Residential Care Security of Tenure Will Get Stricter: What Can Providers Do About It? 

Residential aged care providers are already familiar with the complexity of security of tenure — both in terms of regulatory requirements and clinical and behavioural risk.

The draft Aged Care Rules 2025 (Release 4A) now propose to tighten those requirements further.  The concept of ‘care continuity’ replaces existing terminology and introduces additional obligations before an exit can occur.

In practice, this means that lawful exits — already difficult to manage — are likely to become more constrained. In particular, providers will no longer be able to rely on the general availability of a bed at another facility.  Before asking a resident to leave, they must show that suitable alternative accommodation has been formally offered and that a detailed continuity of care plan has been developed.  That plan must show how the new placement meets the resident’s assessed needs and we would expect that this would, in turn, require comprehensive disclosure to the other provider of behavioural and clinical risks.

In practice, exits will now be even more difficult to implement — particularly for residents with behaviours that pose risk to themselves or others.  Keep someone who is unsafe, and a provider risks breaching their duties to every other resident — including the new statutory duties.  Move them on without meeting the new requirements, and they risk regulatory action.

Which makes the only workable strategy this: avoid having to move residents in the first place.

That means earlier identification, better escalation, and tighter decision-making.  The focus has to shift upstream — to prevention and containment, not crisis-driven exit planning.

What can providers do?

Get admissions right.
Apply strict criteria at intake.  Ensure accurate assessments are done and consent arrangements are valid.  While it’s true that the full picture often only emerges after admission and once the resident has settled in, admissions interviews can still be designed to elicit red flags.  Asking the right questions early can provide a better foundation for safe, sustainable care.  Insist that new residents come in with formal substitute decision-makers already in place so that decisions about care, behaviour management, dignity of risk and accommodation can be made (and in a timely fashion).

Be honest about the service’s capacity to manage complex behaviour at the relevant point in time — if in doubt, don’t admit the resident.

Use clinical governance to spot issues early.
Your clinical governance framework should flag early warning signs for complex residents who may otherwise become a risk to themselves or others.  Act on them quickly before issues become entrenched.

Know where a resident could go.
Start building relationships with other local providers. Help each other.  Document every offer sought and every response.

Document, document, document.
Update your agreements and policies to align with the draft Rules.  Include clear criteria for exits and require written offers and continuity of care plans before action is taken. Document everything.  This supports both compliance, safety and exposure to claims of breach of duty if something does go wrong.

Train your people.
Staff must understand the legal requirements for care continuity.  Training should also cover mental health, behaviour support and identification, escalation of risk to self and others.

Plan the continuity of care.
Where an exit is necessary, prepare a written plan detailing the new placement, supports during transition, and how care records and fees will be handled. Share this with the resident and their representative.

Build and maintain strong family relationships.
It goes without saying that a constructive relationship with a resident’s family or representative can make all the difference — both in managing behaviours and, where necessary, in facilitating voluntary exits.  Keep communication open, document key conversations, and involve families early when issues arise.  A collaborative approach may be your most effective tool.

In summary, Providers now need to shift their energy toward prevention and containment.  That means tightening up admissions, embedding early warning mechanisms and giving staff clear processes and direction before issues become entrenched.  This is now the best — and often only — chance at staying compliant, keeping residents safe, and reducing exposure to breach of duty claims when things go wrong.

For legal guidance or general discussion, contact Amber Crosthwaite  amber.crosthwaite@lavan.com.au.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.