Providers’ legal obligations for managing infectious diseases

Coronavirus and influenza are among several infectious diseases that aged care providers must prepare for, writes Alison Choy Flannigan.

Coronavirus and influenza are among several infectious diseases that aged care providers should prepare for, writes  Alison Choy Flannigan.

There are several legal obligations upon aged care, health and disability service providers in relation to infectious diseases.

These include:

  1. compliance with regulatory requirements, including licensing and registration or approval requirements
  2. duty of care
  3. obligations under work, health and safety laws.

Regulatory requirements

Alison Choy Flannigan

Numerous regulatory requirements for aged care and health service providers include standards relating to sterilisation and infection control procedures, and specific public health legislation.

The Biosecurity Act 2015 (Cth) authorises activities to prevent introduction and spread of target diseases into Australia.

People reasonably suspected to have a listed human disease (LHD) must comply with a range of biosecurity measures and requests for information as directed by the Director of Human Biosecurity (DHB), Australia’s Chief Medical Officer, Minister for Health or a biosecurity official or human biosecurity officer as stipulated in the Act.

The Governor-General has power to declare a human biosecurity emergency, which authorises the Health Minister to implement actions in response. These could be applied to respond to a serious infectious disease outbreak or a pandemic. Diseases can be added to the list of LHDs by the DHB at short notice.

The National Health Security Act 2007 (Cth) (NHS Act) authorises the exchange of public health surveillance information – including personal information – between the Australian Government, states and territories and the World Health Organisation.

States and territories have legislative powers to implement biosecurity arrangements within their borders, complementing Australian Government biosecurity arrangements. They also have many public health and emergency response powers available under public and emergency legislation for public health emergencies.

The Aged Care Quality and Safety Commission has published several influenza resources available online here.

Since 1 July 2019 the commission assesses how organisations minimise infection-related risks under the Aged Care Quality Standards. For example, under Standard 3, all relevant aged care providers will need to demonstrate the following:

  • minimisation of infection-related risks through implementing:
    • standard and transmission-based precautions to prevent and control infection; and
    • practices to promote appropriate antibiotic prescribing and use to support optimal care and reduce the risk of increasing resistance to antibiotics.
  • all providers are expected to assess the risk of, and take steps to prevent, detect and control the spread of infections.
  • all providers are expected to demonstrate that their approach to infection control aligns with best practice.

Duty of Care

Civil liability legislation in each Australian state and territory imposes a duty upon professionals (including but not limited to medical practitioners and nurses) to act in accordance with peer professional practice, for example under section 5O of the Civil Liability Act 2002 (NSW).

There is similar legislation in each state and territory of Australia. Case law has indicated there is a duty to isolate residents who have an infectious disease and to have adequate infection control and hygiene measures in place such as antiseptic soap and alcohol gel.

Work, health and safety

Employers or businesses, or anyone who falls under the definition of a ‘person conducting a business or undertaking’ (a PCBU), has legal obligations under work health and safety laws.

A ‘person conducting a business or undertaking’ is a broad term used throughout work health and safety legislation to describe all forms of modern working arrangements

As an employer or a PCBU, you have the main responsibility for the health and safety of everyone in your workplace, including visitors.

What should providers do?

Aged care, health and disability service providers should ensure they comply with regulatory standards including sterilisation, and the standard precautions and monitor Government announcements and information provided to the sector in relation to infection control.

They should provide adequate staff orientation and training on standard precautions.

Standard precautions are work practices required to achieve a basic level of infection control. They include:

  • hand hygiene and cough etiquette
  • the use of personal protective equipment
  • the safe use and disposal of sharps
  • routine environmental cleaning
  • incorporation of safe practices for handling blood, body fluids and secretions as well as excretions.

As necessary, providers should be prepared to isolate sick residents and seek medical attention. It would be prudent to regularly monitor temperatures of sick residents.

Providers should advise visitors who are unwell with potentially contagious diseases not to visit or interact with residents. This may include self-isolating as per medical advice.

Providers should also advise staff not to attend work if unwell with a potentially contagious disease and to self-isolate. Many organisations are requesting staff to advise if they have or will be travelling overseas and minimising overseas travel for work.

For home care services, then there should be a communication protocol for clients to inform carers if they are feeling unwell.

Organisations should implement appropriate corporate and clinical governance to monitor incidents and have a communications and media plan to communicate with stakeholders including shareholders, members, staff, residents and their families.

Alison Choy Flannigan is a partner at Hall & Wilcox and leads their health & community practice. This article was written with the assistance of paralegal Lauren Krejci.

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Tags: alison-choy-flannigan, coronavirus, hall-and-wilcox, infectious-diseases, influenza, legal, slider,

2 thoughts on “Providers’ legal obligations for managing infectious diseases

  1. How are you going to enforce this, when care organizations value the privacy of the client over their duty of care of their care workers??

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