The COVID-19 pandemic has required extensive changes to the way we live. Containment measures take on additional importance in seniors communities such as retirement villages, where elderly populations live in close proximity to one another.
In the early stages of the outbreak, Government restrictions on social and business activities were rapidly superseded by more stringent restrictions. These measures appear to have now found their level, for the time being.
This article examines the current Queensland response and how it applies to retirement villages.
Unlike aged care facilities, Government intervention to date has not been directed specifically towards retirement villages. While retirement village operators may be guided by the restrictions applying to aged care facilities, particularly where residents receive a relatively high level of care within the village, they are not bound by them.
Accordingly, the most relevant pandemic-specific restrictions for retirement villages are those applying to the community generally. Given the generic wording of these public health directions, the prudent approach is to assume they apply to retirement villages.
Retirement village operators should also consider their duty of care to their residents at general law. While the scope of this duty is ill-defined (particularly in the independent living context), it would be prudent for operators to assume they are subject to such a duty and that it requires them to take all reasonable steps to prevent harm to their residents. While a detailed examination of the law of negligence is beyond the scope of this article, the extent of a duty of care owed by one person to another generally takes into account the likelihood and severity of the relevant risk and the cost and inconvenience of various measures that could be taken to avoid it. In the current circumstances, we suggest that operators should adopt all measures reasonably available to prevent a COVID-19 outbreak within their villages.
Retirement village operators will of course be subject to other legal obligations, such as to provide their employees with a safe working environment. An examination of these obligations is beyond the scope of this article.
Under the Public Health Act 2005 (Q), the Chief Health Officer has imposed a number of directions which apply to the community in general. The two with the most relevance for retirement villages are summarised below.
This direction regulates the movement and congregation of persons and includes the following measures:
This direction prevents the operation of certain businesses, activities or undertakings, subject to some exceptions. Those businesses, activities or undertakings are described in the direction as “non-essential” and include:
Based on these directions, DHPW has issued guidance to retirement village operators on its website, as follows:
The Queensland Chief Health Officer has also made a direction applying to aged care facilities in Queensland, being the Aged Care Direction (21 March 2020).
As noted above, this direction is not binding on retirement village operators. However, depending on the type of village and level of care provided to residents, village operators may choose to have regard to this direction in formulating their response to the pandemic.
In brief, the Aged Care Direction places restrictions on visitors to aged care facilities, which are generally limited to:
Also, a person must not enter or remain at a residential aged care facility in Queensland if:
The above principles raise a number of operational issues for retirement village operators.
Sales of new rights to reside can continue. However, inspections must be conducted by private appointment only.
For the time being at least, operators should introduce special conditions into their residence contracts, enabling them to verify before settlement whether a new resident has or may be at risk of having contracted COVID-19 and, in this event, defer settlement until the new resident is no longer capable of infecting other persons.
The public health directions referred to above, while sensible, do not adequately take into account that operators are usually contractually obliged to provide these facilities to residents.
We would hope that common sense will prevail in these difficult times, and residents will accept that the temporary closure of village facilities and restrictions on their movements are done in the best interests of their health and safety. However, potential remains for residents to claim that an operator is in breach of the residence contract by closing village facilities.
We are not suggesting for a moment that operators should refrain from closing village facilities on the basis of this theoretical risk, as the potential consequences of doing so could be catastrophic. However, the ideal solution would be for the Government to legislate to expressly absolve operators from any such liability.
Failing that, an operator’s form of contract may contain provisions that could assist. Even if there is no express right to temporarily close communal facilities in certain circumstances, more general provisions requiring residents to observe all legal requirements, or allowing the operator to make rules in relation to the communal facilities, may assist. In the end, it is a matter of contractual interpretation. Operators who have concerns in this regard should review their contract templates.
A number of operators have raised whether the closure of village facilities requires them to provide discounts or refunds to residents in relation to their general services charges. The short answer is, of itself, no.
The Retirement Villages Act 1999 (Q) (the RV Act) does not contain any provision entitling residents to reduced general services charges where village facilities are discontinued (whether temporarily or otherwise). Note that this is a different issue as to whether an operator is in breach of contract by discontinuing the facility.
Rather, the RV Act establishes an annual budgeting process, with an annual CPI cap. This cap applies to the combined total of general services charges (subject to certain exceptions). The general services charges payable by residents throughout a financial year are merely an estimate of total operational costs, and are not subject to variations in those costs during the course of the financial year. We would suggest that, while the temporary closure of certain facilities may result in some cost savings, other costs associated with COVID-19 (such as additional cleaning, training, procedural requirements and visitor controls) will increase. The appropriate time to consider the overall effect of these matters will be when the next village budget is prepared.
This should be undertaken by postal vote, with detailed explanatory notes on both the proposal and voting procedure accompanying the voting forms.
Operators should implement strategies to minimise the risk of infection from visitors to the village, including:
The same principles should apply to third party contractors, such as tradespersons and care providers.
Good communication, particularly with residents’ families, is vital.
While preventing infection within the village is of critical concern, operators should bear in mind that social isolation is itself a significant health risk. Operators should take steps to encourage interaction with other residents and family members to continue to the extent possible (e.g. phone, social communication apps, “driveway drinks”, etc.). Perhaps “social distancing” should be regarded as a misnomer, and residents should be encouraged to continue being social while “physically distancing”. Regular checks on resident welfare are also important.
Regular and appropriate communication with residents, staff and contractors regarding infection prevention measures within the village is also important to establishing that the operator has discharged its duty of care.
Please note that the information provided in this article is subject to regular change as Government restrictions are updated. We will continue to provide more information as it becomes available.
If you wish to discuss this article or any other retirement village issues in more detail, please contact Stuart Lowe on 07 3224 0355.
Article written by Stuart Lowe (Partner).
"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."