By Darren James, Partner

COVID-19 hit residential aged care facilities in Victoria and NSW hard 

Up until the end of October 2021, there were approximately 477 outbreaks across residential aged care facilities, involving over 2,900 residents and over 2,750 staff.

Unsurprisingly, the overwhelming majority of these outbreaks occurred in Victoria and in NSW.

While a number of these outbreaks were not significant in number, a number were sizeable.

According to Australian government data, in Victoria:

• 77 outbreaks involved over 7 infected staff and residents
• 38 outbreaks involved over 50 infected staff and residents
• 10 outbreaks involved over 100 infected staff and residents,
• 4 outbreaks involved over 120 infected staff and residents,
• 2 outbreaks involved over 180 infected staff and residents,
• Over 710 aged care residents died after contracting COVID-19; and
• A number of facilities experienced more than one COVID-19 outbreak.

And in NSW:

• 24 outbreaks involved over 7 infected staff and residents
• 2 outbreaks involved over 50 infected staff and residents, and
• About 90 residents died after contracting COVID-19.

The risk of a COVID-19 outbreak is ongoing 

COVID-19 outbreaks continue to affect residential aged care facilities in Victoria and NSW.

As at 3 November 2021, government data reveals that there are still about 680 active COVID-19 aged care resident cases across Victoria and NSW. Of those cases:

• 387 are in aged care facilities in Victoria; and
• 293 are in aged care facilities in New South Wales.

Numerous initiatives have been implemented over the course of the COVID-19 pandemic to assist residential aged care facilities manage the risk of COVID-19 outbreaks.

Over recent weeks, Rapid Antigen Test kits for staff and visitors have become available and are being trialled on pilot bases across selected facilities in Victoria and New South Wales.

These initiatives, coupled with ongoing vaccination programmes across the community, will likely help reduce the ongoing risk of an outbreak occurring within residential aged care facilities.

Nevertheless, with active infection cases in residential aged care settings continuing to be close to or over 300 in each of Victoria and New South Wales, the risk of an outbreak nevertheless remains extant and residential aged care providers need to remain vigilant and ensure that their infection control management, pandemic response and PPE practices continue to evolve to meet resident, community and regulatory expectations and requirements.

Emerging regulatory and litigation risks – the new COVID-19 frontier

Providers affected by outbreaks are now bracing for follow-on legal actions by regulators, care recipient families, aged care workers and contractors.

For residential aged care providers, follow-on regulatory and civil actions represent the new frontier of the COVID-19 pandemic.

There are 5 key areas in which these regulatory and litigation risks are appearing or are expected to appear. These are discussed below.

1. Regulatory Action – Investigations, Prosecutions & Inquests

1a. Workplace safety regulator action

Regulators who oversee and enforce care and workplace obligations for aged care recipients and workers have recently launched investigations into suspected contraventions.

In Victoria, the VWA has commenced a number of investigations into suspected breaches of occupational health and safety obligations by residential aged care providers in connection with COVID-19 outbreaks in which both aged care staff and residents were infected.

The VWA is understood to have issued notices to aged care providers to provide information and documents in connection with the alleged commission of offences by aged care providers and management teams. 

Previously, the VWA is understood to have issued similar notices to the Victorian Department of Health in connection with the Victorian Hotel Quarantine Program.

After an extensive analysis of the many thousands of documents produced to the VWA, it recently laid a total of 58 charges for alleged breaches of the Occupational Health & Safety Act.

17 of the 58 charges laid against the Department of Health were for alleged beaches of s21(1) of the Act (failure to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risks to health for employees).

41 of those 58 charges were for alleged breaches of s23(1) of the Act (failure to ensure, as far as reasonably practicable, that persons other than employees were not exposed to risks to health and safety).

1b. ACQSC Regulatory Action

The ACQSC is also understood to have pursued regulatory responses following the investigations identifying breaches of management and care standards at residential aged care facilities during COVID-19 outbreaks.

Following separate investigations in relation to a number of Victorian aged care facilities, the ACQSC is understood to have taken a variety of regulatory responses.

The ACQSC’s responses have included:

• issuing non-compliance notices
• issuing Notices to Agree
• requiring the appointment of compliance advisors (at the provider’s own expense)
• suspending the ability of facilities to admit new residents
• banning the ability of facilities to charge accommodation payments and accommodation contributions, and
• ordering the return of deposits.

Action has also been taken by the ACQSC in relation to at least one NSW aged care facility that experienced a substantial COVID-19 outbreak.

Reports have emerged of some facilities sedating or restraining aged care residents with dementia and cognitive issues as part of their COVID-19 infection management strategies.

Those reports have received considerable media attention and those who deployed such practices may well come under scrutiny by the ACQSC and others. The deployment of chemical and other restraints generally in residential aged care facilities, was most recently the subject of considerable focus into the Aged Care Quality & Safety Royal Commission.

1c. Police Investigations and Coronial Inquests

Outbreaks which have led to resident or worker deaths, may be subject to police investigations and coronial inquests.

In Victoria, the Coroner has announced an investigation into the death of 5 residents at one COVID-19 outbreak at an aged care facility.

Separately, the reports have emerged that the Victoria has been asked by the Coroner to compile a brief of evidence for an investigation into an aged care facility at which there was a substantial COVID-19 outbreak.

The Victoria Police is reported to have set up a task force, comprising members of the homicide squad and members from the crime department, to assist with aged care COVID-19 coronial investigations.

It is reasonable to expect that the coroner may investigate further COVID-19 outbreaks associated with multiple deaths in residential aged care facilities.

2. Class Actions: Residents, Family Members and LPRs

To date, 2 class actions have been commenced against residential aged care providers in relation to loss and damage sustained by aged care residents, resident family members, and the legal personal representatives of deceased residents, consequent upon COVID-19 outbreaks.

Each of the providers involved in these 2 class actions experienced significant COVID-19 outbreaks.

One provider’s outbreak saw 190 people infected with COVID-19 (103 aged care residents and 87 staff), with 38 deaths.

The other provider’s outbreak saw 191 people infected with COVID-19 (94 residents and 97 staff), with 45 deaths.

26 separate breaches of duty of care are alleged against the residential aged care providers, in each of the 2 class actions. 

The breaches asserted are wide ranging and traverse areas such as pandemic preparedness, infection control practices, staffing practices and surge capabilities, information disclosure and warnings.

Examples of the breaches alleged against each provider include:

• Permitting visitors to enter the facility and exposing residents to COVID-19
• Failing to advise or warn residents and persons visiting family members to wear PPE
• Failing to instruct staff in safe work practices to protect residents from contracting COVID-19
• Allowing staff and residents to not wear PPE within the facility, and to move freely within the facility, notwithstanding the risk such movement posed to spreading COVID-19 within the facility
• Failing to heed government warnings about COVID-19
• Failing to properly inform and educate staff about the dangers of COVID-19
• Failing to deploy adequately trained staff to care for residents
• Failure to have adequate staffing levels available
• Failure to have in place, and to implement, an effective infection control program
• Failing to ensure availability of necessary inventory and equipment to ensure the health and well being of residents
• Failing to provide a safe environment
• Failing to provide accommodation and aged care services safely, competently, diligently and as best as reasonably practicable
• Failing to disclose to residents and family members information relevant to the resident’s care, health and well-being
• Concealing or misrepresenting information to family members and government authorities about the severity of risks and the spread of COVID-19 at the facility.

Both of the class actions are being vigorously defended by the aged care providers involved.

While these 2 class actions concern sizeable Victorian outbreaks, they don’t concern the largest Victorian outbreak. The largest outbreak involved over 230 residents and staff, and 30 deaths.

The size of an outbreak has some bearing on the likelihood of a class action being commenced in respect of it. But it is important to note that the minimum requirement for the commencement of a class action is only that there be 7 or more persons who have claims against the same entity or person, and the claims of those 7 persons are in respect of or arise out of the same, similar or related circumstances, and give rise to a substantial common question of law or fact.

As noted earlier, there were 77 residential aged care outbreaks in Victoria, and 24 residential aged care outbreaks in NSW, which involved at least 7 persons infected with COVID-19. Notably, in Victoria, there were 38 outbreaks involved over 50 infected staff and residents.

This alone suggests that it is likely that further class actions may well be commenced against a number of these residential aged care providers.

3. Class Actions: Residential Aged Care Facility Employees

Given that over 2,750 workers in aged care are reported as having acquired COVID-19, it is likely only a matter of time before workers who acquired COVID-19 at work bring class actions against an aged care providers for compensation.

Initially, both of the class actions commenced in Victoria advanced claims on behalf of employees who acquired COVID-19 at the relevant facilities. It is understood, however, that both actions will be, or have been, amended to remove those claims. While it is not known whether those claims will be re-commenced in a separate action, it would not surprise if that did occur.

There have been recent media reports of workers from other aged care facilities who were infected with COVID-19 while at work considering bringing legal actions.

Separately, at least one class action law firm is understood to have established a register where workers exposed to COVID-19 at work, are able to enter their details.

4. Individual Claims: Residents and Aged Care Facility Employees

The prospect of actions brought by individual residents and workers infected by COVID-19 in consequence of residential aged care outbreaks is real. 

While many recover from COVID-19 infections within a few weeks and without ongoing impact, there is growing evidence that a substantial number experience long term ongoing conditions. These conditions are often referred to as Post-acute COVID-19 or Chronic COVID.

The conditions associated with Post-acute COVID and Chronic COVID are varied, and can include:

• Organ damage, such as chronic kidney impairment
• Heart complications
• Stroke
• Guillain-Barre syndrome
• Fatigue
• Memory and concentration problems
• Long term breathing problems
• Loss of smell and taste
• Depression and anxiety

It may be that over time, further conditions and complications associated with COVID-19 infection emerge.

It may take some time for claims to be made by individuals infected with COVID-19.

Many who acquired COVID-19 will probably wait to see how their condition progresses and assess what, if any, permanent injury or impairment they suffer before deciding whether to make and pursue a claim – so that there is greater certainty about the nature of their levels of impairment, and the levels and kinds of compensation that they may be able to seek. 

There may, however, be some who have terminal conditions and who wish to commence a claim before the end of their life. There are established court processes that enable these claims to be heard expeditiously.

5. Claims by Residential Aged Care Contractors

The occurrence of COVID-19 outbreaks at some facilities may have led to some contractors and their workers acquiring COVID-19 and suffering other loss and damage.

Some contractors, for example, had to stand down whole teams of staff exposed to or who had acquired COVID-19 during outbreaks, and replace those staff with others.

Contractors may inevitably seek to recover the loss and damage that they suffered as a result of COVID-19 outbreaks at residential aged car facilities from the aged care provider, where it can be established that the provider was negligent or breached its contractual obligations to the contractor.

The ability of contractors to bring and pursue such claims, may well be affected in some instances by the terms of their engagement with the aged care provider. Some contractual terms will likely contain exclusions of liability by aged care providers that may bar recovery. Others may contain back indemnities which make pursuing claims against providers economically unattractive.

Important forward considerations for residential aged care providers

Regulatory actions, investigations, class actions, contractor, individual resident and worker claims, are not stand-alone propositions. The occurrence of one, materially increases the risk of another occurring.

Admissions, guilty pleas, and adverse findings or judgments entered in regulatory investigations, inquests and prosecutions can affect not only the likelihood of further legal actions being brought – including class actions and individual claims – but can also affect how any such actions and claims can be defended.

Residential aged care providers faced with a regulatory investigation, inquest or prosecution, need to bear this relationship, and the longer terms risks, in mind.

Importantly, as the insurance market for COVID-19 related risks is continuing to contract – with many insurers excluding such risks from cover – aged care providers need to bear in mind that there is a growing risk that they may well have to not only meet the costs of defending claims, regulatory actions and inquiries themselves, but that that they may also have to pay any penalties or compensation ordered themselves.

If you or your business would like assistance responding to a COVID-19 outbreak or claim, please contact Darren James, Partner, Mills Oakley, on +61 3 9605 0952 or [email protected].

This article is of a general and informational nature. It does not constitute legal or professional advice by the author or by Mills Oakley, and must not be relied on as such.