Can a retirement village be ’closed off’ to access?

The short answer is no.  While an Operator is entitled to control the land and facilities it operates, residents have the right to ‘quiet enjoyment’ of their residence, including the right to lawful access.  

However, residents of all Queensland retirement villages are subject to the Home Confinement, Movement and Gathering Direction issued by Queensland Health on 2 April 2020 (Home Confinement Direction).  

The effect of the Home Confinement Direction is to require, on threat of penalty, all people to stay in their homes except for a permitted purpose, which includes the following:

  • to obtain food or other essential goods or services;
  • medical or health care needs, including compassionate requirements;
  • to engage in physical exercise;
  • to perform work or volunteering or to carry out or conduct an essential business activity or undertaking, which cannot reasonably be performed from the person’s residence;
  • to visit another person’s residence, noting that:
    • a person may allow up to two visitors who are not ordinarily members of the person’s household, for example, family member or close friends (this was recently revised from the original restriction of one visitor); and
    • the resident must take reasonable steps to encourage occupants of, and visitors to, the premises to practise social distancing to the extent reasonably practicable;
  • providing care or assistance to an immediate family member; or
  • to avoid injury or illness or to escape a risk of harm.

If a resident’s family attends a village for any of these purposes, it will be difficult for an Operator to deny entry.

Duty of care

An Operator has a duty of care to residents in the village, which is to take reasonable care to avoid or minimise foreseeable risks.  This duty of care most likely does not extend to a requirement to exclude visitors altogether. 

Operators must balance any action they take, against their obligation to respect the rights of residents and not to interfere with residents’ reasonable peace, comfort or privacy. 

Operators should:

  • close down shared facilities such as community halls, gyms, pools, barbeque areas, cafes (apart from takeaway services), cinemas, games rooms and playgrounds, consistent with Non-essential business, activity and undertaking Closure Direction (No.4) issued by Queensland Health (and further supported by a communique issued by the Department of Housing and Public Works to Operators on 1 April 2020);
  • host village meetings via distance such as video or teleconferencing; and
  • take steps to remind residents about their obligations under state and federal directives and, to the extent that it is in an Operator’s control, to act within those directives (e.g. limit the number of people who can use elevators, and inform residents that there is a limit of two people in a resident’s room).

Operators can also encourage their staff to complete the Australian Government’s online training module for COVID-19 infection control.  The Department of Health is developing a specific training program for aged care workers.  This program may also help support workers in retirement villages to understand how to prevent the spread of COVID-19 and measures to take if a resident or worker becomes infected.  The training module can be accessed here.

Deliveries

Operators may continue to allow deliveries (e.g. groceries, chemist, etc) and essential services such as in-home care as these are authorised by or otherwise consistent with the directives. 

Visitors

Residents may want to continue to receive visitors.  An Operator may take reasonable steps in relation to this process, such as the following:

  • inform the visitors that by visiting in numbers greater than two, they may be in breach of the Home Confinement Direction (and that the fine is up to a maximum of $13,345);
  • remind the residents of their obligations under state and federal directives and that any visitors may put other residents and staff at risk; and
  • screen visitors by requiring them to complete a declaration form about their recent health and travel (for instance, refer to the DCM Insitute’s COVID-19 Declaration Visitor Screening form as an example).   

Can we help?

The COVID-19 pandemic has impacted retirement villages in ways that are unique and profound due to many residents being in a vulnerable age group, living in close proximity to one another and sharing common facilities.

We are able to assist Operators by drafting warnings and notices for circulation to residents about closures of facilities and restrictions on movement in and around the village.  We are also able to advise on specific matters in relation to state and federal directives, or any other aspect of village or scheme operations that has been impacted by the pandemic.

For further information on any of the issues raised in this alert, please contact our below team. 

Thanks to Marie Carroll for her assistance in putting this article together.