Aged care facilities and nurses may be breaching the Public Health Act

Aged care facilities are breaking the law if a lone registered nurse on duty in a nursing home also attends to residents in nearby ‘assisted living’ accommodation.

The NSW Public Health Act 1991, Section 52, says a nursing home must ‘ensure that a registered nurse is on duty in the nursing home at all times’.

NSWNA Assistant General Secretary Judith Kiejda says that if only one RN is on duty, she or he cannot legally divide their time between a high-care nursing home and so-called low-care hostel or assisted-living accommodation.

‘It doesn’t matter if the nursing home and assisted-living accommodation are in the same building or adjoining buildings,’ Judith said.

‘If you are rostered to work in a nursing home as the sole RN, you cannot leave the nursing home for your entire shift.’

The issue was highlighted by a recent dispute at a Blue Mountains nursing home.

The facility accommodated nursing home residents in high-care beds as well as others in assisted-living apartments (ALAs). The two sections were in the same building, separated by a door.

In the nursing home, a single RN covered the night shift with one or two junior nurses. A nurse would monitor the ALAs and, if necessary, call the night RN to attend.

RNs provided assessment, treatment and medication for ALA residents during all shifts, yet were paid an in-charge allowance only for the nursing home.

The NSWNA branch at the facility sought a higher in-charge allowance because RNs were responsible for more than 100 beds.

Management refused on the basis that the Award provision did not apply to ALAs because such accommodation did not fall under the Public Health Act definition of a nursing home.

When the facility came under new ownership, management decided night shift RNs could no longer attend the ALAs because their temporary absence from the nursing home breached the Public Health Act.

Secretary Judith Kiejda said a better solution would have been to roster two RNs at night or put a second RN in charge of the ALAs.

‘Now an EN or AiN visits the apartment residents at night and has to phone the RN for advice. If it’s something the EN or AiN can’t handle, they must call an ambulance – even if the resident doesn’t require hospital admission.

‘The ENs and AiNs are not happy with this arrangement because they feel too much responsibility is put on them. The RNs are not happy because they are no longer able to provide the same level of care to the ALAs.’

Judith Kiejda said the case reflects a common problem across the industry.

‘ALAs or hostels are not legally considered high-care facilities but they often include high-care patients who were low-care at the time they were originally accommodated.

‘The Federal Government’s “ageing in place” policy, adopted in 1997, has made this situation more common.

‘High-care residents need quick access to a highly-trained nurse regardless of how the accommodation is classified. The law and accreditation system for nursing homes has not caught up with the reality of high–care patients remaining in a low-care facility with low-care staffing.’

What RNs should do

If you are the only RN on duty, covering both a nursing home and a hostel or assisted-living accommodation, you can:

  1. Contact the NSW Nurses’ Association
  2. If your workplace has a NSWNA branch, discuss the issue at a branch meeting and suggest the branch write to management alerting them to a possible breach of the Public Health Act.
  3. Take the issue to your workplace occupational health and safety committee. Ask management for a risk assessment of resident and nurse safety when nurses are attending hostels/assisted-living apartments.
  4. In the meantime, document each occasion of service to the ALA/hostel in a record book or diary, noting the date and time, name of resident, care given, time of leaving nursing home and time returning.  Keep a copy of the record book.