By locking down residents, it seems aged care providers are worried about claims for negligence. They should be more worried about being sued for illegal detention. Senior lawyer John W. Wallace reports.
Without legal basis, aged care facilities are treating older people like prisoners. Covid-19 has had a devastating effect on older people, who have much higher death rates from the virus than do younger people. It has also had a devastating effect on residents of aged care homes and their families.
But residents living in aged care facilities have brutally and unlawfully had their rights and freedoms taken away during this pandemic. These rights have not been taken away because of Covid-19, but because of a general fear of Covid-19.
Moreover, these rights have been removed by people who have no authority to do so.
All aged care facilities in Australia are regulated under Commonwealth legislation, which states that approved providers must:
provide care of a certain quality,
provide security of tenure,
respect the rights of residents, and
be accountable for the care they provide.
Providers must respect rights such as the right:
to be treated with dignity and respect,
to live without abuse and neglect,
to have control over their personal and social life, including where the choices involve personal risk,
to independence, and
to have a person of their choice support them.
These rights are part of what the Commonwealth law calls the “Charter of Aged Care Rights”.
When a person “enters” an aged care facility, they are deciding to make it their home. They have the right to use communal areas – TV rooms, libraries, dining rooms and courtyards.
They are free to receive visitors into their home but also free to leave the facility to shop, visit family and friends, or do whatever else they want to do.
While there might be lawful government restrictions on all of us from time to time (such as the lockdowns in various parts of Australia), those restrictions do not discriminate on the basis of age. Movements might be limited, but all people are allowed to do many things to survive and enjoy life – such as go food shopping, or exercise with another person.
Sometimes a person might be required by law to self-isolate because they actually have Covid-19, or because they have been determined by an authorised person under a statute to be a “close contact” of someone with the virus. In other words, their freedom of movement is curtailed by someone in government with lawful authority.
That type of determination might occur whether you live in an aged care facility or not.
But what if you are older and live in a facility, and the facility is simply scared of Covid? No Covid has entered the facility, but the approved provider is nervous. Can they prohibit movement of residents, and ban visitors, simply because they are afraid?
Aged care facilities banning visitors
The websites of numerous aged care providers state that a number – if not all – of their facilities are or have been “closed to visitors”, some since March.
In a number of facilities, residents have not only been banned from leaving the premises, they have been banned from leaving their rooms, even for weeks or months at a time. Sometimes they are banned from leaving their rooms simply because they have gone out of the facility briefly – to visit a doctor or go to the shops. This is happening regardless of whether anybody in the facility has Covid-19.
It is also happening when a case of Covid-19 occurred in the past – long enough ago to be no threat anymore – when all of our health research tells us that there would be no residual contagion in the building.
As the Guardian reported, elderly residents of Mercy Place, a Victorian aged care home, have been confined to their rooms for 66 days without visitors or trips outside for fresh air.
There is no general statutory provision or determination that authorises detention of aged care residents or prohibits visits at aged care facilities. In Victoria, a Direction limits visitors to a list of set purposes – for example, a resident can have a visitor, but only one person at a time, for “essential care and support…”. (This Direction changes from time to time.)
Even if we assume that these Directions are lawful, they don’t ban visitors, and they don’t detain residents in their rooms or even in the facilities. In fact I know of no blanket law across Australia that authorises the banning of all or nearly all visitors in aged care facilities. Nor is there any blanket law authorising the detaining of older people in their facilities, let alone in their rooms.
What gives aged care facilities the power to take away the basic human rights of residents by detaining them or prohibiting visitors for weeks or months on end? And what gives these facilities the power to breach the statutory obligations that all “approved providers” of aged care services are mandated by Commonwealth legislation to follow?
So far, I have found no such power. On the websites of the providers, they do not cite a legal authority. In the case of “outbreaks”, they may say they are doing it based on health expert or health department “advice”. Or else they just say they are doing it for everybody’s welfare.
Aged care facilities do not get the power to imprison people based on health “advice”. Nor do they get to determine what is in their residents’ welfare. Residents are meant to be in charge of their own welfare. And I’m sure not all residents consider it in their best interests to be banned from seeing family and friends.
Maybe providers are worried about Covid-19 sweeping through facilities. Maybe they are worried about being sued for negligence, as is happening with St Basil’s Aged Care. But there is something else they should be worried about.
False imprisonment/unlawful detention
Taking away a person’s right to move around or see family and friends is a significant thing.
Our common law protects these kinds of rights and has done so for many years. Unless there is a law that takes away these rights, then to remove these rights is so serious, that the law gives the right to the “victims” to sue.
In Australian law, false imprisonment is both a crime and a civil offence. One can be sued for false imprisonment, which occurs when someone is detained without lawful authority.
You can sue the person who falsely imprisons you. And a court can order that damages be paid by that person if you have been falsely imprisoned.
Providers seem concerned about the reputational damage of Covid-19 sweeping through their facilities, and they might fear being sued for negligence where they breach their duty of care to residents. For some providers it is far too late.
They will have to defend the negligence claims arising from their systemic problems such as inadequate infection control training and the failure to provide personal protective equipment. But fearing a negligence action does not give one the power to illegally detain people. Maybe providers should be more concerned about potential court cases resulting from the illegal detention of thousands of older people. These vulnerable people were not arrested or charged with, let alone convicted of, any crime. They were not sentenced with a term of imprisonment. They had chosen to stay in these facilities as their homes.
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