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Darth Vader, nursing homes, and South Australians

kyle kutasi - legal solve solicitor - in the Australian Business Executive

South Australia: “Australia’s Florida”. The place to go if you enjoy B-grade wine and a B-grade time. A region so boring that on one occasion a man started a small family run business pickling other human being in barrels. If you can make it there, you can make it anywhere. 

OK, only kidding. But recently South Australia has been brought back into the public eye, and sadly for the wrong reasons. 

Now that the protocol has already been set, first by New South Wales, then Victoria, as to what a state will do if it wakes up one lazy Sunday and finds itself re-infected with The Virus (trademark). That the state panics, shuts down, and new, strict legislation is implemented to reduce the spread of the big V as quickly as possible. 

Based on what we saw in the past six months in Victoria, the swift implementation of legislation often leads to huge glaring contradictions between legality and practicality, and South Australia’s most recent amendments to the Emergency Management (Residential Aged Care Facilities No 13) (COVID-19) Direction is no different. 

The Direction contains a clause which has caused some increased frustration in and among those working in Aged Care, with respect to the restrictions put in place by the SA Government. Section 6(1)(b) of the Direct exclaims that “any person providing nursing, medical, allied health or personal care services to residents at a RACF must wear appropriate PPE, in accordance with Australian Guidelines, whenever a distance of 1.5m between themselves and the resident cannot be maintained.” 

The personal protective equipment (PPE) guidelines state that a worker must wear a long-sleeved fluid resident gown, a surgical marsh, eye protective shields, and disposable non-serial gloves. Now of course for those who are already doctors, or emergency nurses, the equipment listed is not particularly restrictive, however facilities have found the protective equipment directive to be particularly difficult to utilise for rehabilitation masseuses and day-to-day residential nurses. 

As one might imagine, performing a therapeutic massage, or attempting to shower an elderly person while dressed as a slightly more well-ventilated version of Darth Vader has posed quite the struggle in an industry which is incredibly hands-on.

This is even more obtuse when you recall that, whilst nurses aren’t dressed in riot gear, they’re supposed to maintain social distancing regulations, in a profession that is entirely focused on maintaining proximity. 

It is surely not the most poorly conceived law that we’ve seen come out of the pandemic, but it is indicative of the larger ongoing issue that legislators are grappling with, that common sense and the law generally aren’t bedfellows. 

In light of the fact that South Australia is the second state which has faced this particular issue, I propose a suggestion to overcome this obstacle: hire a courtroom sketch and make them draw up any proposed restriction. If it looks ridiculous, maybe rethink it? 

Kyle Kutasi is a Sydney-based solicitor with Solve Legal, representing individuals and corporates with a specialty in employment and civil litigation matters, www.solveonline.com.au.

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