AN INQUEST INTO THE DEATH OF CHARLES ROWAN McCULLOCH

Case •

[2016] ACTCD 5

•

10 August 2016

CORONERS COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

AN INQUEST INTO THE DEATH OF
CHARLES ROWAN McCULLOCH

Citation:

[2016] ACTCD 5

Date of Findings:

10 August 2016

Before:

Coroner P.G. Dingwall

Legislation Cited:

Coroners Act 1997 (ACT)

Aged Care Act 1997 (Cth)

Cases Cited:

R v Coroner Maria Doogan; ex parte Lucas-Smith
[2005] ACTSC 74; 158 ACTR 1

Harmsworth v The State Coroner [1989] VR 989

File Number:

CD 20 of 2012

IN THE CORONERS COURT                   )

AT CANBERRA IN THE   )         CD 20 of 2012

AUSTRALIAN CAPITAL TERRITORY  )         

INQUEST INTO THE DEATH OF

CHARLES ROWAN McCULLOCH

Reasons for Findings of Coroner Dingwall

Published on the 10th day of August 2016

  1. On 21 January 2012, the death of Mr Charles Rowan McCulloch (“Mr McCulloch”), aged 94 years, was reported to me. It was reported that early in the morning of 21 January 2012 he had been found deceased in Room 43, Casuarina Ward, Jindalee Aged Care Residence (“Jindalee”), Goyder Street, Narrabundah in the Australian Capital Territory and that his life had been declared extinct at 9.45 am that day. Upon receipt of the report, being satisfied as to my jurisdiction, I commenced an inquest into Mr McCulloch’s death and ordered that a post-mortem examination of his body be carried out.

Jurisdiction

  1. Section 13 of the Coroners Act 1997 (“the Act”) sets out the circumstances in which a coroner must hold an inquest into a person’s death. The relevant parts of the section are as follows:

    “13   Coroner’s jurisdiction in relation to deaths

    (1)A coroner must hold an inquest into the manner and cause of death of a person who—

    (a)dies violently, or unnaturally, in unknown circumstances; or

    (b)dies under suspicious circumstances; or . . .”

  2. It was clear at an early stage that on 21st January 2012 Mr McCulloch had sustained significant injury inflicted by another person whilst a resident of Jindalee and that he had died as a result of these injuries. It is therefore clear that I had jurisdiction to conduct an inquest by virtue of sub-paragraphs 13(1) (a) and (b) of the Act.

Applicable Law

  1. Section 52 of Act sets out what a coroner is required to find and may comment upon as a result of holding an inquest. The relevant parts of the section provide as follows:

    “52     Coroner’s findings

    (1)   A coroner holding an inquest must find, if possible—

    (a)   the identity of the deceased; and

    (b)   when and where the death happened; and

    (c)   the manner and cause of death; and

    (d)   in the case of the suspected death of a person—that the person has died.

    .  .  .

    (3)   At the conclusion of an inquest or inquiry, the coroner must record the coroner’s findings in writing.

    (4)   The coroner, in the coroner’s findings—

    (a)   must—

    (i)state whether a matter of public safety is found to arise in connection with the inquest or inquiry; and

    (ii)if a matter of public safety is found to arise—comment on the matter; and

    (b)   may comment on any matter about the administration of justice connected with the inquest or inquiry.”

  2. Quite separate from the obligation to make the formal findings required by s 52, the objects of the Act articulated in s 3BA allow a coroner to make recommendations based on the coroner’s findings about a number of matters, should it be considered appropriate. Those matters include those contained within s 3BA (1)(d):

    “(i)the prevention of deaths;\

    (ii)the promotion of general public health and safety including occupational health and safety;

    (iii)the administration of justice;

    (iv)the need for a matter to be investigated or reviewed by an entity”.

  3. However, a coroner’s power to make comments is subject to s.55 of the Act. It provides as follows:

    55Adverse comment in findings or reports

    (1)A coroner must not include in a finding or report under this Act (including an annual report) a comment adverse to a person identifiable from the finding or report unless the coroner has, making the finding or report, taken all reasonable steps to give to the person a copy of the proposed comment and a written notice advising the person that, within a specified period (being not more than 28 days and not less than 14 days after the date of the notice), the person may—

    (a)make a submission to the coroner in relation to the proposed comment; or

    (b)give to the coroner a written statement in relation to it.

    (2)The coroner may extend, by not more than 28 days, the period of time specified in a notice under subsection (1).

    (3)If the person so requests, the coroner must include in the report the statement given under subsection (1) (b) or a fair summary of it.”

  4. The limits of a coroner’s inquiry and powers have received judicial consideration. In R v Doogan; Ex Parte Lucas Smith & Ors [2005] ACTSC 74 (5 August 2005) the Full Court of the ACT Supreme Court comprising Higgins CJ, Crispin and Bennett JJ stated at [12] :

    “The task of a coroner is not to determine whether anyone is entitled to some legal remedy, is liable to another or is guilty of an offence. The Coroner’s task is to inquire into the matters specified in the relevant section of the Coroners Act 1997 (“the Act”) and make, if possible, the required findings and any comments that may be appropriate.”

    At [15] the Court stated:
                    “The Act is generally concerned with the resolution of relatively straightforward questions such as ‘what was the cause of this death?”\’ or ‘what caused this fire?’ It does not provide a general mechanism for an open ended inquiry into the merits of government policy, the performance of government agencies or private institutions, or the conduct of individuals, even if apparently related in some way to the circumstances in which the death or fire occurred. Specific provisions of the Act confer jurisdiction on coroners to enquire into stipulated questions, require them to make certain findings, and empower them to make comments.”

  5. Further in Harmsworth v The State Coroner [1989] VR 989 at 997 Nathan J discussed the ambit of the Coroner’s power and said:

    “The power to comment arises as a consequence of the obligation to make findings…It is not free ranging. It must be comment ‘on any matter connected with the death.’ The powers to comment and also to make recommendations ….are inextricably connected with, but not independent of the power to enquire into a death or fire for the purposes of making findings. They are not separate or distinct sources of power enabling a coroner to enquire for the sole or dominant reason of making comment or recommendation. It arises as a consequence of the exercise of a coroner’s prime function that is to make ‘findings’.”

  6. In my view, in light of the above authorities, it is not the function of a coroner to ascribe blame to any person or institution. Comments that a coroner makes, even if adverse to a person or institution, are made for the purpose of identifying matters concerning the death being investigated which should be improved or changed so as to avoid similar deaths in the future.

    Post Mortem Examination

  7. At my direction, Dr Parsons, Forensic Pathologist, performed a post mortem examination of Mr McCulloch’s body. She reported that the Mr McCulloch died as a result of blunt head and neck trauma. The neck trauma included a fracture through both left and right horns of the thyroid cartilage and a fracture through the left greater horn of the hyoid bone, both with associated haemorrhage. Her report details significant injuries to his face, head and neck area. During the post mortem examination, pieces of what appeared to be a bloodstained napkin were observed in his mouth and airways. Dr Parsons reported that the significance of the foreign bodies in the upper airway and the multiple areas of bruising to the neck and hyoid were difficult to explain and a degree of neck compression/upper airway obstruction in a man with emphysema could not be excluded as contributing to his death. She further stated that there were areas of haemorrhage in multiple planes, consistent with multiple impacts of blunt force trauma.

  8. Dr David Griffiths, Consultant Forensic Odontologist, also examined Mr McCulloch’s body during the post mortem examination. He found that Mr McCulloch had sustained significant traumatic injuries to the dentition area, with associated soft tissue injuries, which appeared to have occurred peri – mortem and were consistent with a blow to the left side of the Mr McCulloch’s face.

Inquest hearing

  1. I conducted a public hearing for the purposes of the inquest into Mr McCulloch’s death. Ms Amanda Tonkin appeared as Counsel Assisting, Mr Wayne Sharwood appeared on behalf of Johnson Village Services Pty Ltd (the company which operates Jindalee) and Ms Lesli Strong of Strong Law appeared on behalf of Mr McCulloch’s family.

  2. The hearing was held over seven days. It commenced on 4 May 2015 and ran for two days, it continued on 24, 25 and 29 September 2015 and was finalised over two days on 20 and 21 April 2016.

  3. On the morning of 4th May 2015, I, Counsel Assisting, Counsel for Jindalee and Counsel for Mr McCulloch’s family participated in a view of the Casuarina Ward at Jindalee. During the view, we were accompanied, and assisted, by Sergeant Sarah Casey and Constable Tristan Thexton of the Australian Federal Police. Sergeant Casey was the officer who had been in charge of the investigation carried out at my direction. She and Constable Thexton and other members of Australian Federal Police conducted a thorough investigation into the circumstances surrounding Mr McCulloch’s death, as well as suspected assaults upon two other residents of the Jindalee which took place on the morning of 21st January 2012.

  4. During the hearing videoed re-enactments of events were played to the Court. 155 exhibits were tendered and 15 witnesses were called to give evidence, including a representative of the McCulloch family.

  5. At the commencement of the hearing, I made a non-publication order with respect to residents of Jindalee who were known dementia patients and who were suspects in relation to Mr McCulloch’s injury and subsequent death.

Circumstances Surrounding Mr McCulloch’s death

  1. It is clear that Mr McCulloch died in Bed A, Room 43 of the Casuarina Ward at Jindalee on the morning of 21 January 2012 after another person had inflicted blows to his head and neck regions.

  1. The exact time that Mr McCulloch sustained his injuries cannot be determined but it is clear that it occurred at some point between 7.05 am and 7.58 am. After a very thorough and meticulous investigation carried out by the members of the Australian Federal Police, it is clear that the injuries sustained by Mr McCulloch were sustained while he was lying on his bed and that they were inflicted by another resident who also lived in Room 43.

  1. Throughout these reasons I shall refer to that other resident as VH, consistent with the non-publication order I have made, and because he was not charged with any offence before his death, which occurred prior to the inquest hearing, it being unclear that he could have ever been found guilty of an offence in light of his dementia. In these circumstances, I consider it inappropriate to name him when neither he nor his family have been given an opportunity to be heard in respect to the matters alleged about him.

  1. The Casuarina Ward is a secure ward in which patients suffering from dementia are accommodated. Both Mr McCulloch and VH suffered from dementia.

The evidence of the witnesses

  1. As noted above, 15 witnesses were called to give evidence. Their testimony was long and detailed.

  1. Counsel Assisting has painstakingly prepared an accurate summary of the important aspects of the evidence of each witness. In view of this, it is unnecessary for me to carry out the same exercise in writing these reasons. Instead, I have edited the summary prepared by Counsel Assisting, to the extent I consider appropriate, including ensuring that all references to the person who caused Mr McCulloch’s injuries are to “VH”, and I have attached it as Annexure A to these reasons.

Summary of Events

  1. Sergeant Casey prepared an extremely useful timeline of the events leading up to and after Mr McCulloch’s death. The timeline was prepared with a high level of precision and sourced from actual records, which were subsequently tendered at the hearing. In her submissions, Counsel Assisting set out a summary of the material facts surrounding Mr McCulloch’s death, which was drawn the timeline. The summary, together with italicised comments made by Counsel Assisting, referrable to the evidence before the Court, is as follows (I have amended the summary so that all references to the person who inflicted Mr McCulloch’s injuries are to VH):

Prior to 20th January 2012

·Prior to 9th August 2011 Mr McCulloch had lived independently. Following a fall on 9th August 2011 he was conveyed to Manning Base Hospital. Following concerns during his admission he was transferred to Kularoo Gardens on 1st September 2011 where the staff raised concerns about his tendency to wander and other behavioural issues. On 19th September 2011 Mr McCulloch was transferred to Riverview Lodge in Wingham to address his problematic behaviours. On 31st October 2011 it was determined that there was no longer any need to house Mr McCulloch in Riverview Lodge and he was discharged back to Kularoo Gardens on 3rd November 2011. On his return his behaviour deteriorated and it was determined he would be transferred back to Riverview Lodge on 18th November 2011 with a long term plan for appropriate accommodation in Canberra. He was formally discharged from Kularoo Gardens on 20th December 2011 and returned to Riverview Lodge. On 20th January 2012 he was transported from Wingham NSW by air ambulance to Canberra Airport where he was conveyed to Jindalee Aged Care Residence on the afternoon of 20th January 2012.

20th January 2012

·1420 hours on 20th January 2012 Charles McCulloch was admitted as a new resident to Jindalee. He was allocated Room 43 Bed A. It was noted on his admission records he was at risk of falls;

·Other residents in Room 43 included Frank Noble Bed B, VH Bed C and John Durr Bed D.

21st January 2012

·0650 hours on 21st January 2012 Mr McCulloch was awake during the night. Staff put him back to bed;

·0700 hours Tim Yappa (Assistant in Nursing) started his shift. He entered the nurses station and noted that he was allocated to area 3 which included Room 43;

·0700 hours Bobby Joseph (Assistant in Nursing)  started his shift. He entered the nurses station and noted that he was allocated to area 1;

·0705 hours Tim Yappa checked the residents in Room 43 Beds C and D. He also checked Room 44, Room 45 Bed A and B and Room 47;

·0705 hours Bobby Joseph received a handover from Mouhammad Awali. He observed Frank Noble (allocated to Room 43 Bed B) in the dining room. Mr Joseph and Mr Awali entered Room 43. Mr Joseph noted that a “male from Bed A was standing in the ensuite”. This was later confirmed as Mr McCulloch. Mr Joseph assisted Mr McCulloch back to bed. He observed VH was in Bed and John Durr was in Bed.

·0705 Mr Yappa reported that he observed Mr McCulloch asleep in Room 43 Bed A. [The timing of the observations made by Bobby Joseph and Tim Yappa is inconsistent – it may be that Mr Joseph put Mr McCulloch back to bed before he was observed by Mr Yappa given that Mr Awali (night shift staff member was still present for a handover]

·0705 hours Tafa Tichivangana (Assistant in Nursing) started her shift. She entered the nurses’ station and noted that she was allocated area 4. She was partnered with Tim Yappa;

·0705 VH was observed by Tim Yappa asleep in Bed Room 43 [This evidence is consistent with Mr Joseph’s evidence];

·0705 John Durr was observed by Tim Yappa asleep in Bed Room 43 [This evidence is consistent with Mr Joseph’s evidence];

·0710 Mr Joseph did a “head check” of residents in Room 39, Room 40 and Room 41 in allocation areas 1 and 2;

·0710 Mr Yappa assisted Lilly O’Brien with a shower;

·0710 Mimi Endo (Registered Nurse) started her shift and received a handover from Sheeba Matthews;

·0715 to 0720 Ms Endo and Ms Matthews (Registered Nurse) walk to the Jindalee Pharmacy together to collect medication;

·0725 Mr Yappa assists other residents within allocation area 3 with washing, changing and dressing;

·0725 Mr Joseph returned to the nurses station to check the allocation folder. He showered, shaved and dressed KB in Room 40 Bed C;

·0725 Sunil Varughese (Assistant in Nursing) started his shift late. He entered the nurses’ station and noted he was allocated to area 2. He was partnered with Mr Joseph. He assisted Mr Joseph with resident DP in the bathroom and washed and changed him;

·0725 Ms Tichivangana went to the dining room to check on residents. She observed Frank Noble seated in the dining room. She did a “head check” of residents in Room 45 Beds A and B and Room 46. She observed Tim Yappa in the corridor with another resident. She saw Mr Yappa proceed to the dining room while she continued to check on residents in Rooms 47, 48 and 49.

·0725 Ms Tichivangana checked on Maureen Magliulo in Room 46. She observed her door alarm was not in use. She observed Magliulo was asleep in her bed. She did not observe any injuries on her;

·0730 Mr Joseph escorted resident KB to the lounge room. He observed Mr Varughese in the lounge room and Ms Endo preparing medication on the medication trolley;

·0730 Ms Tichivangana checked residents in Room 48. She observed resident EW was asleep. Resident Mary Faulkner was also asleep. She did not observe any injuries on Ms Faulkner;

·0730 Mr Yappa commenced preparing breakfast for residents in the dining room with Mr Varughese;

·0735 Mr Joseph hears someone yelling “help me help me” from Room 43. Mr Joseph and Mr Varughese enter Room 43 and observe John Durr bleeding from his face.VH was standing in Room 43. Mr Joseph informed Ms Endo about the incident. Ms Endo entered Room 43 and told staff to separate Mr Durr and VH. Mr Yappa also enters Room 43. VH walks out of Room 43 holding his neck with both hands. Mr Yappa takes John Durr to the lounge room to clean his face;

·0740 Mr Varughese assists Mr Joseph in changing resident RS in Room 39. Mr Varughese leaves Room 39 where Mr Joseph remains;

·0740 Ms Endo goes to Wing C with the medication trolley and starts preparing and administering medication to residents in the dining room;

·0740 Ms Tichivangana goes to Room 47 and assists resident BO with a wash and changes her clothes;

·0745 Mr Yappa says he hears shouting in Room 43. He enters Room 43 with Mr Varughese. He observes VH and John Durr facing up to each other. Mr Yappa observes blood on John Durr’s cheek. Mr Yappa claims he noticed Mr McCulloch “out of the corner of his eye” still asleep in his bed and he did not notice anything unusual; [This timing 0745 is likely to be more accurate rather than 0735 as asserted by Mr Joseph. Mr Varughese did not start his shift until 0730. He and Mr Yappa had started to prepare breakfast when they went to Room 43 following the shouting]

·0746 Ms Endo hears John Durr yelling “that man again”. Ms Endo enters Room 43 and observes Mr Joseph and Mr Varughese with John Durr. She observes Mr Durr is bleeding and VH standing in the room watching John Durr. Ms Endo directs Mr Joseph and Mr Varughese to separate VH and Mr Durr;

·0746 Mr Yappa in Room 43 gets between VH and Mr Durr to separate them. Mr Varughese takes John Durr to the lounge room while Mr Yappa takes VH to the dining room;

·0746 Mr Varughese walks to the dining room to start preparing breakfast with Mr Yappa. He had a conversation with Mr Joseph about the breakfast [This timing is inconsistent with Mr Joseph’s timing that the alleged shouting by John Durr occurred around 0735. It was probably later and closer to the time given by Ms Endo at about 0746];

·0746 Mr Joseph and Mr Varughese take resident MMVIC to Room 40 to shower and change him. Mr Varughese left the room and Mr Joseph took MMVIC to the lounge room and seated him next to resident KB [This timing is inconsistent with Mr Joseph’s timing that the alleged shouting by John Durr occurred around 0735. It was probably later and closer to the time given by Ms Endo at about 0746];

·0746 Mr Yappa takes VH to the dining room and gives him breakfast;

·0750 Ms Endo takes VH to the dining room and asks Mr Yappa to clean the blood off John Durr’s face. Ms Endo continues her medication round [The evidence as to who took VH from Room 43 after the incident with John Durr is inconsistent and varies between Mr Yappa and Ms Endo];

Ms Endo and Mr Yappa continually tell VH to sit down and eat breakfast. VH eats some breakfast and then says he wants to return to his room;

·0750 Ms Endo administers medication to Maureen Magliulo. She did not observe any injuries on her at that time;

·0750 Mr Varughese was in the dining room when he heard “help me” coming from Room 43. He and Mr Yappa and Mr Joseph went to Room 43 and observed Mr Durr sitting on his bed crying with blood on his face. He and Mr Joseph took Mr Durr to the lounge room and Mr Yappa cleaned Mr Durr’s face;

·0751 Mr Joseph is assisting Mr Varughese and Ms Tichivangana to prepare breakfast. Mr Yappa is also assisting with breakfast;

·0754 Ms Tichivangana takes breakfast to residents in Rooms 46, 47 and 48;

·0757 Ms Endo walks VH back to the entrance of Room 43 and returns to medication duties;

·0757 Ms Tichivangana feeds Maureen Magliulo her breakfast. She does not observe any injuries on Ms Magliulo at the time;

·0757 Ms Tichivangana takes breakfast to Mary Faulkner who refuses to get up. She leaves her breakfast on a side table;

·0758 Mr Yappa and Mr Varughese assist residents in the dining room and lounge room with breakfast. Mr Joseph and Ms Tichivangana are attending to serving breakfast to residents in their rooms;

·0758 Mr Joseph asks Mr Yappa about breakfast for Mr McCulloch. Mr Joseph takes Mr McCulloch breakfast to Room 43. He observes something under the covers but was unsure whether there was a person underneath. Mr Joseph lifted the covers and observed blood coming from Mr McCulloch’s nose and mouth. He left the room and called out to Ms Endo to come to Room 43;

·0758 Mr Joseph said he called out to Ms Endo to “come and check” in Room 43. Ms Endo enters Room 43 and Mr Joseph points to Mr McCulloch. Ms Endo observes Mr McCulloch and sees blood on the wall. She pulled the quilt back. She said she believed Mr McCulloch was dead. She did not check his vital signs for signs of life;

·0759 Mr Joseph recalls Ms Endo entered Room 43 with him and he lifted the quilt back and showed Ms Endo Mr McCulloch. Ms Endo screamed and left the room. Mr Joseph covered Mr McCulloch with the quilt and left the room. He did not recall if any other person was in the room when he found Mr McCulloch;

·0759 Mr Yappa recalled that Mr Joseph organised to take breakfast to Mr McCulloch;

·0800 Ms Endo recalled that Mr Yappa was in the dining room and she yelled out to Mr Yappa to “come” to Room 43. She said they entered Room 43 together and Ms Endo showed Mr Yappa Mr McCulloch;

·0800 Mr Yappa recalled that he was in the dining room and he heard Mr Joseph call out to Ms Endo who was at the medication trolley. He observed her go to Room 43. Ms Endo then called to him to “come” and they entered Room 43 together. Mr Yappa observed blood on the wall and pillow around Mr McCulloch’s bed and formed the view he was deceased. He recalled that Mr Durr was at that time seated in the lounge room;

·0800 Mr Varughese observed Ms Endo, Mr Joseph and Mr Yappa coming out of Room 43. Mr Joseph told him “someone has hit Charles and he has blood on his face, he is not sure if Charles has died.”  Mr Varughese observed that Mr Durr was seated in the lounge room at that time;

·0801 Ms Endo walked around to reception to phone management. She looked through the staff phone book in an attempt to phone Jo Costuna (a Director of Nursing);

·0801 Ms Tichivangana was told by Mr Yappa that a resident had been found deceased and another resident, VH, had killed him;

·0802 Mr Varughese went to Room 43 and looked through the space between the door and saw someone who appeared to be sleeping in Room 43 Bed A. He did not observe any other residents in that room. Mr Durr was still seated in the lounge room;

·0802 Ms Endo phones Jo Costuna on a landline and tells her she has found Mr McCulloch dead. The call lasted 2 seconds;

·0804 Ms Endo phones Jo Costuna on a mobile number. The call lasted 368 seconds;

·0810 Ms Endo phones CALMS. The call lasted 92 seconds;

·0813 Ms Endo phones SS on a landline. The call lasted 95 seconds;

·0814 Ms Tichivangana observes Mr Varughese standing outside Room 43 and they discuss Mr McCulloch. Ms Tichivangana enters Room 43 and at Bed A observes Mr McCulloch lying underneath a quilt covered from head to toe. No other person was observed in the room however Ms Tichivangana did not know if a person was in the toilet. Ms Tichivangana left Room 43 and spoke to Mr Varughese as she left;

·0816 Ms Endo phones Mr Anthony McCulloch (son of the deceased) on a landline. The call lasted 0 seconds;

·0818 Ms Endo phones Mr Anthony McCulloch on a mobile number. She left a message lasting 28 seconds;

·0818 Mr Yappa left Room 43 and returned to breakfast duties;

·0820 Ms Endo receives a phone call from Jo Costuna’s landline number. The call lasted 203 seconds;

·0821 Ms Tichivangana resumes her duties. She enters Room 48 Bed C and observes Mary Faulkner has red spots on her check. Ms Faulkner tells her “I want to get out of this place. A man has hit me.” Ms Tichivangana took Ms Faulkner to Bed A (a vacant bed) to change her and then took her to the dining room. She observed Mr Yappa in the dining room;

·0822 Ms Endo receives a phone call from Anthony McCulloch. The call lasted 150 seconds;

·0823 Ms Endo recalls Ms Costuna phoned her from a landline. The call was 0 seconds;

·0824 Ms Endo received a phone call from Sheba Matthews in H wing. Ms Endo advises her she has found a resident deceased;

·0824 Mr Varughese observes a doctor enter Room 43;

·0826 Ms Endo observed Ms Matthews enter C Wing to check if Ms Endo was okay;

·0827 Ms Endo observed Ms Matthews return to H Wing;

·0828 Ms Endo enters H Wing and discussed Mr McCulloch’s circumstances with Dr Weber;

·0830 Mr Joseph says he left Room 43 to resume other duties;

·0830 Ms Endo and Dr Weber return to C Wing and enter Room 43;

·0831 Ms Endo receives a phone call from CALMS. Duration 0 seconds;

·0832 Ms Endo and Dr Weber enter Room 43 and observe Bed A and notice that Mr McCulloch is covered with a quilt. Under the quilt is a pillow covering his face. VH was present in the room seated on a chair. Dr Weber and Ms Endo notice VH has blood on his hands;

·0835 Ms Endo spoke to Mr Yappa, Mr Joseph and told them not to enter Room 43 and not to clean John Durr or VH’s hands;

·0837 Ms Endo and Dr Weber return to H Wing;

·0839 Ms Endo receives a phone call from CALMS. The call lasted 366 seconds;

·0847 Ms Endo receives a phone call from Cheryl Hart (a Director of Nursing). The call lasted 49 seconds;

·0850 Ms Endo receives a phone call from Cheryl Hart. The call lasted 66 seconds;

·0851 Ms Endo returns to C Wing nurses office to obtain Mr McCulloch’s details;

·0853 Ms Endo phones police. The call lasted 220 seconds;

·0856 Ms Endo receives a phone call from ACT Ambulance Service. The call lasted 66 seconds;

·0857 Ms Endo receives a phone call from police. The call lasted 63 seconds;

·0906 Ms Endo escorts ACT Ambulance officers to Room 43. VH is sitting on a chair in Room 43 when they arrive;

·0907 Cheryl Hart and Jo Costuna arrive at Jindalee;

·0910 Sue Scott arrives at Jindalee;

·0910 ACT Police arrive at Jindalee (Acting Sergeant Dean Chichi, Constable Robert Barron, Constable Nicholas Eliades and Stephen Gamara;

·0911 Mr Howden is observed in the dining room with Mr Yappa;

·0911 Ms Endo, Ms Costuna and two ACT Ambulance officers informed police of ACT Ambulance findings;

·0911 in Room 43, Mr Arnemann ACT Ambulance officer shone a torch in the deceased’s mouth and found foreign material in his throat which was then observed by Constable Gamara. All police then left the room;

·Acting Sergeant Chichi makes arrangements for AFP forensics and members of the criminal investigation team to attend Jindalee;

·0913 or 0920 Ms Tichivangana enters Mrs Magliulo’s room 46 and observes a doona cover pulled up to her head. She uncovers the doona and observes Mrs Magliulo has a pillow covering her face and blood coming from her nose. Ms Tichivangana leaves the room and advises Sue Scott of her observations and asks her to come and she what has happened;

·0914 Ms Tichivangana and Sue Scott enter Room 46 and observe Mrs Magliulo. Ms Scott leaves to get Cheryl Hart;

·0915 Ms Tichivangana observes Cheryl Hart, Sue Scott and police enter Room 46 and observe Mrs Magliulo’s injuries;

·0915 Ms Endo is told by Cheryl Hart that Mrs Magliulo was found to be bleeding with a pillow covering her face;

·0926 Acting Sergeant Chichi conveyed information to ACT police that a deceased male at Jindalee appeared to have a wound to the back of the head and material in his mouth;

·0938 to 0940 phones calls made in an attempt to contact a VMO;

·0939 to 1500 Ms Tichivangana remains with Mrs Magliulo until the end of her shift;

·0949 Ms Endo says that a VMO contacted Sue Scott who then returned the phone call advising that Mrs Magluio had been found with blood on her nose and that he needed to come to Jindalee;

·Between 0930 and 1000 Ms Endo enters Room 48 and observes Mary Faulkner’s face is bruised (Transcript, 4 May 2015, pp 49 – 50). She notifies Cheryl Hart and Sue Scott;

·1200 Ms Endo records in the Progress notes that Mr Howden was aggressive in the morning and was seen to be involved in a quarrel between one of the residents in the wing. The other resident complained of being hit by Mr Howden. An incident report was also completed;

·1330 Ms Endo records in the Progress notes that Mr McCulloch was located with blood on his face. She altered a reference to Mr McCulloch being found with a blanket covering him and changed the entry to a “pillow and blanket;”

·An entry was made by Jo Costuna advising staff not to say anything.

Issues Arising

  1. After having considered the brief of evidence prepared by Sergeant Casey, it was clear that I had sufficient basis to make the findings required by s 52 of the Act. The primary purpose to be served by the public hearing was to ascertain what , if any, systemic issues were present at Jindalee which enabled a resident of the dementia ward to physically attack three other residents, one of whom died as a result, without him being seen to attack them, and not being prevented from doing so.

  2. The issues that were explored in the hearing included the following -

    ·Whether supervision arrangements for residents of Jindalee, particularly Mr McCulloch, were adequate and/or appropriate, having regard to the fact that three residents sustained physical injury and it is probable that Mr McCulloch was killed by one of the residents, in that facility on 21 January 2012 (“the safekeeping of all residents and supervision issue”);

    ·Whether changes (if any) to supervision arrangements, the treatment and care for residents (including the ratio of staff to residents in Jindalee are sufficient to prevent the physical injury and/or death of any resident in the future (‘the changes to supervision issue”);

    ·Whether there is a need for CCTV monitoring of residents with severe dementia (“the CCTV issue”);

    ·Whether there is a need to implement interim care plans for residents before a new resident’s assessment is complete and before a new resident’s final care plan is undertaken (“the interim care plan issue”); and

    ·Whether the Jindalee protocols for responding to suspicious deaths, reporting reportable deaths to the coroner and reporting assaults as required by the Aged Care Act 1997 (Cth) are appropriate (“the reporting issue”).

Submissions

  1. Counsel Assisting and Counsel for Jindalee have provided me with detailed and comprehensive submissions. Counsel for Mr McCulloch’s family has also provided me with written submissions, mainly directed at suggested recommendations. I do not propose to discus the submissions and counter submissions in detail. It is sufficient for me to say that I have read them, considered them carefully and found them to be most helpful.

Comments in respect of the issues

  1. In making comments, I have kept in mind the functions of a coroner discussed in paragraphs 7 to 9 above and I have particularly avoided ascribing blame to any individual or Jindalee. The comments I make are based on the facts disclosed by the evidence and are assisted, to some extent, by hindsight.

The safekeeping of all residents and supervision issue

  1. I am not satisfied that there was generally a lack of supervision of residents by the staff of Jindalee working in the Casuarina Wing. The evidence of Dr Jones, Ms Neale, Ms Costuna and Ms Hart, as well as the feedback report from the Department of Health and Aging, following that Department’s review consequent upon the report to it of Mr McCulloch’s death, satisfy me that the Casuarina Ward was generally well run, and that the staff employed in it were experienced, caring and dedicated to their respective roles, in a difficult environment due to the unfortunate physical and mental condition of the residents.

  1. While there were some issues in relation to the recording of resident monitoring and the administration of drugs, I do not consider that these had any relevance to the death of Mr McCulloch. However, such matters are undesirable. I am satisfied that Jindalee has been alerted to these matters as result of this inquest and will address them.

  1. Whilst I am satisfied that, once Mr McCulloch was found injured in his bed, things in the ward became somewhat chaotic, I am not satisfied that they had been so prior to that time. The evidence suggests that, until that time, it had been a fairly usual morning, even allowing for the incident between VH and Mr Durr. The chaos which followed the discovery of Mr McCulloch injured in his bed flowed from the very nature of the discovery by staff members, who although experienced and having been exposed to death regularly, were shocked by the nature of Mr McCulloch’s injuries, they having never before experienced such an event.

  1. I am also satisfied that, notwithstanding what Counsel Assisting and Counsel for Mr McCulloch’s family have submitted, there was no reason for the staff of Jindalee to anticipate that VH would assault other residents in the way that Mr McCulloch, Ms Faulkner and Ms Magliulo were assaulted. Clearly, they were aware of an issue between Mr Durr and VH, but nothing in VH’s records or staff observations of him after his admission to Jindalee suggested he would engage in the degree of violence to which Mr McCulloch and Ms Faulkner were subjected. In this regard, I am mindful not to judge things with the benefit of hindsight.

  1. In my view, two significant issues are that, following the quite violent altercation between VH and Mr Durr on the morning of 21 January 2012, which occurred in Room 43 and which resulted in Mr Durr bleeding quite profusely, and in view of the fact that the staff were aware of a complaint made by Mr Durr three days before that VH had assaulted him,

    ·     the staff did not check the welfare of the other residents of Room 43, particularly Mr McCulloch; and

    ·     VH was only monitored by staff for a relatively short period after the incident and then permitted to return to his room unaccompanied and unsupervised with the possibility that other residents were then in the room.

  2. In my view, knowing about Mr Durr’s previous complaint, and then intervening in the incident between him and VH in Room 43 that morning, it was incumbent upon the staff who intervened to not only separate and distract VH and Mr Durr, but to also check the welfare of other residents in the room. Although the altercation seemed to be limited to between Mr Durr and VH, the staff had no basis for concluding that the violence apparently engaged in by VH had been limited to Mr Durr. In these circumstances, it is entirely possible that VH had attacked Mr McCulloch before his altercation with Mr Durr, and even that Mr Durr had intervened to stop the attack. If this were the case, immediate attention to Mr McCulloch, who may have still been alive, may have had a significant effect on the outcome.

  3. Similarly, with the knowledge to which I have referred, and the knowledge that VH was very territorial, it is my view that the staff should have placed VH under much closer supervision than he was following the altercation with Mr Durr. In particular, I do not consider it appropriate that he was allowed to return to Room 43, unsupervised and unaccompanied, without a check of the welfare of the other residents of that room having been conducted, and without staff having checked who was going to be present in the room when he returned to it. Given VH’s territorial nature and the fact that the altercation with Mr Durr occurred in VH’s room, Room 43, it seems to me that it would have been prudent, in ensuring the safety of other residents of Room 43, for a staff member to have accompanied VH to his room and an assessment carried out as to whether he should remain there, unsupervised, with other occupant’s of the room. Although, VH had seemed to settle down after the altercation, and indeed appeared quite calm when the staff intervened between him and Mr Durr, and was not exhibiting any aggression, bearing in mind Dr Jones’s evidence as to the nature of dementia and the unpredictability of conduct by sufferers and the fact that the aggression towards Mr Durr had been repeated, it should have been anticipated by staff that VH may again become territorial and aggressive to someone he found in his room. Had VH been accompanied back to his room, and Mr McCulloch was found there, the staff would have been in a better position to ensure Mr McCulloch’s safety, particularly being aware, as they should have become upon reviewing the documentation that accompanied him, that he had a tendency to wander. If he was then alive, the staff could have ensured that he moved to a communal area, or that VH be returned to a communal area until at least the busy part of the morning was over. If that had occurred, the outcome for Mr McCulloch, if he had not been attacked by that stage, may have been very different.

  4. A third significant issue is that Mr McCulloch was left to his own devices and unattended to from 7:05am to 7:58am. He was a resident who had been admitted the previous evening and whose bags remained unpacked at the time of his death. The documents which accompanied him indicated that he had a tendency to wander. In these circumstances, it is my view, that there should have been a much greater focus placed on introducing him into the facility and to its routines to ensure that he settled in well and to observe this process. Given that it was, or should have been, known by the staff that VH was very territorial, the fact that Mr McCulloch had a tendency to wander and suffered from severe dementia should have alerted the staff to the need to closely manage hiss introduction to an environment and people that were foreign to him.

  1. The fact that Mr McCulloch was not closely supervised and assisted was largely due to a staff scheduling arrangement which permitted the person assigned to care for him that morning not arriving until 7:30am. The result of this was that another already busy staff member was responsible for the care of Mr McCulloch until the assigned member arrived.

  2. Had the degree of supervision of Mr McCulloch been provided, as I have suggested, the outcome for Mr McCulloch may have been quite different.

  3. A fourth issue is that, following the examination of Mr McCulloch’s body by Dr Weber at 8:32am, VH was permitted to remain in room 43 with Mr McCulloch’s body until 9:06am when ambulance officers arrived. Although, by this stage, Mr McCulloch was clearly deceased, it was, or should have been, apparent to the staff that Mr McCulloch and been interfered with between the time RN Endo left the room until she returned with Dr Webber. In these circumstances, it was inappropriate to leave VH in the room, on his own and unsupervised, for a period of up to 34 minutes. Whilst, Mr McCulloch was then not at risk of further harm, it was important, given the fact that Mr McCulloch had clearly been assaulted, and not simply fallen out of bed or otherwise fallen over as one witness suggested might have occurred, to ensure that the person, who was by that stage suspected of causing the injuries to Mr McCulloch, be removed from the scene and monitored, for his own sake and safety, as well as to assist the obvious police investigation to come.

  4. A fifth issue is the failure of the nurse in charge of the ward to check Mr McCulloch’s vital signs immediately upon him being found injured in his bed. I accept her evidence, as an experienced nurse, that he was obviously deceased when she first saw him. I also understand her shocked reaction to what she saw. However, in my view, in the context of an aged care facility, death should not be determined by a mere viewing of the person, regardless of the nature of any injuries sustained, nor should the arrival of a doctor be awaited to confirm death.

  5. Although, I am satisfied that Mr McCulloch was deceased when he was seen by the nurse in charge, there may be cases where a person is assumed to be dead but later found to be still alive. In such cases, the failure to check vital signs could be disastrous.

  6. To the extent that the five matters to which I have referred may have resulted from inadequate training, inadequate protocols and a too ready acceptance of the fact that those with dementia can become uncharacteristically aggressive, I consider that training of staff in nursing homes and associated protocols be reviewed so as to introduce relevant changes guided by the events surrounding Mr McCulloch’s death.

    The changes to supervision issue    

  7. The question as to what changes to supervision arrangements and the treatment and care of residents (including the ratio of staff to residents) are sufficient to prevent physical injury and/or death of any resident in the future is a problematic one. This is so for a number of reasons, including the difficulty in managing residents suffering severe dementia, cost and regulation by a Federal Department.

  8. The evidence leaves me with the impression that Jindalee is generally a well run and managed aged care facility. This appears to be a view shared by the Federal Department responsible for providing funding and accreditation to the facility.

  9. On the evidence before me the staff to resident ratio appears to be appropriate, given the funding provided and the ratio in other similar institutions which are also accredited by the Federal Department.

  10. One comment I make in respect of this issue is the one expressed above. That is that a greater focus should be placed on new residents to ensure that their admission and orientation is managed and closely monitored, bearing in mind what is known about them and other residents with whom they will be interacting.

  11. A further comment is that, given the unpredictability of dementia patients who exhibit aggression and violence, the Director of Nursing and the Registered Nurse should be encouraged to call for additional support from another area of the facility when the need arises, particularly at busy times of the day, following an incident of aggression and violence between residents. If this means the engagement of more staff to enable this to occur when needed, that should be considered.

  12. In this matter, had a staff member been called in from another ward to monitor and supervise both VH and Mr Durr after their altercation, until at least the busy morning activities of the ward staff were over, the outcome for Mr McCulloch may have been different.

  13. Similarly, had such a staff member from another ward been called in to supervise VH after the discovery of Mr McCulloch injured in his bed, the outcome for Mrs Faulkner and Mrs Magliulio may also have been different.

  14. I note that, subsequent to Mr McCulloch’s death, significant changes have been made at Jindalee. An additional staff member is now rostered on each shift on C Wing, including nightshifts. A Director of Nursing is now rostered on duty each Saturday and Sunday (at the time of Mr McCulloch’s death  these senior managers were not required to be on duty on weekends). Six CCTV cameras have been installed in C Wing and monitor the main traffic and communal areas, with the surveillance monitor being located in the nurses’ station. New policies are in place such that a doctor is to be called every time there is a physical altercation between residents that is either witnessed by staff or where there is an allegation made by a resident.

  15. Additionally, Jindalee has done the following:

    ·introduced a policy of not accepting residents with a history of significant physical aggression without a known medical cause;

    ·recently, and subsequent to the hearing, further developed this policy to plan for only taking female dementia patients and separating male dementia patients with tenure from female patients;

    ·continued to develop policies for dealing with suspicious deaths as a result of issues identified during the inquest.

  16. These and further changes that have been made, or are proposed, at Jindalee are detailed in a letter addressed to my office from Mr Johnson, Managing Director, dated 11 July 2016. It is Annexure B to these reasons. The changes and proposed changes have been formulated with the recommendations urged by Counsel Assisting in her written submissions in mind and with a view to adopting them.

  17. I commend Mr Johnson and Jindalee for proactively introducing these changes.

    The CCTV issue

  18. A coronal recommendation has previously been made in an inquest relating to the death of a resident of Jindalee, following an incident there involving two residents in January 2007, concerning the installation of CCTV in the dementia unit of Jindalee, including the residents’ rooms. This recommendation has never been implemented.

  19. On the evidence before me, particularly that of Mr Jones, I am not satisfied that the installation of CCTV in residents’ rooms would be appropriate, or of much utility in increasing the safety of residents, let alone economically viable.

  20. One of the issues concerning the introduction of CCTV surveillance is the invasion of the privacy of residents. Dr Jones said a surveys of residents in other aged care facilities revealed that more than half of residents would object to the invasion of their privacy. Whilst the right to privacy may at some point, and in some circumstances, be regarded as being, on balance, of lesser importance when weighed against personal safety, I am not satisfied that is the case in aged care facilities.

  21. In my view, it would be well nigh impossible for an aged care facility to place sufficient cameras in every room of a dementia facility in order to monitor the movement and activities of every resident. Even if it could be achieved, it would require the constant observation of an array of monitors by one or more persons. Also, given the number of cameras and monitors that would be required, there would be every chance that an incident appearing to put the safety of a resident in jeopardy might occur without it being seen and, even if seen, the response may be too late to prevent violence occurring.

  22. Additionally, given that one of the purposes for installing CCTV is the deterrent effect on those under surveillance, it seems to me that residents suffering dementia are unlikely to be continually, or at all, aware of the presence of CCTV cameras. Thus the desired deterrent effect would not be achieved.

The interim care plan issue

  1. Counsel assisting drew attention to the report of Miss Neale in relation to the need for interim care plans.

  2. Ms Neale stated that interim care plans are a very important part of the admission documentation for a new resident of a dementia unit. They are required by staff to enable them to begin caring for the resident appropriately and safely. She expressed the view that interim care plans should be completed within 24 – 36 hours after admission of a resident, pending more detailed assessments to be completed over the next four to six weeks as part of the comprehensive care plan, and should be updated or changed as new information becomes known. She listed a number of categories of information that she considered an interim care plan should contain, and specifically noted the need for information about challenging behaviours and the likelihood of displays of physical aggression. She noted that she had not been given any documentation of behaviour assessment or monitoring of VH, notwithstanding that he had a documented history of domestic violence and challenging behaviour which escalated following his admission to the Casuarina Ward at Jindalee.

  3. Counsel for Jindalee submitted that when a resident is admitted, and as part of the admission process, an interim care plan is commenced but is not completed until approximately four to six weeks after the resident’s admission. This allows the resident to settle in to enable the resident’s behaviour, continence, blood pressure, mental health and cognitive function to be observed and assessed. In the interim, the lifestyle summary sheet, which is formulated on admission, provides staff with a snapshot of basic care needs and is available to all staff. If staff require further information, and whilst the care plan is being prepared and completed, the care plan is made available to all staff on computer. It was for this reason that neither Mr McCulloch’s nor VH’s interim care plans were completed as they were both still in the early stages of observation and preparation.

  4. Dr Jones gave evidence that observation of the person needs to last at least three weeks in order to gain a preliminary understanding of the resident. Dr Jones said the care plans start with information provided by family or other sources but it is only after settling in and observing the resident that an appropriate care plan can be completed. Dr Jones recommended that, in dealing with residents with dementia, the carer should have a good understanding of the person, which can assist the carer in making decisions when the person shows aggressive behaviour. Completion of the care plans take time to ensure that they used to their optimum. Once complete, and although taken to be complete, because the resident’s behaviour and, as a result their needs, are constantly changing, and because new information about the new resident becomes known and the various assessments are finalised, the care plans are documents that are constantly updated and can be regularly changed.

  5. I note that Mr McCulloch had only been admitted the night before his death. In these circumstances, no criticism can be levelled at Jindalee from not having an interim care plan drawn up for him.

  6. In relation to VH, I note that he had been at Jindalee for nine days prior to Mr McCulloch’s death. In this regard, Dr Jones expressed the opinion, that, because VH had only been a resident for that short time, his full needs and behavioural aspects could not be sufficiently determined to enable a care plan to be completed.

  7. It is clear that, in the short time that the VH had been a resident of Jindalee, the staff had developed some information about his absconding behaviour and an observation regime was put in place until a decision was made that it was no longer required.

  8. The known incidents of violence and aggression in which he was involved had occurred on 18 January 2012, between him and Mr Durr, and on the day of Mr McCulloch’s death, again between him and Mr Durr. The incidents were appropriately dealt with by staff at the time that they occurred. However, given that short time span, on the basis of Dr Jones’s evidence, there had not been sufficient opportunity to properly observe his behaviours for the purposes of formulating an interim care plan.

  9. Accordingly, I make no comment concerning the lack of interim care plans for Mr McCulloch and VH.

The reporting issue

  1. During the hearing, the adequacy of Jindalee’s protocols and procedures relating to the response by staff to suspicious deaths, reporting such deaths to the coroner and reporting assaults as required by the Aged Care Act 1997 (Cth) were examined.

  2. Jindalee’s compliance with its obligations under the Aged Care Act 1997 (Cth) to report assaults was examined by representatives of the Department of Health and Aging following Mr McCulloch’s death. It was found that Jindalee was complying, save that it was not recording the occasions when an available discretion not to report an assault was exercised. This issue has now been resolved by Jindalee.

  3. The staff response upon finding Mr McCulloch injured in his bed was, as I have said above, chaotic. It resulted in Mr McCulloch’s vital signs not being checked until Dr Weber’s arrival – 34 minutes after Mr McCulloch had been found in his bed. It resulted in the Police not being called to the scene until 8.53am – 55 minutes after Mr McCulloch had been found in his bed. It also resulted in VH (suspected at the time by some staff  to be the person who had injured Mr McCulloch) being left unsupervised and able to enter, and remain in, the room with Mr McCulloch after he was found, and quite likely to enter the rooms of Mrs Faulkner and Mrs Magliulio and harm them, and enabled someone (probably VH) to place a pillow over Mr McCulloch’s face at some time between 8.00am and 8.32am.

  4. It was not a satisfactory response. It is partly explained by the shock and distress of the staff caused by the discovery of Mr McCulloch and partly by the uniqueness of the event in the experience of the relevant staff. However, it was also explained by the lack of an appropriate protocol for dealing with such events.

  5. I am satisfied that the proposed protocol drafted by Constable Tristan Thexton, which is Attachment C, addresses all the issues concerning the appropriate response to an event such as the one involving Mr McCulloch.

Formal Findings

  1. As required by s 52 of the Act, I make the following findings –

    ·The deceased was Charles Rowan McCulloch, born on 4 February 1917;

    ·he died in Room 43, Casuarina Ward, Jindalee Aged Care Residence, Goyder Street, Narrabundah in the Australian Capital Territory at some time between 7.05am and 7.35am on 21 January 2012; and

    ·he died as a result of blunt head and neck trauma inflicted upon him by another resident of Jindalee Aged Care Residence.

I found no matter of public safety arising in connection with the inquest into Mr McCulloch’s death.

Recommendations

  1. I propose to make a number of recommendations. In making them, it is not to be implied that I have found general, or any specific fault, with the running and management of Jindalee beyond the matters on which I have commented. Many inquests result in matters surrounding the death being investigated and issues identified which, although they did not play a part in causing, or hastening, the death, appear as matters which might prevent similar deaths in the future, matters which will improve coronial investigations into such matters in the future or benefit the system of justice generally

    .

  2. I make the following recommendations –

    (a)The policy recommended by Constable Tristan Thexton in relation to suspicious deaths and matters to be referred to the Coroner, which is Annexure C to these reasons, be adopted and implemented by Jindalee and all other aged care facilities in the Australian Capital Territory;

    (b)Staffing requirements of aged care facilities be reviewed and a minimum staffing requirement be set for dementia specific units of aged care facilities such as C Wing at Jindalee. I note that a T – BASIS unit has a maximum of 16 residents at any one time, each housed in individual rooms. There is a registered nurse on duty at all times, with an additional three staff until 9 pm, and then an additional staff member until the commencement of day shift. In addition, a nurse manager is rostered on during the day. This should be the minimum staffing requirement for residents who suffer from dementia.

    (c)Compulsory mandatory minimum training be implemented for staff employed in aged care facilities who are required to care for and deal with residents who have been diagnosed with dementia;

    (d)To ensure the safety of both residents and staff of Jindalee, and all other aged care facilities with dementia specific units, with the assistance of an eternal provider with expertise in aged care, undertake a review and/or implementation of policies and procedures including but not limited to:

    ·behavioural management strategies for staff for the management of residents with dementia and specifically with those who have a tendency to be aggressive;

    ·mandatory reporting, and recording, of all incidents of violence of any level between residents , between a resident and a staff member or between staff members;

    ·procedures for dealing with deceased residents; and

    ·development and implementation of an efficient record keeping system, preferably electronic;

    (e)To ensure the safety of both residents and staff, Jindalee and all other aged care facilities undertake, with the assistance of an eternal expert provider in aged care, training or updating in Compliance with Elder Abuse reporting and maintenance of a register in accordance with the requirements of  the Aged Care Act 1997 (Cth.).

    (f)Jindalee undertake a review of the staff structure within the facility so as to ensure that management fulfil their requirement to supervise and monitor staff and ensure task compliance.

    (g)That the discretion reposing in the management of aged care facilities to determine whether an assault is a “reportable assault” under the Aged Care Act 1997 (Cth.), where a resident has a cognitive impairment, be removed and that there be a requirement for mandatory reporting of all assaults in aged care facilities.

  3. Mr McCulloch’s family has requested, through their Counsel, that I make a recommendation which, if adopted, will allow families who are considering placing their aged relative in an aged care facility to make an informed decision as to whether a placement poses an unacceptable risk to the safety of their relative, and whether the relative has capacity to cope in the environment of the facility.

  4. The feasibility of adopting the recommendation was not canvassed during the hearing. I have no basis for knowing whether or not it could be implemented. However, it seems to me that it may be capable of being implemented and, if necessary and appropriate, imposed. Accordingly, I make the following recommendation –

    (h)that all aged care facilities with a dementia unit be required to disclose to families of prospective residents of the unit, prior to their admission, the following:

    ·the level of risk of violence for potential residents (taking into account their particular circumstances); and

    ·the established protocols for protecting residents from witnessing and/or experiencing regular violent events; and

    ·the protocol for advising relatives of violent incidents as they occur, such that the relatives are able to reassess circumstances from time to time.

  1. Ms Neale considered there were no tangible benefits to be gained by installing CCTV in residents’ rooms, because she believes that CCTVs in bedrooms are inappropriate for privacy reasons and they are unlikely to prevent incidents of physical aggression.[829]  A better way of handling physically aggressive residents is to provide one-on-one staff monitoring of the instigator until the resident is transferred to an acute psychogeriatric unit for assessment and management.[830]   She noted the financial costs of installing and monitoring CCTV in residential aged care facilities would be prohibitive.[831]

    [829] Exhibit 155, [91]-[93], [96]

    [830] Exhibit 155, [94]

    [831] Exhibit 155, [96]

  2. Ms Neale stated that interim care plans are a very important part of the admission documentation, and required by staff to enable them to begin caring for the resident appropriately and safely.[832]  Interim care plans should be completed within 24 to36 hours following admission, pending more detailed assessments to be completed over the next four to six weeks, as part of the comprehensive care plan, and should be updated or changed as new information becomes known.[833]   She listed a number of categories of information that she considered an interim care plan should contain, specifically noting the need for information about challenging behaviours and the likelihood of displays of physical aggression.[834]  She noted that she was not provided with any documentation of behaviour assessment or monitoring of VH,  notwithstanding he presented with a history of domestic violence and challenging behaviour which escalated following admission.[835]   Ms Neale also noted that Jindalee’s policies scheduled behaviour assessments in week two following admission, stating that such scheduling is normal practice under the requirements of the Aged Care Funding Instrument, which does not allow for services to claim for challenging behaviours exhibited within the first seven days after admission.[836]

    Evidence of Tristan Eric Thexton

    [832] Exhibit 155, [99]

    [833] Exhibit 155, [103]-[104]

    [834] Exhibit 155, [100]-[101]

    [835] Exhibit 155, [102]

    [836] Exhibit 155, [105]-[106]

  3. Tristan Thexton was recalled to give evidence on 21 April 2016.  He was shown the draft replacement Jindalee proposal in respect of suspicious deaths[837] and asked to comment, particularly on a question raised by His Honour in relation to whether a direct contact with the AFP Coroner’s officers would be appropriate.  Senior Constable Thexton gave evidence of four concerns he held in relation to direct contact with the AFP Coroner’s officers, as follows:

    ·      while the Coroner’s Office is always on call there is a possibility that calls to the work mobile phone might not be immediately answered (if for example the officer was attending a post mortem procedure), whereas calls direct to Police via 131 444 or 000 will be answered 24/7;

    ·      if the Coroners officer made a determination that a Police response was required (for example a patrol to secure the scene followed by crime investigators), that response would be directed from the Police operations centre and the Coroner’s officer would need to make an additional communication for that purpose, adding a level of delay;

    ·       it is easier to wind back an investigational response than to try to ramp up an initial inadequate response by which point evidence may already have been compromised; and

    ·      all calls made to 131 444 and 000 are recorded and may be used in a subsequent investigation, whereas calls to the Coroner’s office mobile are not routinely recorded.[838] 

    [837] Exhibit 152

    [838] Transcript 21.4.16 P83 L19-P84 L25

  4. Senior Constable Thexton also raised two further concerns in relation to the draft protocol. These are that the requirement to contact Police should not be constrained or restricted to witnessing an event, for example where a suspicion is held appropriately on the totality of the circumstances, and, while visitors and staff should be asked to remain in the facility, Jindalee have no power to ensure attendance and the protocol, as drafted, could incline staff to take actions that might constitute a wrongful arrest.[839]

    Evidence of Plaxy St Clair McCulloch

    [839] Transcript 21.4.16 P84 L27-P82 L5

  5. Plaxy McCulloch read an unsworn statement[840] onto the record on behalf of the McCulloch family during the hearing on 21 April 2016.  She recounted details of Mr McCulloch’s life and engagement with family, and his decline, dating from August 2011, when he fell and injured himself and was taken to hospital, where he was diagnosed with a rapidly progressing dementia.[841]  Ms McCulloch recounted the family’s anguish to find a nursing home for Mr McCulloch, first in his home town of Foster in NSW, and then in Canberra to be closer to family, to be finally told that a place was available at Jindalee.[842]  She said that, although Mr McCulloch’s family were unable to visit on the night he arrived and was admitted at Jindalee, the family were intending to visit him the next day, which was also Ms McCulloch’s birthday.[843]   Instead, the family found themselves dealing with his death.[844]   Ms McCulloch recounted the significant effects of Mr McCulloch’s death, and the events leading up to his death, had in relation to herself and each member of her family, saying that the lasting impact is likely to be a fear of nursing home environments which will only grow as family members age.[845]She said the family accepted it was likely to be inappropriate to lay blame at the feet of any individual staff member for the conditions that enabled Mr McCulloch’s death, but that there are likely to be systemic and ongoing factors that contributed to his death relating to staffing, training, regulations, funding arrangements and ageism, for which there are no quick cures.[846]

    Report by aged care complaints

    [840] later tendered as Exhibit 154 note non-publication order prohibiting the identification of any persons named in the statement (see Transcript 21.4.16 P89 L14-16)

    [841] Transcript 21.4.16 P87 L8-27

    [842] Transcript 21.4.16 P87 L28-39

    [843] Transcript 21.4.16 P88 L7-10

    [844] Transcript 21.4.16 P88 L10-15

    [845] Transcript 21.4.16 P88 L17-38

    [846] Transcript 21.4.16 P88 L38-P89 L2

  6. Sergeant Casey noted, in her evidence, that “On 23 June 2013 a report compiled by the Aged Care Complaints Scheme, part of the Department of Health and Aging, in relation to Jindalee's compliance with the issues relevant to the deceased's death was received. The report identified three issues to be considered by their investigators including the behaviour management of those residents identified as involved in the incidents which occurred on 21 January 2012 proximate to the death of Mr McCulloch, including a previous incident between two of those care recipients on 18 January 2012.

    The approved provider's - which is Jindalee's - plan for the management of care recipient's needs, with particular reference to resident safety, and the approved provider was not maintaining a consolidated register of reportable assaults in accordance with the requirements of the act. The report finds that further investigation relating to the first two issues should not be concluded, because the matter is subject to a coronial inquiry, and despite reasonable attempts the circumstances giving rise to the issues could not be determined.”[847] Sergeant Casey also noted that a Ms Costuna advised her in June 2013 that a number of changes had been made following Mr McCulloch’s death which included the following: “An additional staff member is rostered on for each shift on C wing including night shift. Six CCTV cameras have been installed in C wing and monitor the main traffic and communal areas. The surveillance monitor …and  a GP is to be informed every time there is a physical altercation between residents, either witnessed by staff or an allegation of the same is made by a resident.”

    [847] Transcript 5th May 2015 p131

  7. The Coroner asked Sergeant Casey whether she had had seen the CCTV cameras, whether they monitored the nurses station and whether they were being actually monitored by anyone on a constant basis or even an intermittent basis. Sergeant Casey said: “It's my understanding that it's a hub, it's where people go in and check their duty details and that sort of thing. So there's often people around. But I don't understand there to be one person standing in that room the whole time. So from the point of view of the utility of CCTV cameras, even if they were in the main thoroughfares and even in rooms, they'd only get much value if they were being constantly monitored or monitored on a very regular basis.”

  8. Sergeant Casey was asked questions about the requirement under the Aged Care Act in relation to Elder Abuse for the recording of reportable assaults. She noted that the JACR policy provided as follows:

    “Compulsory reporting of reportable assaults.

    Staff must immediately report if they see or suspect an assault on a resident. Staff          must report the incident to the RN in charge. The RN in charge must immediately   contact the DONs. The DONs must report to both the Police and the Office of      Aged Care Quality and Compliance within 24 hours of the altercation or the      allegation being made.”          

    Sergeant Casey said there was no report of an assault on Mr McCulloch.

ATTACHMENT C

Proposed Protocol for Australian Capital Territory (ACT) Aged Care Providers regarding Suspicious Deaths

Pursuant to section 13 of the Coroner’s Act 1997, the ACT Coroner has jurisdiction to investigate the manner and cause of death of a person who-

(a)dies violently, or unnaturally, in unknown circumstances; or

(b)dies under suspicious circumstances; or

(c)dies during or within 24 hours after, or as a result of—

(i)an operation of a medical, surgical, dental or like nature; or

(ii)an invasive medical or diagnostic procedure;

other than an operation or procedure prescribed by regulation to be an operation or procedure to which this paragraph does not apply; or

(d)dies and a doctor has not given a certificate about the cause of death; or

(e)dies not having been attended by a doctor at any time within the period commencing 6 months before the death; or

(f)dies after an accident where the cause of death appears to be directly attributable to the accident; or

(g)dies, or is suspected to have died, in circumstances that, in the opinion of the Attorney-General, should be better ascertained; or

(h)dies in custody. 

This protocol applies to deaths subject to the jurisdiction of the ACT Coroner, where they occur in Aged Care facilities in the ACT.

Nothing in this protocol prevents staff members in Aged Care facilities checking for signs of life and administering first aid to residents.

In the event that staff locate a resident who is deceased in circumstances that appear suspicious it is vital the deceased and their surrounding area not be disturbed in any way, and that measures are taken to preserve any evidence.

Additionally, the following must be carried out:

  • the resident must be checked for signs of life, and first aid administered by staff as deemed appropriate;
  • in circumstances where deemed necessary by staff, ACT Ambulance Service should be called to attend; and
  • ACT Policing must be contacted immediately on ‘000’ in an emergency and 131444 at any other time.

ACT Policing must be informed:

  • that a resident has been located deceased in suspicious circumstances;
  • of any suspected cause of death (including injuries to the deceased);
  • of the details and last known location of any suspected offender; and
  • any other relevant details, including the name and address of the aged care facility.
  • staff at the aged care facility’s reception area are to be notified of impending Police attendance and be in a position to escort Police to the deceased’s location; and
  • staff are to carry out any directions provided by ACT Policing.

The following must be carried out:

  • a staff member must remain with the deceased until otherwise directed by a member of ACT Policing.  That person should record notes of their involvement, including the time they were allocated to remain with the deceased and any other relevant events;
  • if the deceased is located in a common area, ensure other residents are moved away from the area;
  • in the event staff have any suspicion that the deceased’s death was caused by another person, where safe a staff member must be assigned to remain with the suspect until otherwise directed by a member of ACT Policing.  That staff member will ensure the suspect remains in the same clothing and is not washed (including their hands);
  • staff should conduct a welfare check of all other residents in the area.  A record should be made of which staff member/s conducted the welfare check and the residents checked by them;
  • staff should immediately advise a member of ACT Policing of other residents with recent injuries as identified during the welfare check;
  • any visitors to the facility should remain there until otherwise directed by a member of ACT Policing.  If visitors insist on leaving a record should be made of their details, a description of their appearance, details of any vehicle they depart in and the time they left the facility.  If the visitor is not known to staff photographic identification should be requested and details recorded; and
  • any cleaners and laundry workers operating at the residence should be stopped until otherwise directed by Police, including the emptying of bins, collection and washing of laundry throughout the residence.

The following conduct should not be carried out until otherwise directed by Police:

  • the deceased should not be disturbed in any way (this includes placing a sheet over them);
  • the deceased should not be moved;
  • the deceased should not be washed;
  • the deceased should not be touched, other than to check for signs of life and potentially administer medical assistance;
  • when the deceased dies after medical assistance, no apparatus should be removed from the deceased’s body;
  • the deceased’s family members should not be contacted; and
  • the deceased’s belongings should not be touched.

It should be noted that it is a criminal offence not to report a suspicious death to Police or the ACT Coroner.

Section 77 of the Coroner’s Act 1997

Obligation to report death

  1. A person commits an offence if the person—

(a)knows that a death has happened; and

(b)has reasonable grounds to believe that—

(i)a coroner would have jurisdiction to hold an inquest in relation to the death; and

(ii)the death has not been reported to a coroner or a police officer; and

(c)      does not report the death to a coroner or a police officer as

soon as practicable after becoming aware of it and having the

reasonable grounds mentioned in paragraph (b).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.


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R v Doogan; ex parte Lucas-Smith [2005] ACTSC 74