Health and Community Law Alert: 2019 novel coronavirus & infectious diseases: what health, disability and aged care providers can do

Insights4 Mar 2020
By Alison Choy Flannigan
A Sydney residential aged care facility placed 11 residents in isolation on 4 March 2020 after a staff member was diagnosed with coronavirus. Alison Choy Flannigan, leader of our Health & Community industry group, looks at the legal obligations and regulatory requirements of health and aged care providers in relation to infectious diseases.

By Alison Choy Flannigan 

A Sydney residential aged care facility placed 11 residents in isolation on 4 March 2020 after a staff member was diagnosed with coronavirus. Alison Choy Flannigan, leader of our Health & Community industry group, looks at the legal obligations and regulatory requirements of health and aged care providers in relation to infectious diseases.

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A Sydney residential aged care facility has placed 11 residents in isolation on 4 March 2020  after a staff member was diagnosed with coronavirus. The woman, who is in her 50s and has not travelled overseas recently, was working at the BaptistCare Dorothy Henderson Lodge aged care centre in Macquarie Park, northern Sydney. Two residents have displayed respiratory symptoms and are being tested, one has died. The cause of death was unknown at the time this article was published.

Update, 5 March: It has been confirmed that the woman’s test results were positive for the COVID-19 virus.

The Australian Government triggered its emergency response plan to COVID-19 on Thursday, 27 February 2020. Four days later, the Government extended travel restrictions relating to COVID-19, on the advice of the Australian Health Protection Principal Committee (AHPPC) and the Australian Border Force.

COVID-19 is one of a number of infectious diseases for which health, disability and aged care providers should prepare for, including influenza.

What are the legal obligations?

There are a number of legal obligations upon health and aged care providers in relation to infectious diseases. These include:

  1. compliance with regulatory requirements, including licensing and/or registration or approval requirements;
  2. duty of care; and
  3. obligations under Work, Health and Safety Laws.

Regulatory requirements

There are numerous regulatory requirements imposed upon health and aged care providers. These include standards which relate to sterilisation and infection control procedures, in addition to specific public health legislation.

The Biosecurity Act 2015 (Cth) authorises activities used to prevent the introduction and spread of target diseases into Australia. People reasonably suspected to have a listed human disease (LHD) specified under the Act are required to 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 (CMO); Minister for Health; or a biosecurity official or human biosecurity officer as stipulated in the Act.

The Governor-General also has the power to declare a human biosecurity emergency, which authorises the Health Minister to implement a broad range of 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 (as declared in the Biosecurity (Listed Human Diseases) Determination 2016) at any time 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 that enable them to implement biosecurity arrangements within their borders and that complement Australian Government biosecurity arrangements. They also have a broad range of public health and emergency response powers available under public and emergency legislation for responding to public health emergencies.

For example, the Minister has wide powers under the Public Health Act 2010 (NSW), including in a state of emergency the Minister:

(a) may take such action, and

(b) may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

Without limiting the above, an order may direct-

(a) all persons in a specified group, or

(b) all persons residing in a specified area,

to submit themselves for medical examination in accordance with the order.

There are two policy directives issued by NSW Health – the Infection Prevention and Control Policy and the Health Influenza Pandemic Plan.

The policy directives refer to the NSW Infection Prevention and Control Handbook and the Australian Guidelines for the Prevention and Control of Infection in Healthcare.

The Aged Care Quality and Safety Commission has published a number of influenza resources available online, here.

From 1 July 2019 the Commission will assess how organisations minimise infection-related risks under the Aged Care Quality Standards (Quality Standards). For example, under Standard 3 Requirement (3)(G), all aged care providers (to the extent relevant) 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.

The Victoria Health website refers to the national standards[1] for guidance on which infectious agents require transmission-based precautions (Australian Guidelines for the Prevention and Control of Infection in Healthcare)[2]

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.

While there are limited reported Australian cases on infection control, there are cases involving Salmonella and overseas cases.

Downey v St Paul’s Hospital [2007] B.C.J. No. 700[3]

In the Canadian case of Downey v St Paul’s Hospital [2007] BCJ 700, the plaintiff brought action in damages against St Paul’s Hospital after contracting tuberculosis (TB) from his friend who was a patient.

The plaintiff was hit in the eye by phlegm produced by the patient when he was visiting.

When the plaintiff asked if his friend was contagious, a nurse assured him that the Hospital would not have allowed the plaintiff to visit if that was the case.

There were no warning signs on the door or in the ward concerning infectious diseases. A decision as to whether a patient needed to be isolated would be made at the time the patient was admitted to the HIV Service.

The admission form for patients to the HIV Service included a section that the admitting doctor must complete concerning whether or not a patient should be placed in isolation. The decision whether to isolate was constantly re-evaluated as more information became available. Less than 5% of the patients placed in isolation for TB turned out to have the disease.

An action was brought under the British Columbia Occupiers Liability Act which imposes a duty on the occupier to take reasonable care to see that persons using the premises will be reasonably safe. There are similar public liability obligations on occupiers of premises in Australia.

The Supreme Court of British Columbia, Canada held:

  • The Hospital did not breach its duty of care to the plaintiff by failing to isolate the patient.
  • The decision on whether to order respiratory isolation is complex. The Hospital was entitled to rely on the medical judgment of health practitioners at the Hospital, who concluded that the patient did not require isolation.
  • The Hospital did not breach its duty of care to the plaintiff by failing to warn him.
  • The duty to warn is not divorced from the duty to isolate. Having decided that a patient did not require isolation, the Hospital was not required to warn visitors that the patient might have TB.
  • The Hospital must be reasonably safe for visitors. However, the Hospital is not an insurer of the health of visitors.
  • Hospitals contain sick people and visitors to hospitals know there are sick people present.

Elizabeth Miller v Greater Glasgow NHS Board [2010] CSIH 40[4]

In the UK case of Miller v Greater Glasgow NHS Board [2010] CSIH 40, the respondent was admitted to Glasgow Royal Infirmary for an aortic valve replacement and was diagnosed with a post-operative wound infection.

The infection was identified as being MRSA and the respondent argued that the infection was passed on to her by a staff member who had not followed the hospital’s hand hygiene policy.

The respondent maintained that she had become infected because members of the hospital staff were involved in ‘hands-on’ treatment of her, increasing the risk of transmission.

Various hygiene preparations such as antiseptic soap were not available where they might have been appropriate.

The hospital’s Infection Control Policy Manual, which contained a section on MRSA control, was not available to staff.

The patient (respondent to the appeal) claimed on two bases:

  • The first of these, to be found in Condescendence 5, is based upon an alleged breach of the reclaimers’ duty, directly incumbent upon them, to exercise reasonable care to look after the safety and welfare of patients, while being treated in the hospital.

It is said that it was their duty to take reasonable care to ensure that adequate hygiene measures were instituted and enforced in the hospital by various detailed means, which have been specified.

  • The second of the respondent’s common law cases, set out in Condescendence 7, is based upon the claim that her injury was caused by the fault of the hospital staff, for whose acts and omissions in the course of their employment the defenders are vicariously liable.

It was held:

  • In exercising their duty to take reasonable care for patients, the hospital had a duty to ensure that adequate hygiene measures were instituted and enforced.
  • At that time, it is said that there existed defects in the washing facilities, both as regards the plumbing system and the availability of soap. Towels were missing in some areas. Various hygiene preparations such as antiseptic soap and alcohol gel were not available where they might have been appropriate. Against that background it is claimed that there were management deficiencies. The hospital’s Infection Control Policy Manual, which contained a section on MRSA control was said not to be available to staff, who did not know where to locate it.
  • The respondent’s loss, injury and damages arose from her contraction of the MRSA infection.

Kimberly F v Mary Hitchcock Memorial Hospital and Hitchcock clinics (1993) U.S. App. LEXIS 31541[5]

In the US case of Kimberly F v Mary Hitchcock Memorial Hospital and Hitchcock clinics (1993) U.S. App. LEXIS 31541, the plaintiff was admitted to the obstetrical unit at the Mary Hitchcock Memorial Hospital to give birth.

One week later after being discharged, she was diagnosed as having an outbreak of genital herpes.

When admitted to the hospital, the plaintiff had no prior history of herpes. She was in hospital within the herpes incubation period.

A second patient with herpes was in the maternity ward at the time and occupied the same room as the plaintiff immediately prior to being put in the room.

The urine catch basin in the room contained urine from the other patient and some of the nurses did not wash their hands before examining the patient.

She subsequently sued the defendants alleging that she was infected with herpes while at the hospital and that the Hospital negligently failed to protect her from such an infection.

It was held:

  • The probable cause of the infection was one or more acts of negligence by the hospital.
  • This conclusion was sufficient to establish causation even though the doctor could not identify a single cause as the more-likely-than-not cause of the infection.

In this case, the jury awarded plaintiff US$125,000 and her husband $US25,000.

Samaan BHT Samaan v Kentucky Fried Chicken Pty Ltd [2012] NSWSC 381[6]

The plaintiff, Monika Samaan (by her tutor), sued KFC for damages as a result of contracting Salmonella after consuming a chicken ‘twister’ purchased by her father.

As a result of being infected with salmonella, the plaintiff suffered serious injuries including severe brain injury and spastic quadriplegia.

The plaintiff and her family had consumed a number of suspect meals from KFC within the incubation period for Salmonella.

It was held:

  • The meal purchased at KFC was the only common meal eaten in the relevant period by those members of the family who had fallen sick.
  • The standards set my KFC in relation to food handling and preparations were not met during the relevant period.
  • The Court was of the view that the contamination occurred after cooking, by cross contamination with product (directly or indirectly) that was contaminated with the bacteria and, more probably than not, a clump of flour or other such material that was contaminated. That contact was a breach of the procedures mandated by KFC and was negligent, or the use of it after such contact (also a breach of KFC procedures) was negligent.
  • Further, the duties imposed by the common law of contract and/or the Sale of Goods Act are such that this later discovered defect, which existed at the time of sale, renders the goods unmerchantable and/or not reasonably fit for the purpose required. The contract (including statutory warranties) has been breached and damages must flow.
  • Had the standard procedures been followed, it would have been almost impossible to contract salmonella from KFC products.
  • There was evidence of ‘aberrant behaviour’ by staff. It was likely that there had been cross-contamination of the chicken pieces after cooking.
  • Ms Samaan was awarded $8 million in damages plus costs.

In the US in Missouri, a 69-year-old plaintiff was awarded a US$2.58 million verdict after contracting an infection through an IV that was administered in the ambulance following a heart attack:

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

What should providers do?

Health, disability and aged care providers should ensure that 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 orientation and training of staff on standard precautions.

Standard precautions are work practices required to achieve a basic level of infection control. They include:[7]

  • hand hygiene and cough etiquette
  • the use of personal protective equipment (PPE)
  • 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 patients/residents and seek medical attention. It would be prudent to monitor the temperatures of sick patients/residents on a regular basis.

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

Providers should also advise staff not to come to 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.

If Providers are providing home care services, then there should be in place a communication protocol so that clients inform carers if they are feeling unwell.

Medical practices should be asking patients if they have travelled overseas recently and feel unwell and encourage those patients to be seen in their homes or attending hospitals rather than attending their clinics.

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

Useful resources:

This article was written with the assistance of Lauren Krejci, paralegal.

[1] https://www2.health.vic.gov.au/public-health/infectious-diseases/infection-control-guidelines;

[2] https://www.nhmrc.gov.au/about-us/publications/australian-guidelines-prevention-and-control-infection-healthcare-2019

[3] https://www.bccourts.ca/Jdb-txt/SC/07/04/2007BCSC0478.htm

[4] https://www.scotcourts.gov.uk/search-judgments/judgment?id=9d9286a6-8980-69d2-b500-ff0000d74aa7

[5] https://law.resource.org/pub/us/case/reporter/F3/009/9.F3d.1535.93-1438.html

[6] https://www.caselaw.nsw.gov.au/decision/54a636e83004de94513d9799

[7] https://www1.health.gov.au/internet/publications/publishing.nsf/Content/cda-cdna-norovirus.htm-l~cda-cdna-norovirus.htm-l-8

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