Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner

[2023] AATA 2901

Caring Home Care Pty Ltd and Aged Care Quality and Safety Commissioner [2023] AATA 2901 (12 September 2023)

Division:GENERAL DIVISION

File Number(s):      2022/6052

Re:Caring Home Care Pty Ltd

APPLICANT

AndAged Care Quality and Safety Commissioner

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:12 September 2023

Place:Sydney

The decision under review is affirmed.

.............................[SGD]...........................................

Senior Member A Poljak

CATCHWORDS

HEALTH AND AGED CARE – refusal of application for approval as an approved provider of aged care – whether the Applicant has experience in providing aged care or other relevant forms of care – whether the Applicant demonstrated understanding of its responsibilities as a provider of home care – whether the Applicant has systems in place to meet its responsibilities as a provider of home care – whether the Applicant has sound financial management – decision under review affirmed.

LEGISLATION

AGED CARE QUALITY AND SAFETY COMMISSION ACT 2018 (CTH)

Aged Care Act 1997 (Cth)

CASES

SECONDARY MATERIALS

Quality-of-Care Principles 2014

REASONS FOR DECISION

Senior Member A Poljak

12 September 2023

INTRODUCTION

1. Caring Home Care Pty Ltd, the applicant, applied under section 63B of the Aged Care Quality and Safety Commission Act 2018 (Cth) (the Commission Act) to become an approved provider of aged care on 13 August 2021 (the Application). On 25 March 2022, a delegate of the Aged Care Quality and Safety Commissioner (the respondent) decided not to approve the applicant’s application to become an approved provider of aged care (the original decision).

2. The applicant requested a reconsideration of the original decision and provided further documents and responses to the delegate’s findings on 11 April 2022. On 6 July 2022, a separate delegate of the respondent affirmed the original decision. This is the decision under review in these proceedings.

   RELEVANT LEGISLATIVE PROVISIONS

3. The standard of suitability that a person must meet to be permitted to provide aged care that is funded by the Commonwealth is a stringent one. The Commission Act outlines the criteria for approval of applicants as providers of aged care and establishes a regulatory framework, the objects of which are entirely consumer-protective, including to protect and enhance the safety, health, well‑being and quality of life of aged care consumers and promote aged care consumers’ confidence and trust in the provision of aged care services and Commonwealth‑funded aged care services (section 5).

4. Applications for approval must demonstrate that applicants satisfy the evaluative criterion of suitability. The task of assessing whether an applicant is suitable is framed by the requirements of the Aged Care Act 1997 (Cth).

5. Section 63D of the Commission Act sets out the minimum requirements for approval to provide aged care. Subsection 63D(2) of the Act provides as follows:

   Approval as provider of aged care

   (2) The Commissioner must not approve the person as a provider of aged care unless the Commissioner is satisfied that:

   (a) the person is a corporation; and

   (b) the person is suitable to provide aged care; and

   (c) none of the key personnel of the person is a disqualified individual.

6. The Tribunal notes that the applicant’s application was made prior to 1 December 2022. Therefore, the amendments made to the Commission Act under the Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2002 (Cth) which amended section 63D do not apply in this case.

7. The parties agree that the sole issue for determination is in relation to the applicant’s suitability to provide aged care within the meaning of s 63D(2)(b). In deciding whether the applicant is suitable to provide aged care, the Tribunal must have regard to subsection 63D(3) of the Commission Act which provides:

   Suitability to provide aged care

   (3)      In deciding whether the person is suitable to provide aged care, the Commissioner must consider the following matters:

   (a) the person’s experience in providing, at any time, aged care or other relevant forms of care;

   (b) the person’s demonstrated understanding of the person’s responsibilities as a provider of the type of aged care for which approval is sought;

   (c) the systems that the person has, or proposes to have, in place to meet the person’s responsibilities as a provider of the type of aged care for which approval is sought;

   (d) the person’s record of financial management and the methods that the person uses, or proposes to use, in order to ensure sound financial management;

   (e) if, at any time, the person has been a provider of aged care or other relevant forms of care – the person’s conduct as such a provider and the person’s compliance with:

   (i) the person’s responsibilities as a provider of that care; and

   (ii) the person’s obligations arising from the receipt of any payments from the Commonwealth for providing that care;

   (f) any other matters specified in the rules.

8. The criteria under subsection 63D(3) are non-exhaustive, however they are in the nature of mandatory relevant considerations that the Tribunal must take into account in deciding whether the applicant is suitable for the purposes of paragraph 63D(2)(b): subsection 63D(5).

9. Subsection 63D(4) permits decision-makers to have regard to the matters contained in subsection 63D(3) in relation to any or all of an applicant’s key personnel.

   ISSUES

10. The sole issue for determination is whether the applicant is suitable to provide home care. In this case, determination of that issue will require the consideration of the matters in section 63D(3)(a), (b), (c) and (d) of the Commission Act, being the presently relevant paragraphs in that section, in addition to any other matters the Tribunal may think it relevant to consider.

    CONSIDERATION

    Experience in providing aged care, or other relevant forms of care (paragraph 63D(3)(a))

11. The applicant is a relatively new company that appears to have been established for the sole purpose of providing Commonwealth-funded home care. It has no experience in providing aged care or any other form of care in its own right.

12. However, in addition to assessing the experience of the applicant itself, subsection 63D(4) of the Commission Act permits consideration of the relevant experience of any or all of the key personnel of the applicant. Those key personnel are:

    (a)Mr Azam Mohammed (Chief Executive Officer (CEO) and Chief Financial Officer (CFO)).

    (b)Ms Mubbashra Nazlee Mahmud (Director of Nursing (DON));

    (c)Miss Rayyan Azam (Manager Allied Health and Coordination (AHC Manager)); and

    (d)Mrs Sarah Azam (Manager of Operations)

13. The principal duties and functions of the relevant positions are detailed in the Application and are contained in position descriptions.

14. Mr Azam Mohammed intends to fill the position as CEO and CFO. He holds a Masters in International Relations (1980) and a Bachelor of Commerce (1975) from the University of Karachi. He has over 30 years’ experience in government service such as previously holding the position of Consul General and Trade Minister for Pakistan in Sydney between 2006 and 2012. Mr Mohammed is presently a consultant to aged care and NDIS providers (since 2017) and a director of Sazem Trading (since 2014). He has also recently completed the COVID-19 Vaccination Training Course; COVID-19 courses with the Department of Health in Personal Safety Training, Infection Control Training and Family and visitors Part 2 In Home Care.

15. The applicant relies on Mr Mohammed’s roles as CFO of Inspired Aged Care from August 2017 to February 2019, and CEO of Sazem Disability & Aged Care Services Sydney from May 2017 to June 2018. However, during the relevant periods Inspired Aged Care appears to have provided care to only one consumer, and Sazem did not provide any care at all. Mr Mohammed’s experience in occupying leadership roles in companies that provided little to no actual care and support carries very little weight.

16. Mr Mohammed lacks relevant accounting and financial qualifications. However, I note that in written submissions, Mr Mohammed explains that the usual book-keeping relating to the company and record for ATO etc will be done by hired external professional accountants and tax agents.

17. Ms Mubbashra Nazlee Mahmud is a Registered Nurse who has been engaged in full time and part time nursing roles since 1996. While that experience may qualify her to fill a nursing role from a clinical perspective, I am not convinced on the available material that she has the relevant experience in senior nursing roles that would enable her to fulfil the managerial responsibilities of the DON role. The applicant relies on her time with Inspired Aged Care between 2017 and 2019, in which she is said to have coordinated care for up to 12 consumers. Other than what is contained in a letter from Nadeem Sheikh, CEO of Inspired Aged Care dated 23 July 2018, and the limited information contained in Ms Mahmud’s curriculum vitae (CV), there is no evidence available to clarify the work actually undertaken by Ms Mahmud during her nursing career or with Inspired Aged Care such as to determine whether that experience is transferrable to her proposed role with the applicant. Unfortunately, Ms Mahmud was not available at hearing to provide evidence or to address these concerns.  

18. It is proposed that Mrs Sarah Azam, will fill the role of AHC Manager. Mrs Azam holds a Bachelor of Science in Home Economics (1985) from the University of Karachi, majoring in Childcare and Nursery School, Food and Nutrition with a minor in home-management and biochemistry. She has also completed a Department of Health Covid-19 Vaccination Training Programme in 3 modules. Her CV provides that she has held various roles over the years and is summarised as follows:

    Mainly worked in 3 areas: (a) Caring for aged persons in various capacities, from coordinator to actual delivery of personal care services and as consultant to aged care service providers for development of Policy and Procedures in accordance with the regulatory framework governing the aged care – Home Care- sector, (b) child care and (c) trading as marketing manager.

19. The most relevant work history recorded in Mrs Azam’s CV is that as accountant and casual worker with Inspired Aged Care during 2017-2018. It is entirely unclear how she was qualified to serve as an accountant for an approved aged care provider. In any event, a letter dated 17 July 2018, from Nadeem Sheikh, CEO of Inspired, sets out her major areas of contribution as follows:

    1.    She assisted us in development of our Care and Clinical Manuals and risk mitigation for client guidelines;

    2.    She introduced effective management and Policy Procedure Manual for Inspired based on her experience in age care services for aged persons of her community and managing a trading and consultancy firm;

    3.    She assisted with coordination and in delivery of meals, meal preparation in client’s home and cleaning of client’s home.

20. It is unclear from Mrs Azam’s CV, what work experience is referred to in the letter from Nadeem Sheikh. The reference made to experience in aged care and managing and trading a consultancy firm does not directly correspond to the listed work experience. There is also no evidence of the work undertaken in these roles or what qualified her for these positions. Mrs Azam did not appear at hearing to provide evidence or to address these concerns.

21. Miss Rayyan Azam, Mr Mohammed daughter, was awarded a Bachelor of Occupational Therapy in April 2020 and has been registered as an occupational therapist since December 2019. Rayyan appeared at hearing to give evidence. She confirmed that she had around three years of post-qualification experience working as an occupational therapist with an approved National Disability Insurance Scheme (NDIS) provider, including experience delivering care and support to NDIS elderly participants. Despite Rayyan’s enthusiasm and promising professional future, there is no evidence that Rayyan has at this stage, relevant managerial or support coordination experience that would enable her to effectively fulfil the requirements of her proposed role as Manager of Operations.

22. At hearing, a serious issue arose which goes to the credibility and reliability of the applicant.  In evidence is a roster provided by the applicant during the month of September 2019, of care claimed to have been provided on a private fee-paying basis to individuals. There are two entries of a service provided by ‘OT Rayyan’ in circumstances where Ryann, confirmed that, as of that date, she was unregistered. As she did not have registration as an OT, it would have been unlawful for her to provide these services.  

23. There are only two possibilities in relation to this; one of them is that the roster was doctored retrospectively to indicate that OT services were provided when, in fact, they were not.  And the second possibility, which Rayyan rejected at hearing, was that she provided OT services when unregistered.  When I asked Mr Mohammed about this roster, he denied any involvement in it and Rayyan denied having ever seen or been involved in populating it or using it.  I don’t have enough evidence to make a finding about this issue other than to say it raises concerns about the applicant’s candour and reliability.

    Demonstrated understanding of the responsibilities as a provider of the type of aged care for which approval is sought (paragraph 63D(3)(b)) and Systems in place to meet the responsibilities as a provider of the type of aged care for which approval is sought (paragraph 63D(3)(c))

24. The applicant has made lengthy submissions to convey its understanding of the responsibilities of a provider of aged care and its proposed systems to meet those responsibilities. This has been done through material filed in these proceeding including the applicant’s Statement of Facts, Issues and Contentions, the application for approval, version two of the Policy and Procedure Updated Manual (Manual) and by way of oral submissions at hearing.

25. Looking specifically at the Manual, it is plain that the applicant has attempted to illustrate its understanding of the responsibilities of a provider of aged care by addressing in detail each of the Aged Care Quality Standards (Standards), which are set out in Schedule 2 to the Quality-of-Care Principles 2014 (Quality of Care Principles). It provides that the manual guides on how to meet the current Quality Standards in force and on adopting the process in everyday practice and interaction with consumers. It describes the “what, when and how to” approach in everyday practice. It attempts to outline practices and policies care staff are required to follow.

26. There are a number of concerns evident from reviewing the Manual. It is convoluted and difficult to navigate, and because of this, it is difficult to understand how the Manual and referenced policies and procedures would work in practice. It is also apparent from the Manual that the applicant fails to grasp key concepts relevant to the responsibilities of a provider of aged care. A number of examples of these deficiencies are summarised below, noting that this is a non-exhaustive list of examples. 

27. Section 54-1(1)(b) requires an approved provider to maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met. The applicant’s human resources policy purports to articulate how it will maintain a pool of adequate number of appropriately skilled staff in a planned manner and have systems to continually improve the collective skill sets of its Care and Support workers by a range of strategies including its governance, management, supporting the staffs with growth opportunities, incentives, awards, retention strategies and improving their performance. The Policy Statement makes little sense and includes broad nonsensical statements, for example:

    It will have a fair initial capture strategy at recruitment level and a staff retention and development strategy based on incentives linked to performance and their continued development. Caring Home Care HR policy based on a planned, structured and transparent procedures to attract and retain competent workforce.. Leadership qualities would [be] developed in them at all tiers and workfoce would be engaged with and involved in decision making to give them ownership of decisions and processes decided.

28. As for Procedure, the Manual provides, inter alia, [the applicant] will have a planned and documented system for recruitment, training, promoting, listening to staffs inputs, performance evaluation and incentives. Workforce interactions with consumers must be kind, caring and respectful of each consumer’s identity, culture and diversity. At least two staffs will be designated for each consumer’s package activities, one active staff as preferred by consumer and one as a shadow staff to replace the active staff wherever needed. Shadow staff must also be introduced to consumer at appropriate time. The Manual says nothing about what it considers to be an “appropriate staffing level” for a given number of consumers, and also says nothing about how it will maintain that level.  

29. In written submissions the applicant attempts to explain the procedure for staffing and states that the planning for maintaining adequate number of staff is a dynamic process and not just dependent on number of consumers and that it will be smoothly planned in real situation, supposedly, in response to the number of consumers at any given time, the individual needs and any external factors. None of this detail is provided in the Manual nor does it adequately provide a response to the failings identified.

30. Looking at Workforce requirements, the Manual details the proposed recruitment process. It also provides statements such as, A staffs hired or cleared to work for Caring Home Care (including for volunteers and subcontracted workers) must be given sufficient time to read our policies and procedure manual. Staff handbook and induction manual. They must seek clarification and ask questions to the interviewing panel. They must confirm that these documents and policies have been read and understood by them. They may confirm same for Care Plan for consumers to whom they would be rostered. It is unclear what this statement means or what the utility may be in practice.

31. As for ensuring staff are appropriately skilled, the Manual contains guidance reflecting the training the applicant claims that it will ensure that staff receive, and it states that staff will have easy access to all training materials on the intranet. A Table is provided and lists “training topics”. However, there is no detail whatsoever as to the actual content of the training that staff will be required to complete, or any detail as to who will provide the training and how participation will be assessed before staff are permitted to provide services to consumers.

32. Standard 1(3) requires providers to support consumers to exercise choice and independence in relation to the way care and services are delivered, and to take risks to enable them to live the best life they can. The applicant appears to fundamentally misunderstand the concept of Dignity of Risk. It is a concept that puts the consumer at the centre of their care and affirms their right to make decisions about their care and encompasses risks that only arise specifically in the course of the provision of care by the provider. The applicant, however, appears to understand that this concept requires consumers to be empowered to take all risks at all times. This misunderstanding is evident from the wording of Policy 1.1 of the Manual, specifically, the requirement for staff to request that consumers sign the ‘Consumer Risk Indemnity Consent Form’, which purports to indemnify the applicant in all respects, including in the event of the consumers death caused by undertaking the “risky” activity. The following example used in the Manual also highlights this misunderstanding:

    Attempt must be made to find via-media and balance dignity of risk by exploring safer options. For example. If consumer insists on skiing, safety measures must include wearing knee pads, arm pads and helmets etc.

1. In written submissions, the applicant explains, if the RN’s assessment confirms that the risk posed is unacceptable, such activities shall not be undertaken and consumers will not be supported in such activities. The policy specifies it very clearly. It also explains where there is a different of opinion between consumers and applicant regarding levels of risks, then the decision by Applicants’ RN and/or OT shall prevail… it would be clear to any reasonable reader and all the care and support workers that [the applicant] encourages its workers to support consumers in taking only reasonable risks and to collaboratively identify, address and mitigate risks to the consumer and balance dignity of care and duty of care. It is always abundantly clear to all including the staff that there is no question of supporting consumers for unacceptable levels of risks, even if the consumers get upset and leave [the applicant]…Thus it is abundantly clear that [the applicant] will under no circumstances support or assist consumers in any activities it deems too risky…

2. Under Dignity of Risk in the Manual, the applicant uses the phrase wants to do something that must be reasonable risky. At hearing Mr Mohammed was questioned about what was meant by “reasonably risky”. He stated, it is not that must be reasonably risky, it has been corrected to that maybe reasonable risky, I have explained many times to you.  And so far, this manual has not been given to any staff workers, when they get it, it will say maybe reasonably risky, he proceeds to explain that the aged care standards do not define what is a reasonable risk. He states that the applicant has identified and defined reasonable risk for themselves, and the registered nurse will undertake a risk assessment of that risk. Examples of risk identified by Mr Mohammed included risks with meal planning such as choking hazards. This evidence does not alleviate concerns about the applicant’s understanding of Dignity of Risk nor what is meant by “reasonably risky”.

3. Standard 2(3) requires the safe and effective delivery of care and services to be informed by assessment and planning, and to be reviewed regularly for effectiveness. Policy 2.1 of the Manual appears to attempt to meet this standard. It sets out some broad and confusing statements about the intended assessment processes and states, While the assessment identifies current needs and goals, during ongoing monitoring and assessment attention must be given to regular reviews and evaluation of interventions to determine effectiveness in delivering expected outcomes and in meeting goals and to timely recognise and respond to changes in circumstances or deterioration in consumer’s condition or adverse episodes etc. There is no explanation about how consumers will be assessed as having a decision-making or cognitive impairment and it is entirely unclear what the “effective monitoring and ongoing assessment system” entails and when consumers reviews are required.

4. Standard 3(3)(f) requires that the approved provider ensure there are timely and appropriate referrals to individuals, other organisations and providers of other care and services. Policy 3.3 of the Manual again provides broad, nonsensical overarching statements with little substance. Such as, It is Caring Home [Care] policy to refer only to appropriacy qualified individuals and service providers over whose process Caring Home Care will have oversight as per agreement drawn with them to ensure the same level of safety and quality and respect for consumer rights as consumers experience in Caring Home Care. It is entirely unclear from the manual how the applicant proposes to ensure that referrals are both timely and appropriate.

5. In written submissions, the applicant attempts to address criticisms made on this issue and states that not only will initial assessment be done but ongoing assessment shall be maintained and the OT (manager allied health) shall be overseeing and overviewing the conditions and outcomes of the consumer. The applicant further provides, inter alia, that the source for timely referral are the consumers themselves who will inform of their conditions and symptoms, enabling the RN and OT to identify to whom to make referrals. The other source is the consumer’s medical practitioner who would recommend referrals. The third source would be the RN and OT who would be monitoring and overviewing the conditions of the consumer…The RN and OT are qualified and experienced and skilled enough to know what is appropriate referral. For a consumer needing intervention from say, a Dietician, they shall appropriately refer to a Dietitian and not a beauty parlour!

6. Standards 1(3) and 8(3) require providers to keep consumers’ personal information confidential and to have effective information management systems in place. The Manual does not adequately demonstrate how sensitive consumer information will be protected via a robust system as it will need to be protected in instances where the information needs to be communicated to members of its workforce, including clinical care staff and external health care providers.

7. Mrs Azam, and Ms Mahmud, two of the applicant’s key personnel who are given very serious obligations around aspects of care, were not available for cross examination. For these reasons, I am not convinced that the applicant has demonstrated that its systems or proposed systems will enable it to meet the responsibilities of an approved provider. The concept of demonstrated understanding is about substantive understanding, not just through words, but through its words, conduct, processes, and documentation as well as any relevant past experience. These factors are necessary to demonstrate that a care provider truly understands the nature, seriousness and significance of the responsibilities that are placed upon it, including some very serious responsibilities around preventing harm and enhancing well-being and meeting best practice in the provision of aged care. I am not satisfied that the applicant meets that requirement and is unlikely to possess an adequate understanding of those responsibilities.

   Record of financial management and the methods used, or proposes to use, in order to ensure sound financial management (paragraph 63D(3)(d))

8. The applicant is a relatively new company with a very limited record of financial management on which it can rely.

9. The applicant has provided a copy of a loan agreement dated 31 March 2021 (loan agreement), with Mrs Azam and Mr Mohammed in their personal capacities. The loan agreement provides that Mrs Azam agrees to loan the applicant an initial sum of $120,000, interest free, within one week of approval. Mr Mohammed provides his consent to funds in a joint account with Mrs Azam being used to fulfil this undertaking. It is unclear from the loan agreement what are the required repayments, if any interest is to be included, and the term of the loan.  

10. Financial records provided show that the required funds under the loan agreement are currently available in the joint account of Mrs Azam and Mr Mohammed. At hearing, Mr Mohammed explained that once the applicant becomes an approved provider of aged care, the funds will be transferred to the applicant as per the loan agreement.

11. The applicant has its own business transaction account, which has been used infrequently during the period 2019 to 2021. I note that many services rendered during this period were paid for in cash. The applicant maintains that it will use business accounting software such as electronic home care package (EHCP) or Xero to manage its business accounting and to maintain transparent and accountable financial management and accounting systems that are compliant to Australian Accounting Standard and funding agencies requirements.  There is very limited evidence of past experience with a working financial management system and its management.

12. Given the very limited evidence of experience, and the proposed financial management systems, I am not convinced of the applicant’s ability to manage the funds of an aged care provider and its clients in compliance with the regulatory requirements.

    DECISION

13. I am not satisfied on the available evidence that the applicant currently meets the high threshold of suitability to provide aged care, as required by paragraph 63D(2)(b) of the Commission Act, when regard is had to the relevant matters in subsection 63D(3) addressed above.

14. The decision under review is affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.............................[SGD]...........................................

Associate

Dated: 12 September 2023

Date of hearing:	6 June 2023
Representative for the Applicant:	Mr Azam Mohammed
Solicitor for the Respondent:	Mr K Eskerie, Sparke Helmore