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August 2009  
 
Aged Care Alert
The Issue - Can a provider refuse entry to an eligible resident?
Resident Eligibility
Some What Ifs
The Law
Training
 
The Issue - Can a provider refuse entry to an eligible resident?
The Aged Care Act is replete with rights and obligations of residents and providers once a person has become a resident in a facility. But what does the Act say about an eligible person's right to become a resident of your facility or, conversely, a provider's obligation to accept an eligible person as a resident in their facility?
Resident Eligibility
The Act prescribes some of the bases upon which a person can be eligible for a subsidised place in an aged care facility. Most notably, it requires the person to be approved for the place by way of an ACAT assessment.

The Act also permits providers to determine some of the criteria for a person's eligibility. The best example of this is a provider's ability to require a person to pay an Accommodation Bond in low care or extra services.

None of this is particularly controversial for an eligible person where there is an available place. As well, eligibility issues are, at best, academic, if there is simply no available place.
Some What Ifs

Scenario 1

What if a person satisfies both the Act’s and your criteria for eligibility to be a resident, there is a place available in your facility, but, trouble is, you don’t want them in your facility?

Let’s say a provider was approached by a family with a view to having their mother become a resident in the high care wing of their facility. When one of the adult children let slip that their mum had been in 2 previous facilities and this would be her third, the manager became quietly anxious. This anxiety only grew when the manager was also told by the same child that the previous facilities were not up to the standard they expected for their mother. To the manager, they had all the tell tale signs of the much feared ‘helicopter’ family hovering over the facility 24 hours a day.

Scenario 2

What if your facility has a funded and an unfunded place available in high care. A family approaches you wanting a high care place for their parent, who is eligible for the funded place, but can also afford to take the unfunded place. Times are tough and you would love them to take the unfunded place.

Scenario 3

What if the manager of the facility up the road rings you, the manager of the facility down the road. She tells you they are in the process of evicting a resident from high care because their family has simply refused to pay the care fees and they are in huge arrears. The manager wants to know if you can take the resident because, as you know, they can’t actually force the resident to leave unless the resident has suitable alternative accommodation to go to. You have an available place as well that they could go to.

What would you do in any of these scenarios and would your actions be lawful?

The Law
Curiously, there is nothing specific in the Aged Care Act or Principles which directly answers the conundrums thrown up by these scenarios.

Instead, the answers to these real life problems are found in other areas of the law, both State and Commonwealth. These laws also affect, practically speaking, how you manage your waiting lists.

Space does not permit me to traverse the solutions in this Alert. Suffice to say that these scenarios are not uncommon, are real and the decisions you take in confronting them can have a powerful impact on your reputation and the quality of your legal compliance. Applying the proper principles and acting appropriately can also keep you out of the gun barrel of "A Current Affair".
Training
The scenarios above are just some that we tackle in our newly developed training presentation for aged care staff entitled "Taking the Risk out of Risk in Aged Care". The presentation extends over 3 hours and is rife with real life situations and even better, suggested answers on how you should respond.

If this sort of training is just what you need to instil some confidence in your staff's decision making, please don't hesitate to ring me.

Brian Herd
AGED CARE & RETIREMENT LIVING SERVICES
Carne Reidy Herd Lawyers

Brisbane Office Rockhampton Office  
Level 10, 193 North Quay, Level 6, 34 East Street E:  enquiry@crhlaw.com.au
Brisbane QLD 4000 Rockhampton QLD 4700 W: www.crhlaw.com.au
T: 0011 61 7 3236 2900 T: 0011 61 7 4921 2775
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