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Aged care providers and the security of tenure provisions - fair go!

By Julie McStay06 Feb 2013

On 29 January 2013, the Office of Aged Care Quality and Compliance issued a Feedback Alert to the aged care industry detailing the type of complaints they frequently receive in relation to the responsibilities of aged care providers to provide security of tenure to their residents. The alert also makes some "observations" about ageing in place and an approved provider's obligations in relation to security of tenure. Please see attached.

The Security of Tenure provisions within the User Rights Principles (the Principles), of the Aged Care Act 1997 (The Act) are intended to provide aged care residents with high levels of certainty. Aged care providers have an obligation to act reasonably in the provision of safe and secure environments for their residents and their employees and to provide appropriate levels of care for the assessed needs of residents.

The security of tenure provisions are however complex and onerous. For example, on their face, they make it a practical impossibility for an aged care provider to require that a resident leave their facility, regardless of the behaviour of that resident. The provisions should reasonably enable an aged care provider to require a resident to leave their facility if the resident behaves in an inappropriate way that places the staff and other residents of a facility at risk. We are not suggesting that an approved provider should be able to ask a resident to leave if the behaviour is due to a resident's cognitive impairment (unless the provider is no longer able to care for that resident) but when a resident with no cognitive impairment acts in a way that places staff and other residents at risk, surely a provider should reasonably be able to ask that resident to leave their facility. There is in fact good authority that a provider is lawfully entitled to terminate an agreement on contractual grounds and ask a resident to leave in these circumstances, provided the resident agreement has the appropriate provisions.

The Alert states that an approved provider has an obligation to identify and "secure" suitable alternative accommodation but this is not an accurate description of the requirements of legislation. The Act provides that an approved provider can ask a resident to leave (in certain defined circumstances) provided "suitable alternative accommodation is available"  that meets the care recipient's assessed long term needs and is affordable to the care recipient. While it is the approved provider's responsibility to ensure that suitable alternative accommodation is available, (affordable to the care recipient and suitable to their long terms assessed care needs) a provider does not have to "secure" a place for a resident and the place that is available does not necessarily have to be acceptable to the care recipient who is being asked to leave.

This latest alert issued by the Department of Health and Ageing indicates that providers must be able to demonstrate that their resident agreements and processes comply with the security of tenure provisions in the Act and the Principles and otherwise comply with the law.

Hynes Legal can review your resident agreement and provide recommendations on any amendments required to comply with the security of tenure provisions and to grant a right to terminate the agreement on contractual grounds and require a resident to leave.

This service is offered at a fixed fee.

Hynes Legal are experts in the provision of legal services to the aged care industry and are preferred suppliers of legal services to Leading Age Services Australia and Leading Age Services Queensland.

If you wish for us to review your agreement, please contact Julie McStay.