesn’t take into account your financial or legal situation, objectives or needs. That means it’s not financial product or legal advice and shouldn’t be relied upon as if it is. Before making a financial or legal decision, you should work out if the info is appropriate for your situation and get independent, licensed financial services or legal advice.