Replay: Legal Liability Risks for Care Facilities

As part of a Q&A Forum for Care organisations, titled “A Case Study of Risks from an Outbreak of COVID-19 in a Care Facility”, the fifth instalment of the series, hosted on Thursday the 14th of May, is now available for replay, with key summary notes included below.

Lyle Steffensen, National Practices Leader for Care Solutions at Marsh, interviewed Dr Melanie Tan and Anita Courtney from Russell Kennedy Lawyers. Melanie is a lawyer in health and aged care; she assists aged care providers with compliance and policy issues, and responses to the Aged Care Quality and Safety Commission. Anita specialises in providing advice to the age care industry with a focus on regulatory compliance.

The Q&A forum focused on Exponential Pandemic Growth & Business Interruption, Pandemic Recovery and Post Pandemic phase of the Pandemic Lifecycle.

LS: What are the compliance risks for providers arising from COVID-19?

AC: The major risks for providers when an issue like COVID-19 occurs is in terms of compliance. If facilities do have an outbreak, it is likely they will receive a sanction, which is always challenging and costly. In addition, there are obvious reputational issues. Another problem that you could face during an outbreak is that if you have a high turnover of residents or residents leaving the facility, this brings forth the issue of liquidity.

The risks arising from an outbreak have caused a lot of fear in the industry which is why we saw so many providers moving to an early “lockdown”.

A big challenge for providers in relation to COVID-19 is how to balance the need to protect residents with allowing them to see their family. This is an issue of dignity of risk and while the Quality and Safety Commission initially didn’t seem to object too much to lockdowns, this has changed recently and it now appears they will scrutinise this. The Commission has also indicated that it will be looking carefully at the care provided during this period, as well as the steps providers took while implementing a lockdown. For example, I anticipate they will be looking carefully at whether providers consulted with families and residents prior to implementing lockdown or if the decision was made without consultation. If there was no formal consultation, providers are at risk of being criticized of being forceful and acting without regard for the residents.

LS: What are the liability risks for the providers if they do get an outbreak?

MT: The main liability risk is being found liable in negligence - that is, causing harm by a breach of duty of care. In the context of dignity of risk and consumer choice, which are key to the Aged Care Quality and Safety Standards, the question is “How does one balance a resident’s competent choice against a risk of harm?”

In healthcare, people are faced with this choice all the time, and it is why we must exercise principles of informed consent. A competent person is entitled to make their own choice. It is not up to health or aged care providers to prevent a person from making a choice which may cause them harm, but rather advise them of this risk, and supporting them in making their own decision, if they have the capacity to do so.

Dignity of risk means a person is entitled to accept risks and make their own choices, with guidance and support from aged care providers- just as health care providers have a duty of care to warn a patient of risks of treatment, and make appropriate recommendations for the patient to decide. This is how duty of care can support dignity of risk.

The other important thing to remember is that duty of care is not about providing optimal care. In reality, we can only know what optimal care might have been with the benefit of hindsight, as nothing is certain in medicine – especially when we understand relatively little about something such as COVID-19. Rather, duty of care is about providing reasonable care on the basis of information and knowledge at the time. This means it is very important to stay up to date with current local guidelines - and keep records of those guidelines, as these may change and later become inaccessible. It is important to be able to demonstrate what information and guidelines were relied on in making a decision – hence, the importance of good record-keeping.

Part of an aged care provider’s duty of care (in supporting dignity of risk or otherwise) is to take reasonable measures to mitigate risk of harm. For example in the context of COVID-19, when visitors come to the facility, they should ensure that additional infection control measures are in place. Whether there was a breach of duty must be considered in the context of the particular circumstances, and ultimately it is a decision for the court. Duty of care is to be assessed on a case by case basis, for example a full lockdown may be appropriate from some facilities and not for others.

In summary, the main liability risks for providers are:

• Claims in negligence: A resident, family member or even visitor could sue a provider if they contract COVID-19 due to a breach of duty of care. They would have to prove there is a compensable injury and that the breach of duty actually caused the injury.
• Professional conduct complaints: Staff can be exposed to professional complaints and in particular, health practitioners may be subject to regulatory action by AHPRA if their conduct deviates from a certain standard.
  

LS: What are your thoughts on the challenges between federal government legislation and state government legislation in reference to residents wanting to visit family?

MT: Everything should be read together, but the important thing is consultation, communication and documentation of the process. The process of documentation is just as important, if not more important than the actions that are decided upon.

AC: It is important thing to keep in mind, that when it comes to the directions that these are being issued at a state level, rather than at the federal level, it is an offence not to comply with those directions. For example residents might want 10 visitors coming in a day, under dignity of risk they are entitled to that, however when the state and territory guidelines are read, it is considered illegal to have 10 visitors. This takes precedence.

LS: What are your thoughts on the flu vaccination requirements?

AC: In terms of the actual rules on the flu vaccinations, in short the rule is that if the flu vaccination is available to a person, then they are not allowed to enter or work at an aged care facility if they have not had the vaccination. The Department of Health has indicated that exceptions may be granted for medical contraindications – eg if someone has had previous anaphylaxis following a vaccine or has experienced Guillain-Barre Syndrome from vaccines. However, it depends on the State as to what exceptions apply.

Some people may not want to take the vaccination due to cultural or religious reasons and not allowing someone to work for cultural or religious reasons could result in a fair work claim. Ultimately, the way those directions need to be read is in light of the exceptional circumstances within this pandemic.

In terms of the requirements for children there are rules that state children under 16 cannot visit a facility whether they are vaccinated or not unless it is an end of life situation for a resident within the facility.

LS: Can you tell us about the new code of conduct and how you see it working for providers?

MT: It is a voluntary code; the aim is to try to unify the approach across Australia. The Code is said to apply during ‘the period of COVID’, after which usual practices will resume – although the period of COVID is not defined. The Aged Care Quality and Safety Standards and Charter of Age Care Rights continue to apply in conjunction with the Code.

The Code takes a rights based approach, but recognises that individual’s rights must be balanced with the welfare and rights of others. Primarily, the view and wishes of the resident must be fulfilled, so to that extent the Code is not inconsistent with the Standards.

In terms of application, ‘visitors’ have been defined as family, friends and religious advisers of the residents’ choice. The Code also suggests visits should be a minimum of 30 minutes and a maximum of 2 hours. Longer visits are allowed in three circumstances:

• At the end of life of the resident
• If there is a clearly established pattern of involvement of the visitor in providing care to the resident (preferably documented)
• If the visitor has travelled a long distance to visit the resident, with a prior agreement made with the provider.
  

Importantly medical staff, legal representation/advisers and private contractors are not considered visitors; they are considered workers and must comply with state directions and individual providers’ policies.

The Code does say that aged care homes may regulate the overall number of visitors in order to minimise their risk. However, it is silent on the issue of lockdown other than by suggesting that visitors may be excluded all together in the case of an outbreak - without saying they should be.

Key themes that occur in the code:

• Consultation and Communication
• Flexibility and Compassion
• Proportionate and Risk Based approaches
  

Principle 13 of the code states that providers will vary their own responses to COVID-19 as risks change within their local community. This means there is no blanket rule and responses need to be appropriate and proportionate for the provider’s particular circumstances.

LS: What issues do you see coming up for providers as things return to usual business?

AC: The Quality and Safety Commission has given the industry a bit of a reprieve over this period by minimising the number of visits. As facilities return to normal operation it is expected there will be an increase in regulatory activity. The Commission will be heavily scrutinising the quality of care delivered and the issues surrounding lockdowns and how it was managed. One of the things providers should do if they did implement a lockdown or if they are still in a restricted visitation regime, is go through the consultation now if they have not previously.

LS: In terms of the infection control procedures and duty of care, have you got any thoughts about what to do when business goes back to normal?

MT: Ensure you are up to date with current guidelines and be aware that these guidelines may change. Organisations need to act reasonably in the context of their particular circumstances. They should avoid simply being reactive in their decision-making and ensure processes are properly considered, and documented. Seeking appropriate advice is always recommended.

If you would like additional information on Legal Liability Risk Issues for Aged Care Providers, please contact National Care Solutions Leader, Lyle Steffensen or reach out to Dr Melanie Tan and Anita Courtney directly.

LCPA: 20/221