It has recently been revealed that WorkSafe Victoria has written to at least 30 aged care providers in relation to approximately 50 aged care homes requiring that they prove that they did not breach occupational health and safety laws during the devastating COVID-19 outbreaks experienced in 2020.

Among the aged care providers contacted by WorkSafe Victoria were Estia Health Aged Care, Japara Healthcare, and Benetas Aged Care. All of which have been served with notices and advised that if they have contravened workplace laws and it is subsequently established that their contraventions led to the deaths of residents in their care that they will face charges which could result in fines of up to 16.5 million dollars or 25 years jail time for executives.

It is understood that WorkSafe Victoria will conduct a formal investigation, with the notified facilities now being required to prepare and provide information concerning who was responsible for infection control, contact tracing, the adequacy of personal protective equipment, and planning for surge workforces. Additionally, staff rosters, outbreak management plans, training records and lists of all residents and staff have also been requested by WorkSafe Victoria.

Should aged care providers experience similar outbreaks in South Australia, SafeWork SA would likely take a similar approach of auditing businesses in an attempt to prevent widespread issues within the industry.

On 23 November 2021, South Australia reopened its borders and accepted the inevitability of COVID-19 entering the state as evidenced by the recent cases of community transition which has those within the aged care industry on high alert to manage the expected spread of the virus through the aged care community.

Control measures

ISO 45001 (the international standard for occupational health and safety) recommends that organisations adopt the hierarchy of controls to reduce or control risks. The steps, in order of preference, are to:

  1. eliminate the risk;
  2. substitute the risk;
  3. isolate the risk;
  4. engineering controls;
  5. administrative controls; and
  6. personal protective equipment.

The first four steps control the risk, and the last two steps control the people.

The significant advantage that vaccination has as a control measure is that it sits within the top 4 levels as a control measure that controls the risk rather than the people. Put another way, businesses that have vaccinated workforces do not need to concern themselves with ongoing compliance in order to ensure it remains effective as a control measure (unlike mask-wearing and hygiene).

From 17 September 2021, aged care workers have been required to have at least one dose of a COVID-19 vaccine approved or recognised by the Therapeutic Goods Administration (TGA) and have evidence of a booking to receive a second dose. From 6 December 2021 all residential aged care workers, volunteers and visitors must provide evidence that they are fully vaccinated unless they have a valid exemption or are involved in an emergency response at the facility. However, experience interstate and from other countries has demonstrated that vaccination alone is an insufficient control measure to prevent the virus from being transmitted.

As such, all aged care facilities must review their risk assessments to ensure that vaccination requirements along with their other control measures adequately address the risk of the virus being transmitted to residents and, when a case is detected, the risk of the virus then spreading to other residents.

While the use of over-the-counter COVID-19 Rapid Antigen Test (RAT) kits is currently prohibited in South Australia, this is likely to change as community transition increases and aged care facilities should consider the use of these tests in circumstances where an “index” case, being those first infected at an aged care facility, is detected. The immediate use of these tests ought to allow the facility to very quickly determine whether it’s likely to be an isolated case or a more widespread infection.

Any person who meets the definition of an ‘officer’ under the Work Health and Safety Act 2012 (SA) (‘the WHS Act’) should ensure they properly understand their obligations under section 27 of the WHS Act and that they can demonstrate that they have adequately considered the risks posed to their Aged Care Facility(ies) and ensured that adequate control measures are in place. Officers should ensure they remain up-to-date with the most recent and relevant aged care industry guidelines. Reckless conduct by an officer or a failure to comply can result in severe penalties.

Responding to an infection

The Emergency Management (Residential Aged Care Facilities No 43) (Covid-19) Direction 2021, which came into effect on 24 November 2021, states that, upon a case being detected within the facility, residents may only leave the facility in prescribed circumstances and must otherwise be quarantined and segregated from other residents.

This is a departure from the previous practice of automatic transfer to hospital for all COVID-19 positive residents and means that aged care facilities will need to ensure that they have not only adequate resources, policies, and procedures in place to ensure early detection of any cases of COVID-19 but also the ability to provide appropriate care for any cases of COVID-19 that do not require hospitalisation.

The Guideline for management in Residential Aged Care Facilities in South Australia states that “The decision to transfer cases from the RACF to hospital should be made case-by-case”, Section 46 of the WHS Act requires consultation between all duties holders. In planning how to respond to a case, aged care facilities should identify which persons will be involved in determining whether to transfer a resident to a hospital and how that decision will be made.  Some factors that may need to be considered include:

  • the resources available to treat a COVID-19 positive resident;
  • proximity to a hospital able to treat COVID-19 patients; and
  • the risk profile of each resident having regard to age, co-morbidities etc.

Obligations of workers and visitors

Private hospitals within South Australia, including St Andrews, Burnside, Ashford, and Calvary, have advised that only those who are fully vaccinated against COVID-19 will be able to visit inpatients. Children under the age of 12 who cannot be vaccinated are included in this direction but may be allowed to visit an inpatient in end-of-life circumstances. Aged care providers will, unfortunately, have to walk a fine line in considering the balance between the quality of life of their residents - which is significantly impacted when visitation is restricted or not permitted - and the risk posed by allowing unvaccinated visitors onto the premises.

Aged care facilities should also take every opportunity to remind workers and visitors of their obligations under sections 28 and 29 of the WHS Act. Workplace health and safety is not just the obligation of the business, it is an obligation for any person involved in the business. As such, any worker or visitor must take reasonable care to ensure that their actions do not adversely impact the health and safety of other workers and residents when they are on site. This means not only being vaccinated (provided the relevant person can be vaccinated) but also adhering closely to any reasonable directions given by the aged care facility to manage the risk of COVID-19, such as wearing masks, hygiene, and maintaining social distancing.

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

For more information, please contact...

Nicholas De Pasquale

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