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Aged Care – When too much law is too much law


I know we are living in distressing and uncharted times in aged care, amongst many other areas of life.

The release of the draft Aged Care Visitor Access Code last week is a positive sign of trying to achieve some uniformity in the balancing act of protecting residents, staff and families.


However, I cannot but look at it from behind a lawyer’s eye. What do I see? I see a lawyer’s picnic in the form of a complex web of, let’s call them collectively, directives, that could do our heads in trying to find the right decision in any particular case.

Here’s why:

  • The issue of access to aged care facilities will now be subject to a collage of laws, or law type instruments in the form of Standards, Rights, Principles, Directions, Guidance, Advice and, shortly, a Code
  • In no particular order these are:
    • Aged Care Quality Standards
    • Quality of Care Principles
    • Charter of Aged Care Rights
    • Guidance from the Aged Care Quality and Safety Commission (ACQSC)
    • Guidance from the Australian Health Protection Principal Committee (AHPPC)
    • Advice from the Communicable Diseases Network Australia (CDNA)
    • Directions from the Chief Medical Officer or Chief Health Officer in the relevant State or Territory
    • Residential Care Visitor Access Code (draft)
  • Further, the draft Code makes it clear that it will not affect in particular the application of the Standards and the Rights above.

Here’s a scenario:

  • You are the manager of an aged care facility with two cases of residents with Covid-19 who are in isolation in the facility and your facility has been in lockdown – no visitors;
  • The Code is implemented;
  • You receive a request from a family member to visit one of those residents.

How do you respond? A lawyer would say consider all of the above before reaching your decision, easy.  Not.

Unless you go through some scenario settings and exam questions, and reach, not so much the right, but a well-reasoned answer, you will have more trouble on your hands.

It’s time to do some exams. This time, however, you’re allowed to cheat and get some advice before answering.


Blog Post By: Joanne O’Brien


First Published By CRH LAW