As a retirement village operator, you are required to provide a safe and suitable environment for your residents to live.  Residents also enjoy security of tenure.  Unfortunately, it is not unusual for residents to experience a deterioration in their mental or physical health while living in a retirement village.  Sometimes, this can mean that the village is no longer a safe place for them to live in.  Often, the resident and their family recognises the need to make other arrangements and you as operator can help them transition to a better environment.  But what happens if they don’t want to leave despite the risk?

Assessing and managing a resident’s changing condition can be very complex and delicate process; and determining the most appropriate response can be challenging.  Read on to find out the four steps an operator should take when there is reason to believe that the resident can no longer live safely within a village.

Step 1 – Form an informed view

Any perceived changes to a resident’s health will be a cause for concern – including from a risk perspective.  If you have reason to believe that a resident’s mental or physical health has worsened, it is important to carefully evaluate the true nature and extent of their deterioration before taking further action.  Some useful questions to ask when assessing a resident’s condition include:

• Has the resident recently sustained any accidents or injuries within the village?

• Is the resident’s injury or condition temporary or permanent?

• Are there reasonable precautions that can be taken to address any of the additional risks to the resident in light of any health concerns?

Obtaining this information will not only help you to clarify the resident’s deterioration, but will also assist you to make an informed decision as to the most appropriate response to take.  For example, temporary deteriorations may be effectively managed by taking temporary precautions or making minor adjustments, whereas these may not be adequate steps to take in response to rapid or permanent deteriorations.

Step 2 – Speak to the resident and their family

After you have formed a view, the best next step is usually to discuss your concerns with the resident.  It may also be appropriate to engage with other people, with the resident’s consent (eg family members and medical practitioners).  Sometimes, a one-off discussion is all that is required to manage the situation.  More often, this first discussion is part of an ongoing consultation process with the resident and their family.  

This discussion may include finding out more about their personal situation and suggesting ways that you might be able to help.  It may also include recommending that the resident move to alternative accommodation such as a nursing home and offering to help with that process.

Step 3 – Responding to a refusal

If the resident does refuse, and if you continue to hold the view that their premises is no longer suitable for their continued occupation, it may be necessary for you to take steps to terminate their village contract.  This will involve issuing a prescribed form of notice to the resident in accordance with all requirements of the legislation and, if necessary, making an application to the NSW Civil & Administrative Tribunal – see Step 4.  However, this is an unpleasant exercise for all parties concerned and should be treated as a last resort.  Usually, it is prudent and appropriate for the operator to first liaise with the resident to understand the reasons why the resident is refusing to leave and to address them in a more collaborative manner.  That said, there will be a point in time when the operator has no alternative but to take steps to terminate the village contract. Otherwise the operator may be in breach of its duty of care to the resident, which can have significant consequences.

Step 4 – Making an application to the Tribunal

When considering an application to terminate a village contract on medical grounds, the Tribunal will only make an order if it is satisfied that the premises is unsuitable for the resident due to their physical or mental incapacity and that it is appropriate for the operator to terminate the village contract on this basis.  The evidence that you will be required to produce in support of your application is partly prescribed by the legislation, and partly depends on the situation at hand.

Preparation is key

The nature of responding to the concerns of a residents’ health and wellbeing is a complex and delicate process.  Whether it be merely monitoring the condition of minor injury or assisting in the smooth transition of a resident from your village, it is important to be being proactive in your preparation to ensure that all proper steps are taken and performed in a way that is respectful to the resident.  As part of your preparation, you should consider:

• Implementing clear and comprehensive policies and procedures focused on assessing and monitoring the health and safety of residents.

• Keeping appropriate records on file, including any incident reports, risk assessment forms, records of any steps taken in response to an identified risk, as well as conversations with residents and their families. These records will also be useful to confirm your compliance with policies and procedures, as well as being evidence to support any eventual applications to the tribunal.

• Providing appropriate training for employees and staff.

• Implementing an escalation procedure for when a resident is required to move.

Key takeaways

Managing a situation like this can be challenging to say the least.   In all cases, you must continually monitor the resident’s condition and take reasonable precautions against any perceived risks as appropriate.  In more serious instances, you may need to take steps to help that resident transition to more suitable accommodation outside the village, including taking steps to terminate the village contract. 

For the above reasons, it is very important to ensure that your organisation has clear and comprehensive policies and procedures in place to handle any sudden or gradual changes to resident health.  These policies and procedures should include documentation and review procedures, to ensure that your village keeps evidence of what steps it took in response and why and to ensure that your staff are consistently and continually managing the risks to that resident.  Not only will this allow you to safely respond to your residents changing needs, it will also safeguard your village from any unwanted disputes and legal claims.

Do you need help?

If you require legal advice or have any concerns about how to manage a situation like this in your retirement village, please call us on 02 9199 4563.  We are recognised experts in retirement village law with a wealth of experience in assisting operators to manage complex situations like these, and we would be delighted to assist you.  

This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you. Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.