Bellara Aged Care P/L and Palm Gardens Retirement Home P/L v Eastern Health Authority Inc - [2008] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
BELLARA AGED CARE P/L AND PALM GARDENS RETIREMENT HOME P/L v EASTERN HEALTH AUTHORITY INC
[2008] SADC 96
Judgment of His Honour Judge Soulio, Assessor Mr P Pledger and Assessor Cr K Moorman
31 July 2008
ADMINISTRATIVE LAW
Supported residential facilities - appeal against condition imposed on licence.
Supported Residential Facilities Act 1992 s 29, s 32; Supported Residential Facilities Regulations 1994 reg 33; District Court Act 1991 s 42, referred to.
Moore v The Registrar of the Medical Board of South Australia (2001) 215 LSJS 133, considered.

BELLARA AGED CARE P/L AND PALM GARDENS RETIREMENT HOME P/L v EASTERN HEALTH AUTHORITY INC
[2008] SADC 96
Introduction

The appellants are each the proprietor of a supported residential facility. The facilities are licensed pursuant to the provisions of the Supported Residential Facilities Act 1992 and regulated by the Eastern Health Authority (‘EHA’). It has been the practice of each proprietor to provide one staff member on passive overnight duty to be on call for the needs, including the emergency and fire safety needs, of residents. The EHA has now renewed each licence subject to the condition that there be:
The provision of two appropriate staff on the premises at night, with at least one person awake at all times. Evidence in the form of staff rostering, time sheets and/or other documents must be provided as/when requested to verify ongoing compliance.
The proprietors appealed against the imposition of that condition.
The Appeal
An appeal as of right exists against a decision or order of a licensing authority, pursuant to s32(1) of the Supported Residential Facilities Act 1992.
The parties proceeded on the basis that the appeal was to the Administrative and Disciplinary Division of this court and was therefore to be conducted pursuant to s42E of the District Court Act 1991.
That section provides:
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
This appeal is therefore not a rehearing, and the court is not required to undertake a complete re-evaluation of the decision of the EHA. The requirement to give due weight to the original decision and to refrain from departing from the decision except for cogent reasons makes that clear. [1]
[1] Moore v The Registrar of the Medical Board of South Australia (2001) 215 LSJS 133.
While separate appeals were lodged by each appellant another judge of this Court granted leave to the parties to call further evidence and ordered that the appeals be heard together on the basis that similar issues are raised in each proceeding.
The grounds of appeal in each case are that:
1The condition is unreasonable and/or unnecessary and/or contrary to the policy of the Act.
2In the alternative, EHA erred in requiring the condition that there be two appropriate staff on the premises at night with at least one person awake at all times.
The power given to this Court on appeal includes the power to affirm the decision appealed against; to rescind the decision and substitute a decision that the Court considers appropriate; or to remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.[2]
[2] District Court Act 1991 s 42F.
The Issue
The purpose in imposing the condition upon the licence was to increase safety by providing a better system for the protection of residents in the event of a fire within the facility.
Regulation 33 of the Supported Residential Facilities Regulations 1994 provides:
33—Fire safety
(1)Reasonable precautions must be taken to protect the safety of residents of a supported residential facility from fire.
(2)     Without limiting subregulation (1), and other statutory requirements—
(a)     reasonable means of emergency exit for residents must be available at all times;
(b)     the facility must be maintained and managed in accordance with any recommendation of the relevant fire authority;
(c)     fire fighting equipment must be installed and maintained at a facility in accordance with any recommendation of the relevant fire authority;
(d)     emergency exits must be clearly marked and kept free of impediments;
(e)     an evacuation procedure for residents of the facility must be established at a facility and known to all staff and residents;
(f)    regular evacuation drills must be undertaken at a facility;
(g)     a floor plan or plans that show fire exits and emergency evacuation routes must be kept in an accessible place at the facility at all times.
It is common ground between the appellants and the respondent, based on the evidence called, that having one person on duty is not sufficient to deal with a fire emergency and does not constitute taking reasonable precautions to protect the safety of residents from fire. The respondent’s solution is, as we have said, to require two staff on overnight duty, at least one of whom is to be on active duty, that is, awake.
The appellants’ opposition to the imposition of the condition is twofold. First, the appellants have put in place an emergency response system utilising the staff member currently engaged on overnight duty, together with a number of “independent living” residents who reside in or adjacent to each facility and who act as wardens. As there is an effective and viable alternative in place, they say, the condition is unnecessary for the purposes of ensuring the safety of residents. Second, the condition requiring the employment of a second overnight worker on active duty rates, they say, is economically unviable.
The Evidence
The appellants called evidence at the appeal hearing from Mr Ryan, a fire safety expert, representatives of the proprietors or managers of each facility, and members of the respective emergency response teams.
The respondents called the experts relied upon by the EHA, Mr Wellman, a fire safety expert, and Mr Harmer, an engineer. In addition a significant number of documents were tendered, to which we will refer as necessary.
The consideration of each appeal differs, but only to a limited extent, by virtue of the differing nature of the premises, the age and health status of the occupants, and the technological measures in place to enhance fire safety. Accordingly it is necessary to set out some of the relevant evidence and our findings in relation to those factors particular to each of the appellants.
Bellara
The appellant is the proprietor of a facility known as the Bellara Village situated at 98 Newton Road Campbelltown. The building is a Class 9a building, - a health care building, which is a classification under the Building Code and means a building:
Whose occupants or patients undergoing medical treatment generally need physical assistance to evacuate the building during an emergency and includes a nursing home or similar facility for sick or disabled persons needing full time care.
Nursing care is however not provided at the Bellara Village and the residents do not require full time care. Supported residents are admitted subject to an assessment of their level of independence. Residents are required to be ambulatory, and in the event that a need for significant medical care arises, residents are hospitalised. Residents are not admitted if they are unable to attend to the basic aspects of daily living. They may reach a point where they require assistance with getting dressed or showering and that service is provided. However at the time of the hearing, for example, Bellara had eight residents with special needs including one deaf resident, four suffering Alzheimer’s or dementia, and two with other mental health problems. There are also supported residents who require assistance in relation to such matters as medication management and medical treatment.
In addition to the supported residents, there are ‘independent living’ residents located within the main building and in the 28 independent living units adjacent to the main building.
The Bellara Village is set out in a general L-shape. The main building contains 43 residential rooms. They are contained in five groups and have central hallways or passageways. In about the middle of one arm of the L-shape there is a complex containing the offices, kitchen facilities, dining room, lounge room and an additional room.
Photographs of the Bellara Village reveal that it is a reasonably modern, upgraded facility with wide passageways fitted with handrails on each side. Whilst the rooms open onto the passageways, courtyards are located between many of the groups of rooms. The rooms are separated into six compartments, comprising the five groups of residential rooms, and the central facilities compartment. The compartments are separated by fire rated firewalls. There are nine fire exits and an additional 23 alternative exits. The evidence was and we accept, that all walls, floors, carpets, ceilings, and control joints are fire resistant and conform to the applicable code.
A schedule of the fire safety features of Bellara was received as part of the evidence of Mr Russell, a director of Bellara’s proprietor. The premises are fitted with fire sensors throughout the building which are connected to a fire indicator panel. The complex is fitted with wall wetting sprinklers which are also connected to the fire indicator panel and which maintain the integrity of the particular compartment in which a fire may occur and is designed to stop fire spreading through the windows of rooms within compartments, to other compartments. There is a permanent connection between the fire indicator panel and the Metropolitan Fire Service. There is emergency lighting in the central complex including in the dining area, the office, the kitchen, and the duty employee’s room, as well as some 20 internally illuminated exit signs. Each compartment is fitted with fire hose reels, portable fire extinguishers, and has a fire hydrant installation located outside the building. In addition smoke detectors are located in every room, and in the hallways.
It is apparent that short of the installation of a ceiling mounted fire sprinkler system, Bellara is well equipped for fire safety purposes.
Palm Gardens
The appellant is the proprietor of a facility known as Palm Gardens and situated at 122 Reid Avenue Magill.
Palm Gardens is a hostel facility almost 20 years old comprising some 20 rooms. The requirements for residency are similar to those at Bellara. Again a schedule of fire safety features was received. The Palm Gardens facility is fitted with a fire indicator panel located next to the main entrance. The facility is divided into three fire compartments, one containing eight rooms and the other two six rooms. There are firewalls and fire doors separating the three compartments. There are five fire exits. All residents are on the ground floor and have doors which open directly to the outside, although there may be some obstruction to the outside doors because of furniture within the rooms. All walls, floors, carpets, ceilings, access panels and control joints are fire resistant. External doors unlock automatically in the event of fire. Four fire alarm systems are located in the common area of the building and there are fire alarm sirens in each room. The rooms are fitted with LED indicators outside the doors into corridors which indicate when a detector within a room has been triggered. The premises are also equipped with wall wetting sprinklers connected to the fire indicator panel. There are smoke detectors in each compartment and the premises are equipped with fire hose reels and portable fire extinguishers. The fire indicator panel is permanently connected to the emergency service.
Again it is apparent that Palm Gardens is well equipped for fire safety purposes.
The Emergency Response System
Both Bellara and Palm Gardens engaged the services of Mr Ryan, a fire safety expert, and the principal of First 5 Minutes Pty Ltd, to assess the fire safety requirements of the facilities, and put in place an emergency response system. Mr Ryan has similar qualifications and expertise to that of Mr Wellman, the expert relied upon by the respondent.
First 5 Minutes has implemented a significant number of emergency response procedures for premises in South Australia, and done so in accordance with the Australian Standard applicable to the type of building in question. In this case that is AS3745-2002.
The appellants tendered reports prepared by Mr Ryan, which set out the details of the emergency response procedures established. The reports are in large part from a generic document; reports in essentially the same terms having been tendered in relation to each facility.
Mr Ryan expressed the opinion that he did not consider that having two people available was sufficient to carry out the procedure he recommended.
He described an emergency incident in a supported residential facility as requiring investigation followed by the proper execution of the evacuation process. With two staff available, one person would be stationed at the emergency control point, the fire indicator panel, to liaise with emergency services, and the second person would attend within the facility and undertake the evacuation procedure. His concern related to the possibility of some harm coming to the person undertaking the evacuation, and the lack of communication between the emergency control point and the incident which would thereby result. He considered that it was far safer to send two people to initiate the evacuation and that accordingly the emergency response procedure required a minimum of three people.
The essence of the system put in place by Mr Ryan relates to the establishment of what is called the Emergency Control Organisation comprising an emergency co-ordinator, deputies, wardens, and other persons such as first aid providers, and communications officers. For present purposes residents have been appointed as fire wardens. Additional audible and visual warning devices have been installed in rooms occupied by the residents who act as wardens. Those alarms are activated by any circuit linked to the fire indicator panel.
Mr Ryan’s organisation having established the Emergency Control Organisations provided training and conducted practice drills.
The report in each case describes the responsibilities of the Emergency Control Organisation as including conducting an orderly evacuation of residents, assisting emergency services, and operating portable fire fighting equipment or fire hose reels in the building. The report identifies the duties of the emergency co-ordinator who is required to attend at the emergency control point within the building and take control, establish communications and assess the nature and extent of the emergency. The fire indicator panel is the emergency control point and Mr Ryan described that as being the point wardens would respond to in the event of an emergency.
The primary duties of wardens under the system is not to combat the fire but to ensure the safety of the occupants and their orderly evacuation from the danger zone. Whilst aspects of the training relate to the use and operation of fire fighting equipment, that is described as being a secondary issue, and the evacuation of residents takes greater precedence. Fire fighting is expected to be carried out by the emergency services.
Mr Ryan’s position therefore is in effect to agree with the Eastern Health Authority’s concern that one staff member is not sufficient, but to take the issue further and say that the simple appointment of two staff members on overnight duty is a less effective solution than his system.
Bellara’s Emergency Response Team
A proportion of the residents at Bellara are what has been described as independent living residents who occupy both part of the main facility, and residences on the property adjacent to the supported residential care facility. Independent living residents from both inside and outside the main facility may constitute the resident members of the Emergency Control Organisation. The living unit of one resident warden is situated, for example, some 80 metres from the entrance to the main building.
Evidence was called from two of the residents who are volunteer wardens, one aged 77, and the other aged 71. The evidence disclosed that no roster had been established to confirm which residents were on call. One of the witnesses said that if he was first to the control panel he understood that he would take the role of chief warden.
Palm Gardens Emergency Response Team
All resident wardens live outside the main complex. Evidence was given by Ms Dibbins who was proposed as a resident warden for Palm Gardens. She was 77 years of age. She frankly said that some, although not all, of the residents within the Palm Gardens complex used walkers or walking sticks. That aspect is a matter of concern, given that the appellant’s system assumes that elderly residents acting as wardens will be the ones assisting residents who whilst ambulatory, are likely to have difficulty in making a rapid exit from the premises.
Fire Sprinkler Systems
It is common ground that the installation of a fire sprinkler system is the ideal fire safety precaution. The installation of such a system would mean that the existing staff level, namely one passive overnight staff member, could be maintained.
Mr Ryan described fire sprinkler installations as a very effective means of detecting and suppressing a fire. A particular benefit is that if such a system was installed the people engaged in the emergency response would be unlikely to encounter a large fire.
Mr Wellman’s evidence was that sprinkler systems provide a number of advantages including containment or extinguishment of the fire. It is the stance of the fire service, and the building fire safety committees, that if a sprinkler system is installed one passive staff member on site is sufficient.
Economic Viability
Bellara
Bellara is funded by residents who are charged 85% of their pension payments. Bellara has managed only to break even over the two years preceding the hearing.
The licence condition would require the hiring of a person working from 9pm until 7am. At present physiotherapy and medical students in their 5^th and 6^th year of studies are engaged as overnight staff. At night they check the residents, and patrol the premises making sure the premises are locked, and are then free to study or sleep. They have a pager and are on call during the night. They are trained to respond to a fire alarm.
The cost of hiring a person on active overnight duty was alleged in evidence to be $154,000 per year. Ms Elliot, the manager of Bellara, said her best guess as to the cost of one person on passive overnight duty is $100,000 per year. We invited production of the wage records for the current staff member engaged on that basis. Those records were not produced. An analysis of the basis of Ms Elliot’s calculations demonstrated that her estimate is in fact considerably higher than the actual cost.
Palm Gardens

There was no evidence as to the issue of the profitability of the facility. Rather the evidence was that consideration was being given to a redevelopment of the facility. Palm Gardens pays its overnight staff on a fixed rate per night for passive duty. The total annual cost was of the order of $20,000 per year. The cost of providing an additional staff member on active duty, including wages and on-costs, would be in the vicinity of $80,000 per year.
We accept both that the cost of an active staff member on overnight duty will be considerably greater than on passive overnight duty, and that the provision of a staff member on active duty will impose a considerable financial burden on each appellant.
The EHA Decision to Impose the Condition
Part of the evidence taken into account by the Eastern Health Authority was the concern raised by Mr Clive Fisher, the Acting Senior Fire Safety Officer with the Fire Safety Department. He wrote to the EHA through Mr Harmer saying:
Over recent years the SAMFS has responded to a number of fires, usually occurring at night, within this type of premises. The attending of fire officers has raised concerned about the lack of an effective emergency procedure and the difficulty experienced by the single staff member to evacuate the residents resulting in many of them remaining in their rooms until the fire service had arrived. ...
Given the situation of a serious fire occurring within an SRF that in particular has a building classification of a Class 9a then the single staff member is responsible for initially evacuating all residents from within the fire/smoke compartment concerned, followed by total evacuation of the building.
As all residents within these facilities normally have some form or physical, medicinal, aging or mental impairment, then implementation of an emergency evacuation becomes extremely difficult particularly at night for a single staff member. This not only puts the lives of the residents at risk but also that of the staff member and the attending firefighters who will need to carry out search and rescue operations under hazardous conditions.
The policy that has been currently adopted by the SAMFS is to ensure that where the facility meets the requirements for a Class 9a building then a minimum staffing level of at least 2 staff on duty at all times with at least one staff member to be alert has been implemented. An option to reduce staff levels to a sleeping staff member has been supported by the SAMFS where a residential sprinkler system has been installed in this class of building.
Where the building has met the higher fire safety requirements for a Class 3 building then we have continued to support a single staff member on duty.
Mr Wellman who gave evidence in the respondent’s case, is the fire service representative on the Campbelltown Council Building Fire Safety Committee. He has 31 years service with the South Australian Metropolitan Fire Service including as a fire fighter, senior fire fighter, and station officer, the latter for 19 years. During the past five years he has been in the community safety department. He conducts building fire safety surveys, and assessments of new buildings including offices, factories, warehouses and accommodation buildings. He also conducts evacuation observations and is a member of ten building fire safety committees.
In our view the concerns expressed by Mr Wellman in relation to the proposal to use the emergency system recommended by First 5 Minutes, which are relevant to our consideration include the following:
He expressed the view that in an emergency situation people of the age of 65-70 years and over would “probably struggle to cope with an emergency situation because of the physical and mental stress that is placed upon a person required to aid the evacuation of others in an emergency situation”. We note that the Australian Standard suggests that those appointed as fire wardens be assessed in relation to physical capabilities, leadership abilities, maturity, decision-making skills, and capabilities under pressure.
Mr Wellman expressed the view, based on anecdotal evidence and experience within the community safety department, that older people require more assistance in an emergency situation than a younger person. That view could hardly be regarded as controversial.
Mr Wellman equated, at least to some extent, a fire fighter working on night shift who is sleeping lightly, with a staff member on passive duty, perhaps sleeping, but on call. He distinguished those situations from a resident who is likely to sleep normally, and therefore needs to be awoken from a deeper sleep and in turn takes longer to respond.
He did say, “I still think that an active member is still a lot clearer in their thinking. ... In a fire situation you have a person with a clear head who can respond, look at instructions on a fire indicator panel which can sometimes be difficult to read and not always the same and then respond appropriately. Whereas somebody waking up, it may take them quite a bit of time to decipher what that information is.” He agreed however that fire services officers orientate quickly when they are woken at night.
Mr Ryan expressed the view that wardens could operate effectively when woken from sleep by the alarm system. It follows in our view that a staff member on call, although sleeping, will react more quickly than a sleeping resident who will rarely if ever receive an alarm call.
The respondent called Mr Harmer. He is a chartered professional engineer with a bachelor of engineering degree and works as a consultant building surveyor to a significant number of councils. He is a member of a significant number of building fire safety committees.
He described Bellara, in terms of the fabric of the building, as having the fire safety provisions of a high standard.
He said that the building safety committee needed to make an assessment as to whether there were adequate staff numbers to carry out the evacuation of residents in an emergency. In considering the available material the committee formed the view that one staff member was not sufficient to evacuate the compartments in each building quickly enough and accordingly determined that two staff should be provided. He gave evidence that it is the professional opinion of the committees collectively that two staff members is a minimum requirement. In arriving at that position, specific assistance was sought from the South Australian Fire Service.
He said that the Committee gave consideration to the proposal put forward by First 5 Minutes as an alternative to the licence condition.
Mr Harmer expressed concerns regarding the concept of using resident wardens, and highlighted a number of inherent differences between using staff and resident wardens, including the difficulty of ensuring that any of the resident wardens are in the facility at any time; the lack of a formal roster; concerns regarding the fitness of resident wardens to carry out the tasks required; and the lack of restrictions on, for example, resident wardens consuming alcohol.
Those concerns formed part of the basis of his recommendation to the EHA to maintain the imposition of the condition currently under appeal.
Conclusions
The emergency response procedures and the additional training drills required put into place by the appellants are undoubtedly useful in that they heighten the awareness of residents generally.
We accept that the resident wardens were well motivated people who took their role as fire wardens seriously. We do not intend any criticism at all of the volunteer fire wardens and they are to be commended for their contribution. However the issue as to the appropriateness of residents constituting the main body of the emergency control system, with the assistance of one staff member on passive overnight duty, is one which requires careful consideration.
In our view it is necessary for the role of each fire warden to be established so that people know exactly what they are to do in the event of an emergency. The system proposed by the appellants which appoints a number of wardens, and purports to require at least three wardens to be available each night, without at least at this stage a formal system of reporting, is in our view not sufficiently certain. A number of deficiencies were identified during the course of evidence, as to the effectiveness, in test conditions, of the Emergency Response Procedure in place at the respective premises. We accept that those particular shortcomings may well be capable of being remedied.
Of further concern however is the fundamental proposition of having residents of the facilities, essentially aged in their 70’s and above, albeit on the understanding that it is proposed that fitter and more capable residents be selected as wardens, attending from outside the premises, and going into the building where the fire is located, at night.
We share the concerns expressed by Mr Wellman and Mr Harmer in relation to the efficacy of that proposal.
As counsel for the respondent put it, the combination of elderly people moving from a position of safety in their own units, into potential danger in the building in which the emergency has occurred, and then being required to assist elderly and less capable people, appears fraught with uncertainty and risk.
The provision of two staff members, with designated roles; one to attend at the fire indicator panel and provide liaison with the fire emergency services, and the other to attend to the evacuation, is the preferable course.
It is important that the staff engaged by each facility be themselves physically and mentally capable of reacting in an emergency situation, be properly trained and be able to fulfil all aspects of their duties in the event of fire, and for the emergency evacuation procedure to be well understood by residents and staff.
Orders in Relation to Bellara
Counsel for the appellant submitted that Bellara would continue to have an Emergency Control Organisation regardless of whether an additional staff member was required. In commenting earlier that the instruction and training which heightened the knowledge and awareness of the evacuation system constitutes a positive, we are not to be taken as supporting the concept of residents in their 70’s attending as wardens upon receipt of a fire alarm.
It is the stated intention of Bellara to install a fire sprinkler system. The timetable for the installation of that fire sprinkler system is to be arranged in conjunction with the EHA, subject to the requirement that the installation be completed within two years.
We are of the view that there are not cogent reasons to depart from the decision of the EHA except to the following limited extent: having regard to the evidence including evidence as to cost, and taking into account the geographical layout of the buildings and the safety precautions and fire safety systems already installed by Bellara, we are of the view that whilst there will be a condition that there be two persons on duty, it is sufficient if both of those persons are on passive overnight duty rather than active duty.
Once the sprinkler system is installed, consistent with the evidence of Mr Wellman and Mr Harmer, the staff requirement will be one staff member on passive overnight duty.
Orders in Relation to Palm Gardens
Counsel for the appellant again submitted that Palm Gardens would continue to have an Emergency Control Organisation regardless of the outcome of this appeal. We make the same observations as made in relation to Bellara.
Again we do not consider that there are cogent reasons to depart from the decision of the EHA except to the following limited extent: for the same reasons as expressed in relation to Bellara and further taking into account the lesser number of residents accommodated in the facility all of whom are located at ground floor level, whilst the condition requiring two persons will be maintained, both staff members may be engaged on passive overnight duty.
Although there is no current proposal for the installation of a sprinkler system we require that a fire sprinkler system be installed, again with the timetable for the installation to be arranged in conjunction with the EHA, subject to the requirement that the installation be completed within two years. Once installed the staff requirement will be one staff member on passive overnight duty.
We will hear counsel as to the precise terms of the orders and as to any ancillary matters.