COVID-19 OPA Stakeholder Update 2

Legislative changes to minimise the spread of COVID-19

 The COVID-19 pandemic and the introduction of social distancing measures has meant significant changes to the way people interact.The Office of the Public Advocate has received a number of calls seeking advice on how these measures may impact a protected person’s movements.Everyone’s circumstances will be different and there is no one size fits all approach that can be taken in the current environment.Legislative change has been needed to help ensure supported accommodation facilities and guardians can take the necessary steps to keep protected persons safe from COVID-19.

What are the changes?

The Government has introduced the COVID-19 Emergency Response Act 2020 to allow for aged care, mental health and disability service providers to apply for temporary approval to restrict the movement of a protected person.Applications should be made where there is concern that a protected person does not have the capacity to adhere to public health measures (such as social distancing) that are designed to minimise the risk of transmitting COVID-19.These measures will help keep both the community and the protected person safe from the potential spread of COVID-19.Applications can be made to the guardian or, where there is no guardian, to the newly-created Authorising Officer. Leading disability advocate Professor Richard Bruggemann has been appointed to this position, and will endeavour to implement measures that do not unduly restrict a protected person’s movements, but still ensure appropriate public health measures are adhered to.

What do the orders do?

A supported accommodation facility can apply to the Authorising Officer or the person’s Guardian for authorisation to detain a protected person that can last up to 28 days.Authorisation will allow persons to take such steps as may be reasonably necessary to detain a protected person.The goal will be to implement the least restrictive approach that balances the protected person’s freedom with both the person and the broader community’s right to be protected from the possible spread of COVID-19.

Factors that will be considered

 When authorisation is sought, the Public Advocate or the Authorising Officer will consider all relevant background information.This would include:

  • A protected person’s history
  • How their capacity may impact on their interactions with others in public
  • The health risk this might pose to the protected person or other people
  • Any other mitigation measures providers have introduced to try and address any concerns.

Extensions to orders

Where an order extending beyond the initial 28 days is sought, an application must be made to the South Australian Civil and Administrative Tribunal (SACAT).

More information

We appreciate there is a delicate balance between restricting an individual’s movements and allowing activities that may pose a risk to both the individual and the broader community. We will work to reach solutions that involve the least restrictive approach, while ensuring all appropriate public health measures are met. More information is available at