The Queensland Government has released changes to visiting requirements at aged care facilities under Residential Aged Care Direction (No.12) (the Direction) that came into effect on January 15. The new direction comes as the Government and the aged care sector continue to grapple with Queensland’s biggest outbreak of COVID-19 to date.

This blog provides a summary of the new requirements in the direction and discusses how they intersect with the latest version of the Industry Code for Visiting in Aged Care which was published on 22 December 2021 (the Industry Code).

Changes implemented by Residential Aged Care Direction (No.12)

Approved providers should be aware of the following changes implemented under the new Direction:

• The concepts of domestic hotspot areas, interstate exposure venues, interstate areas of concern and border-zones have now been removed from the Direction. However, the concept and requirements around access to facilities for persons who have been to a ‘Restricted Area’ still remain in force pursuant to any areas listed in the Queensland COVID-19 Restricted Areas (No. 30) direction. There are currently no ‘Restricted Areas’ in Queensland.
• For international arrivals, there is now an exception to the rule that a person who has arrived in Australia within 14 days preceding entry cannot enter a residential aged care facility. Namely, a person may enter a facility if the:
• person’s presence at the premises is for the purposes of an end of life visit; and
• person has been granted an exemption by the Chief Health Officer, Deputy Chief Health Officer or their delegate for an end of life visit.
• While not a strict requirement, the Direction makes it clear that approved providers may require a person who is entering a facility on the basis of an exception to take reasonable steps to reduce the risk of COVID-19 to residents. This includes for instance, use of appropriate personal protective equipment or evidence of a negative COVID-19 PCR Test result by the person in Queensland within the previous 72 hours.
• The introduction of this additional wording supports providers to implement risk mitigation measures that visitors must comply with.

With the current outbreak in Queensland expected to peak around the start of February, we expect that the Queensland Government may make further changes to the residential aged care direction in the coming weeks. We will continue to monitor the directions and provide updates as necessary.

Industry Code for Visiting in Aged Care

We have recently received a number of queries from approved providers regarding how to manage the requirements expressed in various Public Health Directions and Orders and the requirements of the Industry Code, noting there can be inconsistencies between the two and impracticalities in some aspects of their application. For example, the Industry Code suggests that while an outbreak is in the process of being confirmed all residents and staff must be tested, but the lack of available testing (either PCR or RAT) makes implementation very difficult.

Approved providers should be aware that:

• the Public Health Directions and Orders in each State are law, and residential aged care facilities must comply with the requirements;
• while the Public Health Directions and Orders are law and compliance is paramount, approved providers should also comply with the Industry Code. The Industry Code represents an agreed industry approach, ensuring that residents continue to have ongoing access to visitors during the COVID-19 pandemic whilst minimising risk and spread of COVID-19 within the facility. The Industry Code emphasises the importance of ensuring ongoing access to visitors including visitors at end of life and prioritising access to visitors depending on the level of infection risk within the facility;
• the Aged Care Quality and Safety Commission will make reference to the Industry Code when assessing an approved provider’s compliance with the Aged Care Quality Standards;
• the Industry Code emphasises that restrictions on visits should be as least restrictive as possible, proportionate and in place for as short a time as possible but in keeping with the requirements set out in the Public Health Directions and Orders and the Industry Code;
• the Industry Code acknowledges that while a RACF decision about the level of visitor access should be based on advice and directions from the relevant state and territory government, providers should retain responsibility for ensuring safe visitation and the code recommends differing levels of public health and social measures (PHSM) based on the level of risk;

For example:

• Green level restrictions – low PHSM – no geographic areas of concern and some level of COVID-19 in transmission in the community;
• Orange level restrictions – moderate PHSM – state or Commonwealth governments have declared that the visitor is from or the home is in a geographic area of concern;
• Red level restrictions – stringent PHSM, an outbreak in the home – COVID-19 positive residents or staff (where at least one staff member may have exposed the home during the infectious period). The home should commence red level restrictions while an outbreak is being confirmed including testing all staff and residents, and recommending residents isolate in their rooms. If an outbreak is confirmed red level restrictions should last a further 14 days after the last positive result – again this period could be extended where there are delays in test availability or receiving testing results.
• the Industry Code states that a resident should always be allowed to have access to at least one visitor – an ‘Essential Visitor’, regardless of the COVID-19 outbreak status (subject to general restrictions, eg excluded visitors). This then poses the question of how the concepts of green, orange and red level restrictions and ‘Essential Visitors’ intersect with the changing State Public Health Orders and Directions and in the event of a conflict between the two – what approach approved providers should adopt. For example:
• If a State Public Health Order and Direction changes and requires that a facility not permit visitors into the facility (as it has in the past in New South Wales and Victoria), how does a facility ensure residents have access to an Essential Visitor without breaching the State Government Order?
• If a resident’s potential visitor (including an Essential Visitor) at a particular point in time does not meet the requirements of a State Public Health Order and Direction for entry to a facility (eg they have recently tested positive to COVID-19 or are awaiting the results of a COVID-19 test) – how do approved providers manage the requirements of the Industry Code, which in essence provides that a resident should always have access to at least one visitor?

We have outlined below how we suggest approved providers approach these questions.

We appreciate that the Industry Code may pose some inconsistencies with the State Public Health Directions and Orders in relation to the steps an approved provider should follow when managing COVID-19 risk, particularly in relation to visitor access. We suggest that the most risk averse approach for providers is to:

Step one: ensure at first instance that your facility has systems and processes in place which are compliant with the State Public Health Directions and Orders, as they represent the law.

Step two: ensure that you can demonstrate you have considered and implemented systems and processes which are consistent with the Industry Code insofar as those systems and processes remain compliant with the State Public Health Directions and Orders.

Step three: consider issues that arise on a case by case basis, first with reference to the State Public Health Directions and Orders and also the Industry Code wherever possible, noting that the State Public Health Directions and Orders will take precedence. If a decision is made to restrict visitors, ensure other options have been considered and the restrictions are in place for the shortest possible timeframe. Document your decision and the reasons for the decision and communicate with any interested parties using open disclosure.

We acknowledge that contemplating and implementing systems and processes for compliance with two sets of requirements where inconsistencies exist is challenging for approved providers, especially in a climate where resources are already strained after two years’ of pandemic response and keeping residents safe.

Should you require any further information about State Public Health Directions and Orders or the Industry Code, please contact the Health, Aged Care and Retirement Villages team.

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