Whilst vaccinated Australians in general have now begun to enjoy greater freedoms, emancipation from restrictions on movement and association is yet to be materialised for the thousands of older Australians living in residential aged care facilities (RACFs).
It’s a situation that is dire, with harms borne by ongoing restrictions, in place despite no presence of COVID, causing lasting damage to the health and wellbeing of residents.
Aged Care News has spoken to Carolyn, whose surname and specific location has been withheld for her family’s safety.
She says her mother, who lives in a residential aged care facility, has lost the ability to walk over the last four months due to the extended lockdowns.
“She has barely had access to fresh air in four months except when allowed out for essential medical visits,” Carolyn says.
Although many states have begun winding back their restrictions, Carolyn says that many facilities, including the one housing her mother, are taking the law into their own hands.
“The Chief Health Officer and Government are doing nothing to make sure RACFs don’t go beyond the orders with the restrictions, and it seems the [providers] are terrified of reputational damage if COVID gets in.
“The workload of staff is massively increased without the important presence and support of loved ones, and the residents themselves are depressed and lonely,” she says.
Carolyn is not alone in her anguish.
Lockdown conditions in residential aged care was the last straw for Maria Sampey, from Melbourne, who completely withdrew her 99-year-old mother from residential aged care this year.
Sampey tells Aged Care News that her mother, who lives with dementia, has been a victim of multiple instances of negligence and abuse over the years.
But it was the basic cruelty of being deprived a little sunlight on her skin that spelt the end to Sampey’s faith in the system’s capacity to care for her mother.
“I went to the lounge room and there was a bit of sun coming through the windows, so I put my mother next to the glass and about 10 minutes later, the manager comes down and says, ‘what are you doing here?’”.
“I said ‘I’m trying to get a bit of sun for my mum’,” Sampey says.
“And they said, ‘No, a condition of you entering the nursing home and seeing your mum is that you spend the time in your mum’s room.”
Sampey says she is not convinced that protecting against the risk of COVID was the priority in this instance.
“The reason they don’t like you walking around is so that you’re not observing whether they have staff on the floor, what they are doing or anything on that.
“If you’re totally in your mother’s room, then you don’t see all the problems.”
Sampey concludes that restrictions on movement in aged care compensate for underlying deficits in staffing levels.
“They’re not allowing any residents to go out in the courtyard, and the reason being is because they don’t have enough staff… if there’s a fall or something out there.
“So everybody has to stay inside the building and in their rooms, And it’s just awful, staff don’t have time to talk to them…
“They’re all crying. Their mental health is really suffering.”
RACFs taking the law into their own hands
The national policy landscape is fragmented but, common to every state, is an ongoing denigration of elders’ basic human rights.
Government policy across the country has largely provided RACFs with the impression that they have legitimate power over residents’ freedom of movement and association.
Take the Western Australian Government’s guidelines, for example:
“A facility may regulate the overall number of visitors to minimise the risk of the introduction of COVID-19 into an RACF and may be required to replace in-person visits or in-room visits with window visits or additional ways to connect in response to any COVID-19 outbreak in the area in which the RACF operates.”
Furthermore, peak bodies from the aged care industry, including those purporting to represent the rights of residents, distributed a set of guidelines regarding visitation rights in 2020.
On the surface, this document appears to have authority.
However, recommendations coming out of these bodies have no sound legal basis, with legal experts warning that facilities enforcing overly paternalistic policies may be legally liable for false imprisonment of elders.
Fiona McKenzie, a Victorian barrister with expertise in administrative law, writes on the issue at adminlaw.com.au.
The site is a wealth of infromation for residents and their families struggling to understand their legal rights in the face of aforementioned restrictions.
“Basically, if someone detains you, they need to have a legal power to detain you,” McKenzie writes.
“A prison detaining convicted criminals has such a power. A police officer who lawfully arrests you has such a power. But a facility which provides you with shelter does not, generally speaking, have such a power.
“And if they do, they have to point to it in answer to a claim for false imprisonment.”
Need for litigation
Aged-care Legal Advocacy & Reform Matter (ALARM) is a Victorian organisation established in October 2020, to promote the welfare of aged care residents in Australia through legal advocacy.
“Aged care residents, their families and loved ones, need to be informed that residents have a voice, have legal rights,” ALARM chair Dr Bryan Keon-Cohen, AM QC, says.
Craig Gear, CEO of Older Persons’ Advocacy Network (OPAN), says that their organisation is getting hundreds of calls a week lately regarding the issue.
”The ability for older people to have choice and control over their care and the personal aspects of their life, including their social life, to go and visit people, is really, really important,” Gear says.
“That’s enshrined in the Charter of Aged Care Rights.”
At face value, restrictions against freedom of movement and association go against multiple tenants of the charter, which emphasise the right of residents to maintain independence and control over their social life.
“And it includes when those choices may involve some level of personal risk,” Gear says.
“There is nothing in life that is without some level of risk… so providers need to be proportionate about what their level of risk is in their local community … because the risk of not allowing people to [socialise], and the impact on their mental wellbeing, is much higher.”
Legal recourse for violation of the charter, however, is no straightforward matter.
Anna Willis, solicitor and project manager at ALARM tells Aged Care News that the charter’s rights are not enforceable in themselves.
“A resident is left to take action in civil law,” she says, prosecuting for a breach of contract or tort, “which is difficult as breaches need to meet threshold tests.”
Furthermore, Willis adds that: “Breaches of the Aged Care Charter of Rights goes to the Health Department to enforce in penalties in terms of accreditation and funding.”
Revision of the industry code
Gear notes that a new industry code will be released in the next couple of weeks, which will advise the need for a greater emphasis on residents’ human rights.
“[It] will give clear, sector endorsed guidance that looks at the public health orders and looks at the level of risk and balances that with the need for older people to exercise their rights to have visits and also egress from an aged care facility to be part of the community as well,” Gear says.
“But it’s really important in all this that it’s actually the older person that’s kept at the centre of this, as in: they are spoken to and their families have been spoken to about what they want.
“There will be some older people who say, ‘look, I’d rather not have un-vaccinated people coming into contact with me and they’re absolute right to do that.
“[But] that has to be balanced with the rights of other people that are there saying, ‘I would like to go for a walk around the block. I would like to see my grandchildren. I would like to… re-engage with social outings, and those things have to be able to be done.”