What providers need to know about security of tenure compliance

Asking someone to leave your service when their care needs move beyond your capabilities can be a challenging process. Legally, this falls under what’s called the ‘security of tenure’, legislation that explains what is required when an approved provider may ask or require a care recipient to leave residential care service. 

In the July edition of the Aged Care Quality and Safety Commission’s Compliance Management Insights, Peter Edwards, Executive Director, Compliance Management Group, explored what providers need to be aware of when dealing with this delicate balance act. 

Mr Edwards said there has been a growing number of enquiries to the Commission regarding a provider’s ability to ask a person to leave their service when they can no longer meet their needs. 

Currently, these situations are covered by security of tenure provisions under the Aged Care Act 1997 (Division 56) and the User Rights Principles 2014 (Sections 6 and 7). The new Aged Care Act and its Rules will replace them both, albeit there is no specific mention of tenure of security in the exposure draft of the new Aged Care Act.

A spokesperson for the Department of Health and Aged Care told Hello Leaders it was proposed to be prescribed in the Rules under section 107 of the Exposure Draft regarding Ceasing the provision of funded aged care services.

“Feedback received through the consultation process on the Exposure Draft highlighted that security of tenure is a key issue to both providers and older people and should be included in the primary legislation. We are working through consultation feedback as we prepare the Bill for the new Aged Care Act for introduction to Parliament,” they added.

While Mr Edwards said existing provisions explain what a provider needs to do legally, he mentioned there is an added challenge of handling situations with care and consideration.

“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,” Mr Edwards said.

“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.”

He added that open and honest communication between senior staff, the resident and their family – or representative – is an essential starting point. 

There have been concerns at the Commission over potential “opportunistic behaviour” where a resident is transferred to a hospital and then refused readmission once 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,” Mr Edwards added. 

“There needs to be evidence that the provider has worked with the person and their family to find a different solution […]. 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.”

Suppose the Commission does involve itself in security of tenure situations. In that case, providers must show evidence of what they have already done to support a resident and others to ensure safety and wellbeing. 

Evidence and effort

The security of tenure process is often the last step for a service provider; all other possible options to provide suitable care must be explored before asking a person to leave a service. 

Before that occurs, though, a provider needs to collect evidence to show they cannot keep delivering care because of their growing needs. The evidence needs to include an assessment of the resident’s long-term needs by an aged care assessment team or at least two 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 the provider can no longer meet the person’s care needs, the process of looking for alternative accommodation can start. Mr Edwards recommended that providers help service users find an independent advocate for support during this process. 

Finding suitable accommodation is crucial. All efforts must be made to have somewhere lined up that is suitable and able to support the person’s long-term needs. This accommodation also needs to be organised before giving a resident a minimum of 14 days’ notice before a move. 

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,” Mr Edwards added.

“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.

“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.”

Coordination, dignity and respect

Mr Edwards added that, “The planning of this sort of transition must be done carefully and sensitively,” and a coordinated effort is needed so it runs smoothly. He outlined that providers need to work continuously with other care professionals and external care providers to ensure any changes to a resident’s health are recognised and attended to. 

“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,” he said.

“Providers need to treat older people with dignity, respect and compassion. They need to respect their rights and value their input.”

Mr Edwards said that if a provider does these things well, the transfer process will likely go smoothly, have a better outcome for the resident and avoid any Commission intervention.