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In the early stages of the outbreak, Government restrictions on social and business activities were rapidly superseded by more stringent restrictions.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.
Sources of legal obligations
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.
Public health directions applying to the community generally
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.
Home Confinement, Movement and Gathering Direction (2 April 2020)
This direction regulates the movement and congregation of persons and includes the following measures:
- A person must not leave their principal place of residence, except for specified purposes, such as to obtain essential goods or services, medical treatment, physical exercise, to visit another person’s residence (qualifications apply) or to perform work or volunteering if that cannot reasonably be performed from the person’s principal place of residence.
- A person who leaves their principal place of residence for a permitted purpose may be accompanied by members of their household or, alternatively, by no more than one person who is not a member of their household (exceptions apply for people with disabilities).
- A person who is an owner, resident, tenant, occupier, temporary occupier or person in control of a residence may allow up to two visitors who are not ordinarily members of the person’s household. Stated examples of visitors include family members and close friends.
- The direction does not prevent workers or volunteers entering a place of residence – they are not counted as visitors.
- An owner, resident, tenant, occupier, temporary occupier or person in control of premises, including a residence, must take reasonable steps to encourage occupants of, and visitors to, the premises to practise social distancing to the extent reasonably practicable. Social distancing includes remaining at least 1.5 metres away from other persons, regular washing of hands and avoiding handshaking.
- A person who owns, controls or operates premises, other than a residence, must not organise or allow a gathering to occur on the premises. A gathering essentially involves more than 2 persons being in a single undivided outdoor or indoor space at the same time.
Non-essential Business, Activity and Undertaking Closure Direction (No.5) (9 April 2020)
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:
- Cafes, restaurants – however, takeaway service and home delivery are permitted, providing certain measures are taken to encourage social distancing.
- Real estate auctions and open house inspections – however, private appointments for inspection are permitted.
- Beauty therapy – however, hairdressers may remain operational with no more than one person per four square metres, with social distancing observed to the extent possible.
- Concert venues, theatres – however, live streaming of a performance by no more than two people is permissible, with social distancing observed.
- Community and recreation centres.
- Personal training – however, this is permitted where it involves only two people including the personal trainer, with social distancing observed.
- Indoor sporting centres, including gyms, health clubs, fitness centres, yoga, barre and spin facilities, saunas, bathhouses and wellness centres.
- Social sporting-based activities – however, this is permitted where it involves only two people, with social distancing observed.
- Swimming pools including public pools and pools in shared facilities.
- Public barbeques (such as barbeques in public spaces or shared facilities).
- Places of worship – however, a service may be live streamed if the service is conducted by no more than five people including the camera operator, with social distancing observed (specific rules also apply to weddings and funerals).
Department of Housing and Public Works (DHPW) advice
Based on these directions, DHPW has issued guidance to retirement village operators on its website, as follows:
- All non-essential services in retirement villages must be closed. This means that retirement village operators should:
- close outdoor areas such as public barbeque facilities;
- close shared facilities such as dining halls, swimming pools, tennis courts, gyms, libraries, games rooms, common sitting areas, places of worship and beauty salons;
- introduce a delivery service or takeaway for meal services; and
- host meetings held by the residents committee, residents and the operator via distance, such as video or teleconferencing.
- Operators should not permit visitors or staff to enter the village if they have:
- been diagnosed with COVID-19 until they have ended their period of isolation;
- returned from overseas in the last 14 days;
- been in contact with a confirmed case of COVID-19 in the last 14 days; or
- a fever or symptoms of a respiratory infection, such as a cough, sore throat or shortness of breath.
- Operators should take extra precautions by:
- ensuring visits are kept short;
- allowing no more than two visitors, including doctors, at a time;
- ensuring visits occur in a resident’s room, outdoors, or in a designated area—no visiting in communal areas; and
- ensuring there are no large group visits or gatherings, including social activities or entertainment.
- Operators should help residents maintain contact with family and friends by:
- making phone or video calls accessible to all people living in the village where possible; and
- encouraging family and friends to maintain contact with residents by phone and other social communication apps.
- Operators should provide clear information to residents and families about COVID-19 prevention.
Public health direction applying to Queensland aged care facilities
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:
- end of life support; or
- one care and support visit per resident per day, for up to two hours, by no more than two visitors.
Also, a person must not enter or remain at a residential aged care facility in Queensland if:
- during the preceding 14 days, the person returned to Australia;
- during the preceding 14 days, the person had known contact with a person who has a confirmed case of COVID-19;
- the person has a temperature of 37.5 degrees or higher, or symptoms of acute respiratory infection;
- the person does not have an up to date vaccination against influenza, if such a vaccination is available to the person; or
- the person is aged under 16 years, other than to provide end of life support to a resident.
The above principles raise a number of operational issues for retirement village operators.
SALES TO NEW RESIDENTS
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.
CLOSURE OF VILLAGE COMMUNAL FACILITIES
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.
GENERAL SERVICES CHARGES
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.
VOTING AT RESIDENTS MEETINGS
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:
- declarations as to travel history, contact history and health status;
- identity checks;
- temperature checks;
- evidence of current influenza vaccination;
- social distancing; and
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.
COMMUNICATION WITH RESIDENTS, STAFF AND CONTRACTORS
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.