May 20, 2020

COVID-19 Australia: Aged Care Facilities, Class Actions and Claims

This article is the first in a series of articles that look at how COVID-19 is affecting the healthcare and life sciences sectors in Australia.

Residents of aged care facilities are at increased risk of COVID-19 infection due to the environment of communal living facilities. The residents are also more vulnerable to serious complications if they do become infected due to their age and comorbidities.

Globally, as many as half of all coronavirus deaths in Europe are residents of aged care facilities, the World Health Organization (WHO) says. Dr Hans Kluge, WHO's regional director for Europe, described the number of aged care deaths as a "deeply concerning picture".

From an Australian perspective, on 24 April 2020, following the national cabinet meeting, Australian Prime Minister, Scott Morrison warned that any aged care facilities which were imposing visitor rules beyond the nationally recommended coronavirus advice, would face interference from the Commonwealth Government.  While Mr Morrison acknowledged there would be situations when bans on visitors were necessary for the safety of residents and staff, he confirmed in all other circumstances facilities must follow the national COVID-19 advice.

As of 19 May 2020, there are 65 confirmed COVID-19 cases in residential care recipients in Australia and 31 cases associated with 'in-home' care recipients. Of the 65 cases in residents of aged care facilities, there have been 22 recoveries recorded and 27 deaths, with 16 active cases. The majority of the Australian cases have occurred in New South Wales (NSW), with 62 cases of COVID-19 recorded in residential care recipients. Of those 62 cases, there have been 22 recoveries and 25 deaths.

Specifically, most recently NSW Health has recorded the 19th death at a Sydney aged care home, Newmarch House. The latest number of infections associated with the home is 71, with 37 residents and 34 staff who have tested positive to the virus. The initial carrier is noted to be a staff member who worked six shifts while showing symptoms of the virus before testing positive. She likely transmitted the virus to a number of residents and potentially other staff members during this time.

Newmarch House is run by Anglicare. Anglicare is likely to face a number of claims stemming from the management of staff and residents at the facility, particularly in respect to the implementation of visitor restrictions, proper disinfectant and infection control protocols.

Authorities are currently also investigating a potential coronavirus cluster at a nursing home in the Blue Mountains, south west of Sydney. An aged care worker tested positive for SARS-CoV-2 less than 48 hours after working a shift at Catholic Healthcare Bodington.

Prior to this cluster, 6 deaths had been recorded at the Dorothy Henderson Lodge in north-west Sydney, which is run by BaptistCare. There were 18 people infected in total, which included 13 residents and 5 staff. As at 9 May 2020, BaptistCare announced that no further cases were recorded at the facility and the outbreak was over.

There has also been a recent cluster of infections in Victorian aged care facilities[1], with HammondCare in Caulfield and Villa Maria Catholic Home in Bundoora being placed in lock-down.

Noting that there have been a total of 100 deaths in Australia associated with COVID-19[2], the deaths linked to aged care represent a significant number.  Due to the large cluster of cases, it is therefore likely that plaintiff firms will begin to explore a mass tort class action for personal injury. In addition, individual claims are likely to be brought by patients or their family members for compensation in respect of bodily injury arising out of the provision of/or failure to provide adequate medical, health care related and aged care related services.

Depending on the nature of the claim, General Liability, Medical Malpractice and/or a Professional Indemnity polices may respond.

1. as at 19 May 2020
2. as at 19 May 2020