The Commonwealth, State and Territory governments have placed restrictions on visiting residential aged care facilities in order to protect residents from contracting or coming into contact with COVID-19, a move that will prove critical in managing the health and safety of residents as we also confront the imminent influenza season.

Although the initial announcement by Commonwealth was unclear as to whether mandatory influenza vaccinations would apply broadly or only to aged care workers, and also whether it would apply across the aged care sector, the States and Territories have now operationalised the mandatory vaccination requirements, by way of Directions issued pursuant to public health legislation.

The relevant Directions made by the States and Territories can be found below:

• Queensland – in force until 19 May 2020
• Victoria – in force until midnight on 13 April 2020
• New South Wales – in force until 22 June 2020
• Western Australia – in force for the duration of the public health emergency.
• South Australia – in force for the duration of the public health emergency.
• Tasmania – in force until midnight on 15 April 2020
• Australian Capital Territory – in force for the duration of the public health emergency.
• Northern Territory – in force and will be in force until revoked or until the end of the public health emergency relating to COVID-19.

The Directions made by each of the States and Territories are broadly similar, and have been dealt with together in this update, with only slight jurisdictional differences existing in Tasmania and South Australia.

Residential aged care facilities

The Directions deal with access to 'residential aged care facilities'. Residential aged care facilities, for the purpose of the Directions, means:

'a facility at which accommodation, and personal care or nursing care or both, are provided to a person in respect of whom a residential care subsidy or a flexible care subsidy is payable under the Aged Care Act 1997 of the Commonwealth'.

Unlike previous guidance, which applied to 'aged care facilities', the Directions offer clarity, defining the term and making it clear that this is a measure only intended to apply to residential aged care.

Visitors to residential aged care facilities

The Directions place a general restriction on visitors entering residential aged care facilities unless one of the following exemptions apply:

• the person is an employee or contractor of the residential aged care facility;
• the person is at the residential aged care facility to provide goods or services necessary for the effective operation of the facility (either paid or on a voluntary basis);
• the person is at the residential aged care facility for the purposes of providing health, medical or pharmaceutical goods or services to a resident of the residential aged care facility (whether paid or voluntary);
• the person is at the residential aged care facility for a 'care and support visit' to a resident of the facility on a particular day and is the only care and support visit made to the resident on that day;
• the person is at the residential aged care facility for the purpose of end of life support;
• the person is at the residential aged care facility for emergency management or law enforcement; or
• the person is a prospective resident of the residential aged care facility. 

'Care and support visit' is uniformly defined in the Directions as meaning a visit of no more than 2 hours duration, limited to a maximum of two people and for the purpose of providing care and support to the resident.

Importantly, the above exemptions are subject to the following requirements, in which a person must not enter or remain on the premises of a residential aged care facility, regardless of whether they fall into the above categories:

• during the 14 days immediately preceding entry, the person arrived in Australia from a place outside Australia, or, has come into contact with a person who has a confirmed case of COVID-19; or
• the person has a temperature higher than 37.5 degrees or symptoms of acute respiratory infection; or
• the person does not have a current (or 'up to date' depending on the Direction) vaccination against influenza, if such a vaccination is available to the person (note the jurisdiction differences in South Australia, discussed below); or
• the person is aged under 16 years, other than in circumstances where the person's presence at the premises is for the purposes of end of life support for a resident of the residential aged care facility.

As is apparent, significant restrictions have been placed on the ability to visit residential aged care facilities. This includes an almost blanket ban on visitors under the age of 16 years, and significant restrictions on other visitors who may now only attend for the purposes of care and support. A resident is not permitted to more than one care and support visit in a day, and these visits cannot exceed beyond two hours and must be limited to a maximum of two people.

Additionally, there is an implied requirement that operators of residential aged care facilities will temperature test visitors to the facility (to assess whether their temperature is higher than 37.5 degrees), and potentially assess their physical state for symptoms of acute respiratory infection.

Mandatory influenza vaccinations

The Directions state that a person who does not have a current (or 'up to date' depending on the direction) influenza vaccination must not be permitted to enter or remain on the premises of a residential aged care facility.

The Commonwealth had previously indicated that the requirement to have an influenza vaccination would commence on 1 May 2020 however, the Directions issued by the States, suggest that an 'up to date' influenza vaccination is required, suggesting this Direction might have retrospective application.

Importantly, the Direction relates to a 'person' not only aged care workers. It will therefore extend to any person entering the premises including (but not limited to) visitors, contractors, volunteers, GPs and allied health providers.

In most jurisdictions, the Directions contain a carve out that the influenza vaccination must be 'available to the person'. It is possible that the intention of this carve out is to exempt those people, who for genuine medical reasons, are unable to access the influenza vaccine.

The Tasmanian Direction contains a more specific carve out, that the person must have a 'medical recommendation against the administration of the vaccine to the person' to be exempt from the requirement to be vaccinated.

We note that there is no similar carve out in South Australia. In that State, it appears that if the person is unable to receive an influenza vaccination for genuine medical reasons, they will not be on the premises of the residential aged care facility.

Key tips for implementation

The obligations contained within the Directions relate to both the person entering the facility and the operator. It is a requirement that the operator of a residential aged care facility take all reasonable steps to ensure that a person does not enter or remain on the premises except in the circumstances permitted by the Directions. It is likely that in any assessment undertaken by the Aged Care Quality and Safety Commission, an operators approach to these Directions will be scrutinised when considering compliance with Standards 3 and 8.

These Directions are in force immediately and will likely be reviewed and extended as the nation grapples with the unpreceded challenge of COVID-19.

It is critical that operators take immediate steps to ensure compliance with the Directions. We recommend that providers in the Northern Territory also comply with these Directions, notwithstanding that they are not yet operationalised in that jurisdiction.

Please do not hesitate to contact us, if we can assist you in managing and responding to the evolving situation.