Compliance Management Insights - July 2024 | Aged Care Quality and Safety Commission

Peter Edwards

Security of tenure in aged care: A balancing act between resident behaviours and provider responsibilities

This month, I’d like to address an issue residential aged care providers are facing and that is coming to us to deal with more and more often. It’s the difficult situation when a provider believes they can’t meet a resident’s care needs anymore and asks the person to leave their service. These situations are covered by security of tenure provisions under the Aged Care Act 1997 and the User Rights Principles 2014 (Section 6 and 7). These provisions explain what you legally need to do as a provider. But handling these situations with care and consideration is just as important.

Understanding changes in behaviour

As people age, some will develop conditions that change their behaviours. These new behaviours can create challenges for both the person and their caregivers. In residential care, these behaviours can cause a provider to ask a resident to leave their service. This most often happens if the behaviours create tensions or risks for staff, other residents and family members. In other situations, a resident may be receiving care that isn’t suitable anymore.

When a person moves into a residential aged care service, that becomes their home. Removing a person from their home should be a last resort. It should only be considered after you have made every effort to meet their complex care needs, including getting expert advice. Open and honest conversations between senior staff and the resident and their family (or representative) always need to be the starting point in these situations.

When the Commission gets involved in these situations we ask if the provider has put in enough time and effort to understanding the resident’s behaviour. This includes:

have they considered how the person’s behaviour might change over time
what the provider has tried to support the person’s wellbeing while also making sure other residents and staff are safe.

We’re particularly concerned where we see evidence of possibly opportunistic behaviour. This includes things like transferring a resident to a hospital and then refusing to readmit them when they are ready to be discharged. It’s not acceptable for a provider to make this decision if it can mean the resident is then possibly homeless. Every situation is different, but we disapprove of this type of behaviour. There needs to be evidence that the provider has worked with the person and their family to find a different solution before transferring them to hospital or while they’re in hospital. Where provider behaviour like this is combined with evidence that they haven’t complied with security of tenure rules, we’ll look at taking regulatory action.

Evidence and assessment requirements

After having all the right conversations and exploring available options with a resident and their family, a provider may still need to consider starting the security of tenure process. Before a provider can consider doing that though, they need to collect evidence that shows they aren’t able to keep delivering care to the resident. The evidence needs to include an assessment of the resident’s long-term needs by an aged care assessment team or at least 2 medical or health professionals. The resident must choose one of these professionals and they must be independent from the approved provider and residential care service. If the assessment confirms that the provider isn’t able to meet the person’s care needs, the process of looking for alternative accommodation can start. This follows the requirements in the User Rights Principles.

Finding suitable alternative accommodation

Providers need to use sensitivity and compassion when moving a resident to another home. Moving can have a big impact on their wellbeing and quality of life. Moving homes when you’re older isn’t just a logistic challenge, it's a deeply emotional and disruptive experience. It can make existing issues worse and reduce a person’s sense of dignity and independence.

This is why the User Rights Principles highlight that providers must find ‘suitable alternative accommodation’ before asking a resident to leave. This accommodation must:

be available
meet the resident’s long-term assessed needs
be affordable.

A provider also needs to give residents a minimum of 14 days’ notice before a move can happen.

Person centred care

To successfully manage the process of finding alternative accommodation and moving a resident, you need to focus on delivering person-centred care. Part of this is making sure that there is consistent and transparent communication between you, the resident and their family. This will help to support trust between the resident and the service, which is key to the decision-making process.

As part of person-centred care, providers need to communicate with and support residents and their families to make a decision. Providers should also help the person and their family to find an independent advocate to support them through the process.

Coordination, dignity and respect during transitions

Providers need to be committed to being accountable and transparent and they need to communicate clearly and regularly. This makes sure that residents and their families trust and are confident that you’re acting in their best interests.

Moving a resident to alternative accommodation will include you working closely with the new provider, other care professionals and external care providers to make sure that any changes to the resident’s health are monitored. The planning of this sort of transition must be done carefully and sensitively.

Managing challenging behaviours and moving residents is one of the most difficult tasks a provider will face. This challenge can only be handled successfully by committing to, and focusing on, the needs of the resident. Providers need to treat older people with dignity, respect and compassion. They need to respect their rights and value their input. If you do these things well, there’s a good chance the transfer process: