Clanwilliam Pty Ltd and Aged Care Standards and Accreditation Agency Ltd
[2008] AATA 47
•16 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 47
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 20072155
GENERAL ADMINISTRATIVE DIVISION ) Re CLANWILLIAM PTY LTD Applicant
And
AGED CARE STANDARDS AND ACCREDITATION AGENCY LTD
Respondent
DECISION
Tribunal
Deputy President P E Hack SC
Mr R G Kenny, Member
Date 16 January 2008
Place Brisbane
Decision
The Tribunal sets aside the decision under review.
..............................................
Deputy President
CATCHWORDS
HEALTH AND AGED CARE – Accreditation Grant Principles – variation of period of accreditation to shorten accreditation period – whether applicant failed to comply with expected outcomes – continuous improvement (management) – comments and complaints – continuous improvement (health) – clinical care – privacy and dignity – continuous improvement (environment and safety) – applicant had deficiencies but did not amount to non-compliance with expected outcomes – decision under review set aside
Aged Care Act 1997 (Cth.) – ss 42-1, 42-4, 54-1(1)(a), 54-1(1)(d), 54-2, 96-1
Accreditation Grant Principles 1999 (Cth.) – Parts 3 (division 3), 5.4, 7, ss 1.3, 3.18, 3.20, 3.21, 3.23(1)(a), 3.23(3)(a), 3.24(2), 3.24(4)Quality of Care Principles 1997 – ss 18.8(2), 18.8(3) 18.9(1)
Aged Care Standards and Accreditation Agency Ltd. v Kenna Investments Pty Ltd (2004) 138 FCR 428
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634REASONS FOR DECISION
16 January 2008
Deputy President P E Hack SC
Mr RG Kenny, Member
Introduction
1.The applicant, Clanwilliam Pty Ltd, is the proprietor of the Beenleigh Nursing Home (the Home). On 18 September 2006, the Home was approved as an accredited provider of residential aged care by the respondent, the Aged Care Standards and Accreditation Agency Ltd (the Agency), for the period from 4 December 2006 until 4 December 2009. The accreditation procedures were completed by the Agency in accordance with the terms of the Aged Care Act 1997 (Cth.) (the Act) and the Accreditation Grant Principles 1999 (Cth.)
2.A team of assessors from the Agency undertook a review audit of the Home on 21, 22 and 23 February 2007. On 16 March 2007 the Agency decided to vary the period of accreditation of the Home so that it would expire on 4 March 2008 rather than on 4 December 2009. That decision was a “reviewable decision” as that expression is defined in Part 7 of the Accreditation Grant Principles. Although it was not permitted to do so under the Act or the Accreditation Grant Principles, the Agency purported to undertake a re-consideration of its decision on 27 April 2007 but declined to vary the decision.
3.Clanwilliam seeks a review by this Tribunal of the decision made by the Agency on 16 March 2007.
Legislative Framework
4.The Act provides a mechanism whereby the Commonwealth controls the provision of residential aged care services by the provision of subsidies and grants. By virtue of s 42-1 of the Act, an approved provider[1] is eligible for residential care subsidy where, relevantly, the residential care service through which the care is provided meets its accreditation requirement. That requirement is met where there is an accreditation by an accreditation body or a determination by the Secretary[2]. The Agency is the body corporate paid an accreditation grant under the accreditation grant agreement for the purposes of accreditation of residential care services in accordance with the Accreditation Grant Principles[3]. Its functions include:
(a)managing the accreditation process using the Accreditation Standards;
(b)promoting high quality care, and helping industry to improve service quality, by identifying best practices and providing information, education and training to industry;
(c)assessing, and strategically managing, services working towards accreditation;
(d)liaising with the Department of Health and Aged Care about services that do not comply with the standards applicable to them (the Residential Care Standards or the Accreditation Standards, as appropriate).
[1] It is accepted that Clanwilliam is an approved provider as that term is used in the Act.
[2] See s 42-4 of the Act.
[3] See Part 5.4 of the Act;
5.Approved providers have responsibilities relating to the quality of care that they provide, the rights of users of the services and accountability for the provided and the basic suitability of key personnel. Those responsibilities are spelled out in detail in Chapter 4 of the Act. In the circumstances of the present case it is necessary to notice only two of those responsibilities, that under s 54-1(1)(a) and that under s 54-1(1)(d). The former obliges an approved provider to provide such care and services as are specified in the Quality of Care Principles 1997. The latter obliges an approved provider to comply with the Accreditation Standards made under s 54-2 of the Act.
6.The Accreditation Standards are set out in Schedule 2 to the Quality of Care Principles. The role of Accreditation Standards is described in s 18.9(1) of the Quality of Care Principles in these terms:
“(1)The Accreditation Standards are intended to provide a structured approach to the management of quality and represent clear statements of expected performance. They do not provide an instruction or recipe for satisfying expectations but, rather, opportunities to pursue quality in ways that best suit the characteristics of each individual residential care service and the needs of its residents. It is not expected that all residential care services should respond to a standard in the same way.
7.The Accreditation Standards deal with four “matters”: (a) management systems, staffing and organisational development; (b) health and personal care; (c) resident lifestyle; and (d) physical environment and safe systems[4]. The standard for a “matter” consists of the Principle for the matter and the expected outcome for each matter indicator for the matter[5]. In the present case it is as well to set out the Accreditation Standards in full. They provide:
[4] Quality of Care Principles s18.8(2).
[5] Quality of Care Principles s18.8(3).
Part 1 Management systems, staffing and organisational development
Principle: Within the philosophy and level of care offered in the residential care service, management systems are responsive to the needs of residents, their representatives, staff and stakeholders, and the changing environment in which the service operates.
Intention of standard:
This standard is intended to enhance the quality of performance under all accreditation standards, and should not be regarded as an end in itself. It provides opportunities for improvement in all aspects of service delivery and is pivotal to the achievement of overall quality.
Col. 1
Item
Column 2
Matter Indicator
Column 3
Expected Outcome
1.1 Continuous improvement The organisation actively pursues continuous improvement 1.2 Regulatory compliance The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards and guidelines 1.3 Education and staff development Management and staff have appropriate knowledge and skills to perform their roles effectively 1.4 Comments and complaints Each resident (or his or her representative) and other interested parties have access to internal and external complaints mechanisms 1.5 Planning and leadership The organisation has documented the residential care service’s vision, values, philosophy, objectives and commitment to quality throughout the service 1.6 Human resource management There are appropriately skilled and qualified staff sufficient to ensure that services are delivered in accordance with these standards and the residential care service’s philosophy and objectives 1.7 Inventory and equipment Stocks of appropriate goods and equipment for quality service delivery are available 1.8 Information systems Effective information management systems are in place 1.9 External services All externally sourced services are provided in a way that meets the residential care service’s needs and service quality goals Part 2 Health and personal care
Principle: Residents’ physical and mental health will be promoted and achieved at the optimum level in partnership between each resident (or his or her representative) and the health care team.
Col. 1
Item
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Matter Indicator
Column 3
Expected Outcome
2.1 Continuous improvement The organisation actively pursues continuous improvement 2.2 Regulatory compliance The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about health and personal care 2.3 Education and staff development Management and staff have appropriate knowledge and skills to perform their roles effectively 2.4 Clinical care Residents receive appropriate clinical care 2.5 Specialised nursing care needs Residents’ specialised nursing care needs are identified and met by appropriately qualified nursing staff 2.6 Other health and related services Residents are referred to appropriate health specialists in accordance with the resident’s needs and preferences 2.7 Medication management Residents’ medication is managed safely and correctly 2.8 Pain management All residents are as free as possible from pain 2.9 Palliative care The comfort and dignity of terminally ill residents is maintained 2.10 Nutrition and hydration Residents receive adequate nourishment and hydration 2.11 Skin care Residents’ skin integrity is consistent with their general health 2.12 Continence management Residents’ continence is managed effectively 2.13 Behavioural management The needs of residents with challenging behaviours are managed effectively 2.14 Mobility, dexterity and rehabilitation Optimum levels of mobility and dexterity are achieved for all residents 2.15 Oral and dental care Residents’ oral and dental health is maintained 2.16 Sensory loss Residents’ sensory losses are identified and managed effectively 2.17 Sleep Residents are able to achieve natural sleep patterns Part 3 Resident lifestyle
Principle: Residents retain their personal, civic, legal and consumer rights, and are assisted to achieve active control of their own lives within the residential care service and in the community.
Col. 1
Item
Column 2
Matter Indicator
Column 3
Expected Outcome
3.1 Continuous improvement The organisation actively pursues continuous improvement 3.2 Regulatory compliance The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about resident lifestyle 3.3 Education and staff development Management and staff have appropriate knowledge and skills to perform their roles effectively 3.4 Emotional support Each resident receives support in adjusting to life in the new environment and on an ongoing basis 3.5 Independence Residents are assisted to achieve maximum independence, maintain friendships and participate in the life of the community within and outside the residential care service 3.6 Privacy and dignity Each resident’s right to privacy, dignity and confidentiality is recognised and respected 3.7 Leisure interests and activities Residents are encouraged and supported to participate in a wide range of interests and activities of interest to them 3.8 Cultural and spiritual life Individual interests, customs, beliefs and cultural and ethnic backgrounds are valued and fostered 3.9 Choice and decision-making Each resident (or his or her representative) participates in decisions about the services the resident receives, and is enabled to exercise choice and control over his or her lifestyle while not infringing on the rights of other people 3.10 Resident security of tenure and responsibilities Residents have secure tenure within the residential care service, and understand their rights and responsibilities Part 4 Physical environment and safe systems
Principle: Residents live in a safe and comfortable environment that ensures the quality of life and welfare of residents, staff and visitors.
Col. 1
Item
Column 2
Matter Indicator
Column 3
Expected Outcome
4.1 Continuous improvement The organisation actively pursues continuous improvement 4.2 Regulatory compliance The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about physical environment and safe systems 4.3 Education and staff development Management and staff have appropriate knowledge and skills to perform their roles effectively 4.4 Living environment Management of the residential care service is actively working to provide a safe and comfortable environment consistent with residents’ care needs 4.5 Occupational health and safety Management is actively working to provide a safe working environment that meets regulatory requirements 4.6 Fire, security and other emergencies Management and staff are actively working to provide an environment and safe systems of work that minimise fire, security and emergency risks 4.7 Infection control An effective infection control program 4.8 Catering, cleaning and laundry services Hospitality services are provided in a way that enhances residents’ quality of life and the staff’s working environment
8.Once an approved provider has been accredited and has an allocation of places it answers the description of accredited provider in s 1.3 of the Accreditation Grant Principles. By virtue of s 3.18 of the Accreditation Grant Principles an accredited provider must ensure that the residential care service complies with the Accreditation Standards and other responsibilities under the Act and undertake a process of continuous improvement, measured against the Accreditation Standards. Division 3 of Part 3 of the Accreditation Grant Principles explains how the Agency monitors those requirements.
9.The Agency is required by s 3.20 of the Accreditation Grant Principles to carry out regular supervision of accredited residential care services through support contacts to ensure compliance with the Accreditation Standards and other responsibilities under the Act. The stated purpose of support contacts is to monitor compliance and assist the service to undertake its continuous improvement process. Where the Agency believes, on reasonable grounds, that there may not be compliance with the Accreditation Standards or other responsibilities under the Act, it may arrange for a review audit to be conducted[6]. The Accreditation Grant Principles sets out a detailed scheme for the undertaking of that review audit by an assessment team which is required to produce a review audit report. That report is then given to both the residential care service and the Agency. The audit report must contain a recommendation whether or not to revoke the accreditation of the residential care service[7] and, if the recommendation is to not revoke, a recommendation whether the period of accreditation should be varied[8].
[6] Accreditation Grant Principles s 3.21.
[7] Accreditation Grant Principles s 3.23(1)(a).
[8] Accreditation Grant Principles s 3.23(3)(a).
10.The Agency’s policy documents, which we discuss in greater detail below, require the assessment team to determine whether there has been compliance (or non-compliance) with the “Expected Outcome” [9], that is, whether an accredited provider is achieving the expected outcomes under the 44 items listed in the Accreditation Standards. We wonder whether it is entirely accurate to speak of compliance or non-compliance in this context. The obligation is to comply with the Accreditation Standards. Those standards will not be complied with if the accredited provider fails to meet the expected outcomes. In any event the difference is entirely semantic and has no bearing on the conclusions that we reach.
[9] The material tended to use the term “Expected outcome” somewhat inaccurately. Strictly speaking, the “Expected outcome” is the detail set out in Column 3 of Schedule 2 to the Quality of Care Principles. Ideally, what the Agency has described as e.g. Expected Outcome 2.12, Continence management ought to have been described as “Item 2.12, Continence management” for which the expected outcome is that residents’ continence is managed effectively. For consistency, we have adopted the same description as the parties.
11.The Agency, having received the review audit report, may decide to vary the period of accreditation, to revoke the accreditation or not to revoke the accreditation. Alternatively, it may make no change to the existing arrangements. In making its decision, the accreditation body must take into account[10]:
[10] Accreditation Grant Principles s 3.24(2).
“(a)the review audit report; and
(b)any information given to the accreditation body by persons receiving care, or who have received care, through the residential care service (or their representatives); and
(c)any information given to the accreditation body by the Secretary; and
(d)information (if any) received from the approved provider in response to the report of findings of the review audit mentioned in section 3.22.”
Where, as here, the Agency decides to vary the period of accreditation it must give the accredited provider written reasons for the decision[11].
[11] Accreditation Grant Principles s 3.24(4).
The Agency’s Dealings with the Home
12.The decision to accredit the Home for a period of three years from 4 December 2006 was made on 18 September 2006 following the conduct of a site audit on 17 and 18 August 2006. At that time the Agency’s assessors concluded that the Home complied with all of the 44 expected outcomes but that there were “deficiencies”; that is, failings that did not rise to the level of non-compliance. Following the accreditation decision, support contacts were undertaken on 30 November 2006, 21 December 2006, and 8 February 2007.
13.On the visit on 30 November 2006 (undertaken by Mr Steven McNamara and Ms Susan Turner) the Agency’s assessors concluded that the Home did not comply with Expected Outcome 2.12, Continence management and Expected Outcome 2.14, Mobility, dexterity and rehabilitation. There were, it was said, deficiencies in relation to the expected outcomes in other areas. In the following visit on 21 December 2006, it is said that the Home still had not complied with those expected outcomes.
14.On 8 February 2007, the assessors (Ms Gerri Simmons (now Donaldson) and Ms Clare Catchlove) concluded that Expected Outcome 2.12, Continence Management and Expected Outcome and Expected Outcome 2.14, Mobility, dexterity and rehabilitation were being complied with but that the Home failed to comply with Expected Outcome 2.7, Medication management. In the result, it was determined to undertake a review audit of the Home.
15.The review audit was undertaken by Ms Carolyn Trigg, Ms Cathy Williams and Ms Catchlove on 21, 22 and 23 February 2007. At the conclusion of the review audit, the assessors prepared a document[12] setting out the major conclusions. Clanwilliam was provided with a copy and responded to those conclusions. A revised version of the document[13] was prepared, to which Clanwilliam also responded. Ultimately, a review audit report[14] was presented to the Agency. It reported that the Home did not comply with seven expected outcomes:
(a)Expected Outcome 1.1, Continuous improvement (management systems, staffing and organisational development);
(b)Expected Outcome 1.4, Comments and complaints;
(c)Expected Outcome 2.1, Continuous improvement (Health and personal care);
(d)Expected Outcome 2.4, Clinical care;
(e)Expected Outcome 2.5, Specialised nursing care needs;
(f)Expected Outcome 3.6, Privacy and dignity;
(g)Expected Outcome 4.1, Continuous improvement (Physical environment and safe systems).
[12] Exhibit 7.
[13] Exhibit 8.
[14] Exhibit 9.
The report recommended that accreditation not be revoked but that the period of accreditation be varied.
16.On 16 March 2007 the Agency, by a delegate, decided to vary the period of accreditation on the basis of a conclusion that the Home did not comply with the following expected outcomes:
(a)Expected Outcome 1.1, Continuous improvement (management systems, staffing and organisational development);
(b)Expected Outcome 1.4, Comments and complaints;
(c)Expected Outcome 2.1, Continuous improvement (Health and personal care);
(d)Expected Outcome 2.4, Clinical care;
(e)Expected Outcome 3.6, Privacy and dignity;
(f)Expected Outcome 4.1, Continuous improvement (Physical environment and safe systems).
17.It is relevant, as well, to note the conclusions reached by the Agency’s assessors in subsequent support visits. On 20 March 2007 and 2 April 2007, the Agency assessors remained of the opinion that there was non-compliance with those Expected Outcomes. They noted deficiencies in relation to Expected Outcomes 2.5, Specialized nursing care needs and 4.7 Infection control. On 23 April 2007, the Agency assessors were of the opinion that there was compliance, at that time, with Expected Outcomes 1.4 and 3.6, but that the Home remained non-compliant with the remaining four Expected Outcomes. These conclusions provided the basis of the purported re-consideration decision of the Agency on 27 April 2007.
18.A further support contact visit was undertaken on 24 May 2007. The assessors, Ms Trigg and Ms Catchlove, concluded that the Home then complied with Expected Outcome 1.1, Continuous improvement (management systems, staffing and organisational development), Expected Outcome 2.1, Continuous improvement (Health and personal care), Expected Outcome 2.4, Clinical care and Expected Outcome 4.1, Continuous improvement (Physical environment and safe systems). Thus, by 24 May 2007 at the latest, all of the compliance failures identified by the audit review team had been remedied. There is a controversy about the use that may be made of the results of the May 2007 support visit.
19.It is trite, but bears repeating in the present case, that the task that this Tribunal performs is that of merits review; it considers all the evidence to determine whether the decision under review was the correct or preferable decision. In doing so, the Tribunal may receive material that was not before the decision-maker. However, in the context of the present legislation it is relevant to note, as well, the remarks of Branson J. in Aged Care Standards and Accreditation Agency Ltd. v Kenna Investments Pty Ltd[15] where her Honour said:
“[30] The role of the Tribunal when reviewing a decision made under s 3.24 of the Principles is plainly to review the decision on the merits. In doing so it may, as the applicant concedes, receive relevant material that was not before the applicant when it made the decision under review. However, to adopt a phrase used by Lockhart J in Commissioner of Taxation (Cth) v McMahon, its task is to "go over again" the process of making the decision that the applicant was required to make. The applicant was required to make its decision in a timeframe which illustrates the central importance which the Principles accord to the review audit report. The importance that the Principles accord to the review audit report is also revealed by the reference in s 3.24(2)(d) to information, if any, received from the approved provider in response to the report of findings of the review audit. In my view, the Tribunal would be undertaking a quite different process from that which the Principles required the accreditation body to undertake were it to review a decision made under s 3.24 by reference to factual material remote in time from the review audit report. In particular, I consider that on review of a decision made under s 3.24 it is not open to the approved provider to seek to undermine the significance of the review audit report, and the recommendations included in it, by calling evidence of improvements in its practice and procedure implemented after the date of the decision and in response to the review audit report and recommendations.
[31] I conclude that the Tribunal would not be addressing the same questions as the applicant was required to address if it were to determine whether, at the time of the Tribunal's decision, the decision of the applicant under s 3.24 of the Principles can be seen to be the correct or preferable decision. This is not to say that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review. However, to be relevant to the Tribunal's decision, that evidence must, in my view, bear on the merits of the decision as at the time that it was required to be made.”
As Mr Knowles, counsel for the Agency, reminded us frequently her Honour’s views are binding on us. We accept that that is so, although we note that Mr Bickford, counsel for the Home, formally submitted that the case had been wrongly decided.
[15](2004) 138 FCR 428 at p. 436-7.
Our Task
20.As it seems to us, the task we are required to perform is to consider the material under each of the items from the Accreditation Standards where it is said the Home did not meet the expected outcome. We will then make findings of fact on the matters said to lead to that conclusion, and determine the manner and extent of any failure to meet the expected outcome and, in the language of the Agency’s policy documents, determine whether, as at March 2007, there was non-compliance, and if so the extent of such. Based on those conclusions, we will be required to reach a conclusion as to the preferable decision by way of response.
21.We also accept, as the Agency submitted[16], that we should not consider pieces of evidence in isolation and that we need to consider whether evidenced is corroborated by other evidence. Moreover, in making findings of fact we will have regard to the review audit report; however if we make factual findings contrary to those in that report we will be obliged to give effect to our factual findings rather than those of the report.
[16] Paragraph 3.2 of the respondent’s Supplementary Closing Submissions delivered on 2 January 2008 pursuant to leave granted at the hearing. We have marked these submissions Exhibit 46.
The Evidence – Some Preliminary Observations
22.The hearing of the evidence in this case occupied eight days, despite an estimate by the parties of five days. The transcript ran in excess of 850 pages and there are thousands of pages of exhibits containing, amongst other things, most of the evidence-in-chief of the various witnesses. Much of that evidence is, we consider, irrelevant and quite unnecessary. In order to understand that criticism it is necessary to examine some matters in the lead up to the hearing.
23.The material provided by the Agency’s assessors following the audit set out the conclusions reached by them based on their observations during the audit visit. The Review Audit Major Findings document set out these matters in greater detail than the Review Audit Report, but the manner in which the detail is set out is in the form of a conclusion and contains scant detail. The material in relation to Expected Outcome 2.1, Continuous improvement (Health and personal care) illustrates the point. Having set out the recommendation that the Home did not comply with this expected outcome, the report continued:
“There is currently no process to monitor performance of clinical outcomes against the accreditation standards and/or the effectiveness of the [Home’s] systems/processes. Results of audits do not provide information to guide service improvement; outcomes are not monitored or identified. Deficiencies within the [Home’s] systems and processes have not been identified. Analysis of data is not used to identify opportunities for improvement or demonstrate improved results for stakeholders. The [Home] has identified the need to improve their internal auditing program by introducing audits to monitor outcomes, however proposed ‘outcome’ audits have not yet been implemented.”
Some further detail by way of supporting information then followed however universally neither staff said to have been spoken to nor residents whose treatment was in issue were named.
24.When it came time for the Home to put on its statements in preparation for the hearing the first statement was by Mr Barry Bird[17], the Home’s Quality Systems Manager. He commented at some length on the absence of particularity in the allegations made and the difficulty that the Home was said to be experiencing in meeting and dealing with those allegations.
[17] Exhibit 31.
25.Thereafter, the Agency filed the first round of its witness statements of the assessors who had undertaken the review audit – Ms Trigg, Ms Williams and Ms Catchlove. The first vice that these statements suffered from is that, predominantly, they were written in a way that did not indicate whether the witness was giving evidence of personal observations or experiences. Thus, they are replete with reference to matters that “we” or “the team” found or observed. The vice in putting on evidence of that nature is obvious.
26.The next deficiency in the statements of the Agency’s witnesses is that they seem, in very large part, to be designed to sustain and support the conclusions that the members of the audit team reached in the course of the audit rather than setting out the factual observations made by the witnesses. Two extracts from the statement of Ms Trigg[18], the team-leader during the audit, demonstrate the point. In relation to Expected Outcome 1.4, Comments and complaints, Ms Trigg said:
“28.The next expected outcome that was found to be non-compliant was Expected Outcome 1.4, Comments and complaints. We felt that, overall, residents were not satisfied that their complaints were managed satisfactorily, and three residents expressed a fear of retribution.
29.We found that complaints forms were not readily available, there was no process to enable anonymous complaints to ensure confidentiality of complainant, feedback was not actively sought from residents with language communication difficulties, and feedback was not consistently addressed.”
[18] Exhibit 5.
27.In relation to Expected Outcome 3.6, Privacy and dignity, Ms Trigg said:
“39.We also found that [the Home] was non-compliant with Expected Outcome 3.6 Privacy and dignity. We felt that staff practices did not maintain residents’ privacy, dignity and confidentiality. In particular, this was a problem with the shared toilet and bathroom amenities where residents were being exposed and observed whilst using those facilities, due to, for example, the doors being open or privacy screens/curtains not being closed and with residents being exposed in public areas such as hallways and lounge/dining rooms.
40.[The Home] conducted concurrently two “Doors Open” surveys, one dealing with the doors at the end of B wing, which enabled people outside in the car park or on the footpath to see into the wing; and one dealing with toilet doors which were being left open in the shared bathrooms. I think that [the Home] missed the point with both surveys. Our concern was that even if the doors were closed, anybody inside the building were [sic] able to see those residents being exposed – these were not residents in their bedrooms, it was occurring in the corridors and public areas. At subsequent support contacts staff indicated to us that they were aware which residents were likely to inadvertently expose themselves, however at the time of the review audit no action had been taken to ensure that their privacy was being respected.”
28.To a considerable extent, the conclusions expressed in these paragraphs are secondary conclusions; they are conclusions that the witness has reached on the basis of primary facts—observations made, documents viewed and conversations had, in the course of the review audit. It may be perfectly acceptable to express matters in this way in the Review Audit Major Findings or the Review Audit Report, however it is unhelpful to do so where this Tribunal is obliged to undertake merits review and reach its own conclusions from primary facts.
29.The passages illustrate two further vices common in the witness statements relied upon by the Agency. The first is the tendency to have the witnesses arguing the case under the guise of evidence. We comment below, when dealing with our views about individual witnesses, that some appeared to us to be too anxious to defend the decisions that had been made rather than to present an objective view of the facts. Whether an issue raised by the Home misses the point or not is not a matter upon which a witness may make any useful comment. It is comment and best left to counsel or solicitor with the task of arguing the case.
30.The other vice evident in the passages, and repeated throughout the statements by the Agency’s witnesses, is the habit of reporting conversations, particularly with staff from the Home, in terms of conclusions rather than what was said. We do not suggest that assessors can be expected to have a perfect recollection of the many conversations they may have in the course of a review audit. But, evidence of what was actually said in a conversation, aided by contemporaneous diary notes, is to be preferred to the assertion that an unspecified number of unnamed staff “indicated” a conclusion to the Agency’s assessors.
31.We observe, as well, that the evidence of the assessors was given without the assistance of reference to any documents or photographs. There were many instances where reference was made to documents – patient’s clinical notes and suchlike – to demonstrate a conclusion reached by a witness and there are even instances where there is a contest about what was contained in the document at the time of the review audit. We will deal with those controversies below when we make findings on matters of disputed fact; however, reference to a copy of the document in issue rather than a possibly imperfect recollection of it is to be preferred. The “best evidence” rule is not an arcane rule of evidence; it is the product of experience that shows that the best evidence of the contents of a document is the document itself, or, in this age of scanning and photocopying, a copy of it. The same may be said in relation to matters where a single picture is capable of demonstrating a fact more readily than a witnesses description, a fortiori where the description is given in unparticularised terms. We have in mind, for example, the observation by Ms Williams[19] that:
“staff positioned wheelchair-bound residents in corridors which were designated [fire] exits.”
[19] Exhibit 14, paragraph 26(b).
As it seems to us, the point sought to be made by Ms Williams could be more easily made, and made without too much scope for controversy, had she taken a picture of the scene she sought to describe. In this day and age where digital cameras are in widespread use we commend their use to the Agency.
32.The pattern that emerges from the Agency’s witness statements of asserting conclusions was not, as had been hoped, clarified by the Agency’s Amended Statement of Facts and Contentions lodged in response to a direction by the Tribunal to file and serve a document “outlining the facts to be relied upon to support the allegations against [the Home]”. The Amended Statement did not, by any stretch of the imagination, descend to providing the type of detail envisaged by the direction.
33.We accept that the task the assessors perform is difficult, and we do not want it to be thought that we are intending in any way to diminish the importance of the work they perform. However, consistent with the obligations of this Tribunal, we make these observations with a view to avoiding or minimising in future cases factual controversies such as have beset the present case.
34.We add that much of the criticism levelled at the evidence of the Agency’s witnesses is also true of some the witnesses for the Home. Thus, by way of example, it is tiresome and quite unhelpful, to have Mr Bird complain endlessly about the lack of particularity in the allegations made by the Agency’s witnesses.
The Evidence – Particular Witnesses
35.We propose to start by setting out our observations about particular witnesses before applying those observations to the evidence and making findings on the factual issues that arise. We should say that we accept that the witnesses are not responsible for the deficiencies in the evidence we have identified in paragraphs 25 to 34 above. The faults lie with those who drafted the statements.
Bridget Paul
36.Ms Paul is employed by the Agency as the Manager, Accreditation Policy and Quality Assurance. To the extent to which her evidence was relevant (and much of it was not), it was uncontroversial and dealt with matters of general policy. In particular, Ms Paul produced the Agency’s “Audit handbook for assessors” and the “Results and Processes Guide”, policy documents to which we will later make reference. Whether, in fact, the assessors complied with the policies is not a matter on which Ms Paul can offer any useful comment.
Carolyn Trigg
37.Mr Bickford was particularly critical of the evidence of the three assessors who undertook the review audit—Ms Trigg, Ms Williams and Ms Catchlove. The evidence they give is important because it provides the factual underpinning for the Agency’s case. There were aspects of the evidence of each of them that give us cause for concern. In particular, each of Ms Trigg, Ms Williams, and Ms Catchlove had a tendency to be argumentative in the course of cross-examination. Each appeared to want to anticipate the argument ultimately sought to be made by questions in cross-examination and to rebut, in advance, the basis for argument intended (or perceived to be intended) to be advanced. Moreover, each of them appeared to see cross-examination as an opportunity to defend the decision that they had made, rather than presenting an objective view of the facts. Perhaps this attitude, common to all three witnesses, was the product of inexperience. We do not know. But the approach of all three witnesses seemed to reveal a lack of objectivity and detachment, both desirable features in witnesses in cases such as the present.
38.One further initial observation does need to be made about the correctness and accuracy of witness statements of these three witnesses. There were several instances where significant inaccuracy in the witness statements was accepted in the course of cross-examination. One interpretation that can be placed on that is that the witnesses have been lax in reading and checking the statements prepared for them. If that be the case it demonstrates a lack of attention to detail that is troubling. If it demonstrates deliberate misstatement that is even more troubling. Either way, the numerous instances of admitted misstatement give us cause for concern with the evidence of the assessors who undertook the review audit.
39.Beyond these general matters there were other aspects of Ms Trigg’s evidence that we found troubling. Paragraph 39 of her first statement[20] was in these terms:
“We also found that [the Home] was non-compliant with Expected Outcome 3.6 Privacy and dignity. We felt that staff practices did not maintain residents’ privacy, dignity and confidentiality. In particular, this was a problem with the shared toilet and bathroom amenities where residents were being exposed and observed whilst using those facilities, due to, for example, the doors being open or privacy screens/curtains not being closed and with residents being exposed in public areas such as hallways and lounge/dining rooms.”[21]
Subsequently Ms Trigg gave further detail to this observation, saying[22]:
“I observed on one occasion, that both the inner and outer door of the bathroom had been left open while a resident was in the shower, making it possible for anyone to see the resident if they went in through the outer door…”
[20] Exhibit 5.
[21] It is not to the present point that the third sentence confuses two separate concepts – the “problem” with the shared toilet and bathroom amenities and what may have been visible in public areas.
[22] Exhibit 6, CT-3, # 53.
Our concern is with the suggestion that residents using the shared facilities could be viewed by anyone who entered the outer door. In fact, reference to photographs and the plan of the area demonstrate (and Ms Trigg seemed to concede) that even if a resident left the cubicle door open that resident could not be observed by another person in the bathroom unless that person stood directly in front of the open door; itself inside the separate bathroom area with its own door. Both of Ms Trigg’s statements appear to us to be a gross exaggeration of whatever observations she made.
40.Similarly, Ms Trigg gave evidence[23] of having observed, from the car park, a resident exposed in B wing. This observation was relied upon as supporting the conclusion that the Home failed to ensure the privacy and dignity of residents. However, it transpired that this observation was made for “maybe a minute” and when Ms Trigg later went to B wing the resident was no longer exposed. Ms Trigg appeared to accept that incidents of this nature were likely to occur with aged residents and suggested that an accredited provider ought to have a system to minimise such occurrences. Given that the resident had been covered up by the time Ms Trigg went to the area it may well be that the Home had such a system which had remedied the resident’s exposure. We do not know but Ms Trigg appears not to have considered this as a possibility. With no idea how long the resident had been exposed before or after her observation Ms Trigg relied upon her brief observation to reach a conclusion adverse to the Home. In the circumstances, we think that it is unfair to do so.
[23]Exhibit 6, CT-3, # 61.
41.In relation to the issue of complaints, Ms Trigg’s evidence-in-chief included the following:
“I also considered the complete absence of any complaints indicated that there was not a system in place to ensure access to a complaints mechanism.”
That is an inference that may be able to be drawn from the absence of complaints but there are other inferences, more favourable to the Home that might equally be drawn, including the inference that the residents had nothing to complain about. Our concern is that Ms Trigg appears to have drawn an unfavourable inference without having considered the possibility of any other, more favourable, inference.
42.We do not suggest that these are the only matters that cause us concern; rather they exemplify matters that lead us to have reservations about the reliability of the evidence of Ms Trigg. Nor do we do suggest that these reservations ought lead to any wholesale rejection of her evidence, especially where it is not contradicted. However we are left with the distinct impression that Ms Trigg’s evidence needs to be viewed with caution.
43.We should, at this stage, make mention of the controversy surrounding the question of whether Ms Trigg and Ms Catchlove interviewed one particular resident, Mr S. The case for the Home, put broadly, is that they both did and that if Mr S made a complaint then it ought not to have been acted upon by the assessors as Mr S has advanced dementia and a history of making outlandish complaints. Each of Ms Trigg and Ms Catchlove deny speaking to Mr S, collectively or individually.
44.In our view, we need not resolve this controversy. The question of whether Mr S was interviewed or not is collateral, that is, it is not relevant to a matter in issue in the proceedings. Thus, the Home is bound by the general rule that the answers by Ms Trigg and Ms Catchlove i.e. their denials of having spoken to Mr S, must be treated as final[24]. The evidence of the Home’s witnesses, seeking to controvert their denials is an impermissible attempt to circumvent the finality rule. The Tribunal is not, of course, bound by the rules of evidence and no objection was taken to the evidence but despite that we are of the view that it would be unfair to Ms Trigg and to Ms Catchlove to reach any conclusions about their reliability on the basis of determining this controversy and thus we do not do so. This entire controversy was an unnecessary and unedifying distraction.
[24]Cross on Evidence, 6th Australian ed., 2000 Butterworths, at para. [17580].
Cathy Williams
45.We have already observed that Ms Williams was argumentative in giving her evidence. She had, as well, a tendency not to directly answer simple questions. The Home’s closing submissions list numerous examples and it is unnecessary for us to recite those instances here. There were other instances where her evidence was, with respect, misleading. One egregious example was in relation to an incident with Mr Bird and the fire escape door. Ms Williams’ statement[25] conveys the clear impression that the fire door itself needed to be unlocked with a key. It transpired that it was an alarm associated with that door that was activated with a key, not the fire door itself. Her supplementary statement[26] repeats this misleading observation by referring to “a key was not able to be located to open this door”. These misstatements trouble us. At the very least, they demonstrate a deplorable lack of attention to important detail in the preparation and execution of her statements.
[25] Exhibit 14, paragraph 26(c).
[26] Exhibit 15, CW-1, # 72.
46.These matters lead us to conclude that we ought approach Ms Williams’ evidence, particularly where there is factual controversy, with caution.
Clare Catchlove
47.As was observed in the course of closing submissions, Ms Catchlove appeared to have adopted the habit of refusing to look at counsel for the Home during cross-examination. However, we accept, as Mr Knowles explained, that this is likely to have been the product of over-enthusiastic adherence to his advice to her to direct her answers to the members of the Tribunal. Our conclusions, adverse to Ms Catchlove, are reached independently of this somewhat disconcerting mannerism.
48.Those conclusions are informed by Ms Catchlove’s argumentative manner, again exemplified in the Home’s closing submissions, her dogmatic manner and the instances where it can be demonstrated that her evidence overstates the position. There were numerous instances of this; some examples will suffice.
49.In her statement[27] Ms Catchlove made reference to the administration of “PRN” i.e. as required, medication at the Home, and said this:
“Further, there appeared to be no investigation into the cause of the situation, no real clinical oversight of the administration of PRN medication, and the situation was not brought to the attention of the doctors.”
[27] Exhibit 17, paragraph 11(d).
That latter comment, however, overstates the position, as Ms Catchlove accepted. In reality, what she intended to convey was that the Home was not able to demonstrate that “the situation” had been brought to the attention of the doctors. There is an appreciable difference between the two concepts and the manner in which it is put imputes a greater degree of culpability on the part of the Home than is warranted from the accepted position, assuming it to be the case.
50.The issue of residents’ complaints was a contentious issue both before and during the hearing, in part because the Agency’s witnesses took the view that they could not be compelled to disclose the identity of residents[28]. Because of this there was, we would have thought, a heightened need for scrupulous accuracy in the evidence of the Agency’s witnesses in recounting the nature and terms of complaints said to have been made. On this aspect of the matter Ms Catchlove[29] said:
“our interviews with residents showed that they were not satisfied with the way their complaints were being managed, and also had real fears of retribution. I talked with two residents’ representatives and one resident. The two representatives stated that [the Home] was using toileting as a form of punishment, and described the staff attitude as belligerent. Discussions with residents revealed that some of them felt concerned about the repercussions of making a complaint, and one stated that staff were cruel, as they had made him wait to go to the bathroom.”
[28] It was not necessary for us to reach any conclusion about the correctness of this view.
[29] Exhibit 17, paragraph 13(a).
We comment below on whether, as a matter of fact, these matters are made out. However, our present concern is with Ms Catchlove’s own concessions as to the accuracy of the statements.
51.First, she acknowledged in the course of cross-examination (having attested to the truth and accuracy of her statements in evidence in chief) that the reference to discussions with “residents” was wrong and that she had had those discussions with only one resident. Moreover the resident did not state “that staff were cruel” rather he said of the staff, according to Ms Catchlove’s notes, “some are alright, others are cruel”. Ms Catchlove’s evidence significantly overstates the comment that she says was made to her.
52.One of the matters reported upon by Ms Catchlove concerned a female resident who had a fall at the Home around 5 a.m. on 12 January 2007. It transpired, when x-rays were taken some days later, that the resident had fractured the head of her femur. Ms Catchlove was critical of the Home’s clinical care in relation to this incident. She said of the treatment involved:
“The resident was not reviewed for some 33 or 34 hours after the incident – when the resident was eventually seen by an after-hours doctor …”
A fair reading of this passage seems to us to convey the impression that the resident received no treatment until 33 or 34 hours after the fall. What this statement does not reflect is that the Home consulted with the resident’s doctor by telephone a short time after the fall and administered medication prescribed by that doctor to deal with the only symptoms then complained of by the resident. That was demonstrated by the Home’s clinical notes, viewed by Ms Catchlove at the time. Moreover, those notes demonstrate frequent attendances on the resident by nursing staff during the 33 or 34 hour period.
53.Again, we shall not record all of the matters that trouble us but there are numerous instances of the type exemplified above where, even on her own account, Ms Catchlove’s evidence overstates or misstates her observations in a way that appears to put the Home’s treatment of its residents in a much more unfavourable light that is warranted by the objective facts as recounted by Ms Catchlove. Again, in the case of her evidence, we propose to treat it with considerable caution.
Geraldine Donaldson
54.Ms Donaldson was another of the Agency’s assessors. She was the team leader on a support contact visit undertaken on 8 February 2007. Nothing about the way she gave her evidence caused us concern about the underlying reliability of her evidence although ultimately we do not need to determine whether the conclusion that she reached about the Home’s compliance with Expected Outcome 2.7 as at 8 February 2007 was warranted.
Steven McNamara
55.Mr McNamara is in a similar position to Ms Donaldson. He undertook a support contact visit to the Home on 30 November 2006. We are unable to regard his evidence as touching upon the issue that we are required to decide. Even if we were to accept that he was correct to conclude that in November 2006 the Home failed to comply with Expected Outcome 2.12, Continence management, and Expected Outcome 2.14, Mobility, dexterity and rehabilitation, we are unable to see how that could be logically probative of any non-compliance in February 2007 absent a suggestion (which is not made here) that the February 2007 non-compliance was a continuation of an earlier non-compliance from the November 2006 visit.
John Potts
56.The evidence of Mr Potts was not challenged at all. Were it necessary for us to do so we would accept it however we have difficulty in seeing how it has any relevance to the issues we have to decide. We add, for completeness, that we propose to ignore his gratuitous comment, made in the course of cross-examination, about the reasons for the departure from the Home of the Care Manager at the time of the review audit.
Heather Ebbstein
57.Ms Ebbstein was an assistant in nursing at the Home. We saw nothing in the way that she gave her evidence that gave us reason to doubt the accuracy and reliability of her evidence.
Christine Millman
58.Similarly, we have no reason to doubt the accuracy and reliability of the evidence of Ms Millman, another of the Home’s assistants in nursing, which concerns the same incident as that described by Ms Ebbstein.
Barry Bird
59.Mr Bird was at the time of the review audit, but is no longer, employed as the Home’s Quality Systems Manager. Much of his evidence was not devoted to argumentative matters. It is true, as well, that he had a tendency to refer to matters of which he had no direct knowledge but, as it seems to us, we are able to treat his evidence as evidence of a general practice adopted at the Home. We bear in mind that much of the criticism made by the assessors of the Home’s practices and procedures was necessarily a criticism of Mr Bird and, to that extent, he has an interest in rebutting that criticism. But despite that we regard Mr Bird’s evidence as generally reliable.
Judith Pigram
60.Ms Pigram was and is employed at the Home as a registered nurse. She has been employed there in excess of 19 years. Her first statement[30] is devoted entirely to the question of whether Ms Trigg and Ms Catchlove interviewed Mr S. We regard that evidence as being irrelevant and inadmissible. Mr Knowles was critical of Ms Pigram’s evidence and, in particular, disputed the Home’s submission that she made appropriate concessions when giving evidence. This submission was footnoted with a reference to some ten pages of transcript. Having reminded ourselves from the transcript of that evidence we see nothing in it that suggests, contrary to our own impression, that she was not willing to make appropriate concessions.
[30] Exhibit 37.
61.Similarly, it was suggested, by reference to the same ten pages of transcript, that Ms Pigram was “inclined to avoid directly answering some questions asked of [her] in cross-examination”. We do not accept that that was so. We regarded Ms Pigram as an impressive witness who answered thoughtfully and carefully although it has to be said that some aspects of the statement containing her evidence in chief have been unhelpfully drafted.
Elizabeth Batchelor
62.Ms Batchelor is the Executive Director of Nursing at the Home. She has been employed by the Home in various nursing positions since 1984 and has occupied her present position since December 2006, that is, during the currency of the review audit.
63.Criticism[31] was made of her evidence on the basis that she gave oral evidence which was “completely new” and had not, it was said, been referred to in her earlier written evidence. The only example given of this was said to be a reference by her to a three-monthly review of resident care plans not earlier referred to and as to which, it was said, there had been no proper explanation why these matters had not been referred to earlier. The argument might have some force if it could be shown that it was a matter that was material to the matters in issue in the proceedings. It is not enough to raise a matter in cross-examination and then criticize the witness for not having referred to it in evidence in chief. What must be shown is that the omission was material, that is, that the omitted matter ought reasonably have been deposed to in the evidence in chief.
[31] Exhibit 46, paragraph 4.6.
64.Ms Batchelor also impressed us as a careful and reliable witness. We see no reason to doubt the reliability of her evidence.
The Evidence of Non-Compliance
Non compliance and deficiency
65.The legislative provisions relevant in this matter provide no definition of the term “non-compliance”. However, in her evidence, Ms Paul identified a document entitled Audit Handbook for Assessors. At 2.2(d) it reads:
“A recommendation that a home does comply means that residents are safe and well cared for, their rights are respected and are able to lead a life that is as fulfilling as can reasonably be expected given their individual circumstances.
A recommendation that a home does not comply means that there is a potential or actual impact on residents’ health, safety, rights or ability to lead a fulfilling life within their personal circumstances that is attributable to the way the home provides care and services.”
66.Ms Paul described the document as detailing the approach to assessing compliance which all assessors use. There is no obligation on the Tribunal to adopt what is, in effect, the declaration of policy to be followed by the Agency’s assessors[32]. Nevertheless, such policy documents may be relied upon in circumstances where there is no clear reason not to do so[33]. In the present case, we are satisfied that we may take guidance from the document in respect of what constitutes non-compliance.
[32] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
[33] See e.g. Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645; Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
67.Evidence was also given by the Agency’s witnesses that a shortfall in expected outcomes may arise but there will be situations where this does not amount to non-compliance. Such situations were described as “deficiencies”. These would usually result in the Agency making provision for the institution to make good the shortfall and for it to be monitored in future visitations by agency assessors. No definition of the term “deficiency” was provided in materials before the Tribunal. However, clearly, it constitutes a shortfall which is less serious than the description given above for non-compliance.
Expected Outcome 1.1: Continuous improvement (Management systems, staffing and organisational development)
68.As is apparent from s 3.18 of the Accreditation Grant Principles and its prominence as a matter indicator in each of the four matters, the notion of “continuous improvement” is a significant part of the Accreditation Standards. Despite that, the expression is not defined. Ms Trigg described continuous improvement in these terms[34]:
“Continuous improvement is a systematic, ongoing effort to raise a home’s performance as measured against the standards. Approved providers have a responsibility to actively pursue continuous improvement throughout the accreditation period and ensure compliance with all outcomes at all times.
An effective continuous improvement process involves the establishment and support of a culture that aims for better practice in care and service provision. Where quality assurance is concerned with the maintenance of systems and processes to ensure variances are managed, continuous improvement moves beyond this to lift the home’s performance to a higher standard.
Basic elements of an effective continuous improvement process include establishment of a framework that enables identification of improvement opportunities; planning of improvement activities; implementation of planned actions; and evaluation of the effectiveness of actions taken and the outcome achieved. This should include a method of measuring and reviewing performance (monitoring) on a regular basis and processes to enable input from residents and other stakeholders to ensure consideration of their needs and preferences. Results should demonstrate the achievement of improved outcomes for residents.
Failure to undertake continuous improvement may result in deficits within the home not being identified, and therefore not addressed, which may result in adverse outcomes for residents.”
[34] Exhibit 5, paragraphs 10 – 13.
69.Mr Bird did not disagree with this evidence although he highlighted a “difference of opinion” in the approach taken by the Agency’s assessors to that taken by the Home. We rather think that this supposed difference, in a concept as vague as continuous improvement, is semantic rather than real. As it seems to us, the question posed is whether, by reference to the evidence, we are satisfied that the expected outcome, the active pursuit of continuous improvement, is demonstrated. We propose to consider that question by reference to that part of the Agency’s case that asserted that there was not the pursuit of continuous improvement and that part of the Home’s case that asserted that there was.
70.Because of the very nature of that which is being considered, there is a considerable overlap between the three matters where it is said by the Agency that the Home failed to comply with the “continuous improvement” expected outcome viz. management systems, staffing and organisational development; health and personal care; and physical environment and safe systems. We will examine the major portion of the evidence under the first matter and seek not to repeat it unnecessarily under the other matters.
71.We should also say, in the present context, that contrary to the submissions of the Agency, when considering continuous improvement it is relevant to have regard to evidence of events and actions occurring after the review audit findings not for the purpose of falsifying the review audit findings but to consider the incremental effect of graduated improvements. Put another way: where, as in the example of the Home’s introduction of the “Lee-Care System”, the implementation of that system necessarily occurs over a period of time that extends past the time of the review audit, we regard it as relevant to consider evidence of the post-review audit implementation steps to determine whether the steps implemented at the time of the review audit answered the description of continuous improvement.
72.Additionally it seems to us that it may be relevant to have regard to any evidence of the steps taken after the review audit that satisfied the Agency’s assessors that the particular expected outcome had been met. This, again, is not for the purpose of falsifying any review audit findings but for the purpose of providing some objective measure of the extent to which, on the Agency’s case, the Home had fallen below the appropriate standard required to meet the expected outcome.
73.Viewed in these ways, the evidence, in the language of Branson J. in Kenna Investments, bears on the merits of the decision as at the time it was required to be made.
74.The conclusion of the review audit report in relation to this expected outcome was put in these terms:
“Continuous improvement processes do not monitor performance against the accreditation standards and/or the effectiveness of the [Home’s] systems/processes. Results of audits do not provide information to guide service improvement; outcomes are not monitored or identified. Deficiencies with in [sic] the [Home’s] systems and processes have not been identified. Analysis of data is not used to identify opportunities for improvement or demonstrate improved results for stakeholders. The [Home] has identified the need to improve their internal auditing program by introducing audits to monitor outcomes, however proposed ‘outcome’ audits have not yet been implemented.”
75.The Agency’s Amended Statement of Facts and Contentions[35] identified the case for non-compliance with this expected outcome in these terms:
[35] Exhibit 1, paragraph 4.8.
“In relation to Expected Outcome 1.1, as at 16 March 2007:
(a) continuous improvement processes, such as audits, did not monitor performance against the Accreditation Standards;
(b) audits did not monitor the effectiveness of [the Home’s] systems and processes;
(c) although some audits monitored staff knowledge of internal processes, they did not identify if the processes were actually being implemented and if the processes achieved the intended or desired outcomes;
(d) there was no proper analysis of data collected through audits to identify trends relating to issues, problems or deficiencies;
(e) there was no proper analysis of such trends to identify factors underlying them and to permit implementation of systemic, remedial or preventative strategies;
(f) results of surveys of residents and representatives were not collated to identify common issues; and
(g) issues raised by such surveys were not consistently addressed.”
76.According to Mr Bird, the Home’s continuous improvement activities comprised:
(a) a strategic plan;
(b) process audits;
(c) quality audits;
(d) hygiene audits;
(e) clinical audits and reviews of residents’ care plans;
(f) surveys of residents and relatives.
The strategic plan
77.We do not consider the strategic plan to be of any assistance in demonstrating continuous improvement. It was not documented and none of the nursing staff called demonstrated any knowledge of it. An uncommunicated strategic plan may have assisted Mr Bird in the performance of his role as Quality Systems Manager but it could hardly have given guidance to the balance of the staff.
Process audits
78.The Home has a system of documenting a wide variety of the tasks and procedures undertaken at the Home. The task of process auditing was to test the knowledge of staff in relation to the steps involved in the particular process on a monthly basis by selecting a different process each month. All staff were aware, from a calendar, which processes were to be the subject of the monthly audit however generally only one staff member was selected to undergo the audit.
79.The Agency’s criticisms of the process audits included that the staff sample (generally one person from an overall staff pool of about 82) was inadequate and that, as Ms Trigg put the matter, the process:
“was not actually monitoring any outcomes, so that there was no way for them to tell if their desired outcomes were being achieved, or if there were any issues that they needed to address to improve their processes.”
It never became clear, at least to us, why Ms Trigg considered that testing staff process knowledge in this way was inadequate or what she suggested ought to be done by way of monitoring. We are unable to see why randomly testing staff in this way will not provide an impetus to all staff to be familiar with the processes that are to be tested. Moreover, it would be readily apparent whether the procedures that were the subject of process audits were effective.
80.The process audits seem to us to provide an adequate test of whether the processes were being implemented. Absent a suggestion that staff were wilfully failing or refusing to follow established procedures, a process of random audits of the type undertaken here seem to be capable of identifying whether the processes were being implemented correctly. Moreover Mr Bird spoke of the process of reviewing procedures where difficulties appeared. In a larger institution that system may have been more structured. In an institution the size of the Home it is our view that it was adequate.
Quality audits
81.Mr Bird spoke, as well, of the quality audit programme which involved two particular areas – falls and infection. Information regarding falls and infections was collated into a document which, in the case of falls, detailed the name of the resident and a short description of the nature of the fall and, in the case of infections, set out the nature of the infection and the floor where it had occurred. This information was, Mr Bird said, considered and discussed at monthly staff meetings. Staff either attended such meetings or received a copy of the falls and infection information and the meeting minutes.
82.The Agency’s case criticised this approach on the footing that there was no analysis of this information. Reliance was placed upon this passage of the evidence of Mr Bird:
“But it’s not an analysis of any trend that might be arising in relation to particular people in a particular area of the facility?‑‑‑No, because what we tend to do, what we do is look at[[36]] an individual person and we see this happen to people, and we look at that individual person to see what we can do to assist or to reduce the falls of a person. Our philosophy has been to look at the individual, not on trends.
[36] The transcript records this word as “as”. We think it should be “at”.
Ultimately the issue turns upon what is meant by analysis. Mr Bird used the expression to describe the mental and verbal processes involved in the consideration of the raw data recording falls and infection. In the case of some of the Agency’s witnesses analysis seemed to require that there be a document evidencing that consideration. Whilst we can see the merit in having a document that can be shown to an auditor that seems to us to be more a triumph of form over substance. We regard the process described by Mr Bird as involving a proper analysis of any developing trend in falls or infections. That is, consideration and discussion by qualified nursing staff of the data is, in our view, an appropriate response and adequate to meet the needs of continuous improvement in this aspect of the matter.
83.We should, however, say that it does seem to us that the minutes of the staff meetings in evidence before us are inadequate to properly convey to absent staff the gravamen of the discussions at the meetings on these topics and any conclusions reached. Given the inevitability, with shift work, that some staff will be absent from every meeting it would, we think, be better practice to expand the detail recorded in the minutes. That will have the additional benefit of providing a demonstration of the fact of the analysis.
84.We are, as well, somewhat troubled by the fact that the record of falls does not record the falls of two residents whose falls were otherwise evidenced on the material before us. There is an obvious gap in the processes where two falls, one leading to a fracture and hospitalisation, were not recorded.
Hygiene audits
85.These audits were introduced in late 2005 and involved the facility manager undertaking an inspection every two months and recording observations. Because no copies were taken by the auditors of the documents shown to them Ms Trigg gave an inadequate description of the documents in her evidence in chief. Reference to the documents demonstrated her error.
86.Mr Knowles criticised the case for the Home on the basis that Mr O’Neill, who had undertaken the inspections, had not been called and that Mr Bird could not give evidence of what Mr O’Neill had undertaken. The argument is unattractive. The documents speak for themselves. Our task is not to conduct a Royal Commission into the conduct of the Home; it is to determine whether we are satisfied that the Home was meeting the Expected Outcomes.
87.Different minds may have different views about the utility of the document that records the results of the hygiene audits and the capacity of the document to demonstrate systemic flaws. We consider, on balance, that it is adequate for the task, bearing in mind that the priority ought to be the care of residents rather than the creation of an audit trail.
88.We do, however, note that the February 2007 staff meeting minutes do not show, as we consider they ought, the results of the preceding month’s hygiene audit. It would be desirable if the minutes record that detail and the steps taken or to be taken to overcome any recorded deficiencies.
Clinical audits and review of resident care plans
89.The process of clinical audits commenced with a medication audit in February 2007. It was a response, no doubt, to the Agency’s conclusion in the support visit of 8 February 2007 that the Home did not comply with the medication management expected outcome. In that regard, it demonstrates continuous improvement although the Agency’s case does not concede that. The case for the Agency emphasised that the audit showed matters where improvement was required but that seems to us to be the purpose of an audit and the purpose of a goal of continuous improvement.
90.Moreover, Mr Knowles submitted:
“This also begs a question as to what other clinical audits might have uncovered if they had been conducted at an earlier time.”
Given the Agency’s proper reliance upon Kenna Investments we find that submission incongruous.
91.There seemed not to be any dispute that resident’s care plans were reviewed annually and no suggestion that any more frequent review was required.
Surveys of residents and relatives
92.As we comment below when we address the issue of comments and complaints, there were flaws in the Home’s processes in those areas. It is, as well, not entirely clear whether Ms Trigg, who gave evidence about responses to surveys, is speaking about the same documents that Mr Bird has exhibited. What we can say is that on the material before us it is possible for us to conclude that the Home did not have a consistent approach in dealing with adverse comments from residents and their representatives. The approach of annotating the response to the document was, we feel, inadequate. A more adequate response would have enabled the identification of similar comments.
The Lee-Care System
93.This system was one designed to provide a central computerised record of all matters relating to resident care. Implementation of the system commenced in late 2006 and was in the process of being introduced at the time of the review audit. This was a gradual process and, even in August 2007, the system was not fully operational. Nonetheless, the fact of its introduction is part of the process of continuous improvement.
Conclusions
94.As will be apparent from the foregoing we have a different view of the facts to those reached by the Agency's assessors. Nonetheless, as we have found, there were shortcomings in the way in which the Home was pursuing the objective of continuous improvement. But, within reason, an objective of pursuing continuous improvement does not necessarily mean that the pursuit will always be successful. The goal of continuous improvement implies that there will always be room to improve. Aged care is reliant upon human input and with human nature being what it is there will always be scope for human error. The task of continuous improvement in our view is to reduce the scope for human error and to anticipate problems.
95.This question of anticipation leads to another difference between the parties. The Agency’s submissions put forward this contention:
“In order for a home to improve continually its care and service provision, it is necessary that it proactively seek to identify improvement activities. The approach adopted at [the Home] was reactive. It simply responded to individual problems which occurred from time to time.”
We do not accept that the Home’s approach was entirely reactive.
96.It is too simplistic an approach to say that the Home was purely reactive. In some aspects that was true. But there are some situations where the response spoken of by Mr Bird and set out in paragraph 82 above will be perfectly proper. Take, for example, falls. We would imagine that a prudent provider would have a system in place where staff were obliged to be alert for potential hazards and staff training systems to reinforce that need. To that extent the response is proactive. But in all likelihood there will be falls. A provider will react to falls by examining the circumstances of each fall to determine whether there was a failing that could be remedied. In our view the Home undertakes a mixture of the proactive and reactive approaches.
97.In our view the systems adopted by the Home at the time of the review audit were sufficient to provide adequate monitoring of the Home’s performance against the Accreditation Standards and the effectiveness of its processes. The process audits were adequate to determine if processes were being followed and there was a proper analysis of data concerning resident risk. There were flaws in the Home’s approach to resident surveys and room for improvement in that area.
98.While there were failings in the Home’s systems, as we have identified, we do not regard them as such as would warrant the conclusion that the Home failed to meet the expected outcome of actively pursuing continuous improvement. In the Agency’s scheme of classifying faults into non-compliances and deficiencies, we regard the matters as deficiencies rather than as demonstrating a failure to meet or satisfy the expected outcome.
99.We do not believe that any of the failings that we have identified could have an actual or potential impact upon the health, safety or rights of residents or upon their ability to lead a fulfilling life.
100.We are comforted in taking that view by reference to the extent of systemic change that the Agency’s assessors identified as sufficient to make the Home compliant with Expected Outcome 1.1 by the time of the May 2007 support visit. The extent to which the assessors identified change that brought about compliance provides a measure of the extent of earlier failings. That measure seems to us to corroborate our conclusion that the extent of the Home’s failings did not lead to the conclusion that it had failed to meet the expected outcome. The conclusions from that Support Contact Record on this aspect were as follows:
“Continuous improvement processes include an internal auditing program to monitor care and service delivery processes and outcomes, regular surveying of staff, residents/representatives, and monitoring of other indicator data (such as incidents). Input from staff and residents/representatives is gathered through multi-purpose forms, comments and complaints processes, resident and staff meetings and verbal and/or written feedback provided directly to management. Processes have been established to ensure that identified deficiencies/opportunities for improvement are recorded, actioned and followed up and feedback provided to relevant parties as applicable. Staff demonstrated their understanding of the Home’s continuous improvement processes; staff indicated that these processes are effective and reported that improved outcomes have been achieved.
175.Ms Catchlove gave evidence concerning her observations of diabetes treatment records which she made in a visit to the Home in April 2007. Clearly, this was subsequent to the review audit. She concluded that these records demonstrated that staff at that time were still not complying with their revised plan parameters. She gave an example of this in relation to the treatment of resident Mr S whose diabetic treatment form was in evidence. It nominates the types of and timing of medication to be administered and includes the following question: At what BSL should oral hypoglycaemics be withheld? The hand-written answer in the form is “4.5 mmol”. In her evidence, Ms Catchlove said that, when she saw the original of that document, the hand-written answer in the form was “5 mmol”. The difference is significant because, on 28 March 2007, oral hypoglycaemics were administered to Mr S when his blood sugar levels were measured at 4.8 mmol. Ms Bachelor’s evidence was that the threshold level was entered on the document by Mr S’ doctor and she refuted Ms Catchlove’s inference that it had been amended from “5” to “4.5”. The original diabetic treatment form was in evidence and we also reject Ms Catchlove’s evidence in that regard. We are satisfied that the administration of medication to Mr S on this occasion was in accordance with the diabetic treatment form.
176.While Ms Bachelor said that diabetic residents were given treatment in accordance with both the Diabetes Association of Australia Guidelines and the resident’s medication chart, she also conceded that, following the review audit, a specific diabetes form was introduced into the Home to address the particular needs of residents with diabetes. She said that it was developed to accordance with the DAA guidelines and in consultation with the Loaded Hospital Diabetic Clinic. A copy of this document was included in the evidence before the Tribunal.
177.Considering all of the material before us in relation to the Home’s practices concerning insulin dependent residents, we are satisfied that they did not operate in a manner which potentially or actually impacted on residents’ health, safety, rights or ability to lead a fulfilling life within their personal circumstances and that there was no absence of compliance with the expected outcome concerning clinical care.
178.In the result, and taking the matters relating to clinical care collectively, we do not regard them as demonstrating a failure to meet the expected outcome. There will, necessarily, be flaws in any system that relies upon human input; we are satisfied that the flaws evident at the time of the review audit were not excessive and did not compromise patient care.
Expected Outcome 3.6: Privacy and dignity
179.This expected outcome requires that “each resident’s right to privacy, dignity and confidentiality is recognized and respected”.
180.The audit team made four findings. The first was that features of the Home’s living environment were not conducive to the maintenance of residents’ right to privacy and dignity. Reference was made to the open status of car-park doors which enabled passers-by to observe activities within the Home and also, in a corridor of the Home, to observation of a resident with lower limbs exposed.
181.The second was that residents do not receive the required assistance or support to maintain their privacy and dignity at all times. In this regard, reference was made to observations of residents whose modesty was not maintained in various situations: while they were seated, in corridors, lying on their beds or using a toilet facility in the absence of a privacy screen. It was also noted that staff in the vicinity of these residents, at the time, did not respond to amend the situation.
182.A third related to the design, in the special needs unit of the Home, of shared toilet and bathroom amenities which enabled observation from outside the facility unless staff ensured that doors were closed. Reference was made to the observation of a resident being assisted in showering and another in an open toilet cubicle as well as a “used”, unemptied and uncovered commode chair. Further, a resident in the communal dining room was observed to have spilt beverage on her lap without attention from staff until advised by a member of the audit team.
183.The fourth was that staff practices did not maintain resident’s privacy and confidentiality. In this regard, reference was made to a resident having a haircut in a communal activity room which was accessed by other residents at the time. Further, reference was made to resident/relative surveys which indicated dissatisfaction with the way that staff in the Home speak to them and 3 residents stated that they were not treated with respect by staff members.
184.In relation to these four conclusions, the audit team noted that management had responded to the various issues nominated by sending a memo to staff and also that matters relating to residents’ privacy and dignity had been discussed at staff meetings in February 2007.
185.The Agency alleged, under this head:
“In relation to Expected Outcome 3.6, as at 16 March 2007:
(a) the home’s physical environment was not conducive to maintenance of residents’ privacy and dignity;
(b) residents did not receive adequate assistance and support to maintain their privacy and dignity;
(c) staff practices were not sufficiently consistent with a recognition of residents’ right to privacy and dignity; and
(d) some residents stated that staff did not treat them with respect.”
186.We have some difficulty with the first and last of these matters. In relation to the first, the physical premises, presumably in the form that they were in February and March 2007, were approved in September 2006. Moreover, in April 2007 the Agency was satisfied that the Home satisfied this expected outcome. We are not aware of any changes to the premises between March and April 2007 and the support contact record of the 23 April 2007 visit does not suggest that any alterations were made to the premises in order to meet this expected outcome.
187.As to the last of these matters we reiterate our earlier conclusions regarding the subjective feelings of residents. It is not sufficient, in our view, to demonstrate the fact that some residents considered that the staff did not treat them with respect. It needs to be shown as well that there was a reasonable basis for them to hold that view. We reject the submission of the Agency :
“that the fact that residents or their representatives have made complaints demonstrates that the systems in place at the home are insufficient to ensure the privacy and dignity of the residents.”
It is an extraordinary proposition that an approved provider should be held to have failed to meet an outcome merely because of the fact of a complaint without any regard for the reasonableness of the complaint, a fortiori in circumstances where the Agency is precluded from conveying to the approved provider (and, on the Agency’s case, the Tribunal) the identity of the complainant.
188.The Agency’s decision that there was non-compliance with Expected Outcome 3.6 was based on the contentions noted above. Mr Knowles submitted that the allegations made by the assessors were established by the evidence and that, when considered together at the time of the review audit, they demonstrated significant systemic deficiencies in the manner in which the Home addressed Expected Outcome 3.6 which amounted to non-compliance.
189.Ms Trigg, Ms Williams and Ms Catchlove each gave evidence of their observation of a resident sitting in a chair with the upper parts of her legs exposed. They were unaware of how she came to be in that situation or how long she had been in that position. Ms Trigg did not observe other occasions when residents were exposed or had their privacy compromised. She was advised of such matters by the other assessors. Ms Trigg and Ms Williams also noted that the doors at the end of both A and B wings of the Home were open such that persons outside were able to view inside the facility. They were aware of a residents’ survey completed after the review audit in which residents expressed the desire for the doors to remain open.
190.Ms Trigg and Ms Catchlove observed, from a corridor, that a door leading to a communal bathroom and toilet facility had been left open. They agreed that each of the cubicles had its own separate door. Ms Trigg believed that a person who walked into the area from the corridor would be able to see into the cubicles provided the cubicle door was open. She was wrong in that belief. Neither Ms Trigg nor Ms Catchlove observed residents engaged in showering or toileting activities in these cubicles.
191.Ms Catchlove referred to the incident involving the resident who had spilt a small cup of drink in her lap. As she was walking through the dining area with Ms Ebbstein, she noticed the resident and brought it to the attention of Ms Ebbstein. Ms Catchlove was unable to recall whether Ms Ebbstein requested assistance from another staff member in relation to the resident. Ms Ebbstein, in her evidence, confirmed that this incident occurred. Her recollection was that she and Ms Catchlove had seen the resident at the same time and that she immediately went to her assistance and called upon another staff member, Ms Millman, to help her. Ms Millman’s evidence was that she had been in the process of administering a meal to a bed-bound resident in room 15 adjacent to the dining room when she was asked by Ms Ebbstein for assistance. Ms Millman had previously been in the dining area and was to return when she had completed the task in room 15. She recalled that the resident had been left with a cup of orange juice and that this was a usual occurrence. She said that the resident was resistant to facility staff removing a cup from her hand and that, rather than distress her by doing so, it was convenient to leave her with the cup while attending to the needs of other residents. We regard this incident as falling well short of demonstrating that this resident’s privacy or dignity was compromised or affected.
192.Ms Williams also observed the shared toilet and bathroom amenities which, she said, would enable the observation of a resident in a cubicle if the door was left open. This seems to be similar to the observations of Ms Trigg and similarly erroneous. Further, she observed residents whose bedding and clothing did not adequately cover them and for whom privacy screens had not been drawn; one resident using a commode in a room without the benefit of a privacy screen; staff attending to a resident in a room without closing the privacy curtains or the door; a staff member entering a resident’s bedroom without knocking or seeking entry permission; and, in a resident’s room, a commode containing a used, unemptied and uncovered bed pan. Ms Williams accepted that some of the residents who were inadequately clothed were suffering from dementia and she agreed that it was not uncommon for such individuals to expose themselves, either inadvertently or deliberately, from time to time. She also accepted that this was not able to be prevented but considered that systems should be in place to minimize the occurrence.
193.Mr Bird’s evidence was that the external doors of A and B wings were designated fire doors and builders had not been able to advise of any mechanism that complied with fire safety standards such as would enable screening from the car park areas. He also referred to surveys which advised that residents preferred the doors to be opened as it provided for airflow and a view of the outside for those with restricted mobility. Mr Bird’s evidence was that clothing choice was a matter for the residents and representatives. He referred to memos which were sent to staff reminding them of their obligations to ensure that the privacy of residents was respected but he conceded that, after the audit, additional education had been provided to staff on these matters and consideration was given to the introduction of clothing which would decrease the risk of resident exposure. Mr Bird did not accept that residents might be visible from the corridor when showering or toileting. His evidence was that a mobile resident would enter the cubicle and close the door and that those who needed assistance would be prepared, for example by being fitted with a shower cape, before being taken to the shower area where the cubicles were large enough to enable wheel chair access.
194.Mr Bird’s evidence was that the Home had developed several policies and workplace practices which were designed to maximize residents’ privacy and dignity. In particular, he referred to the documents relating to policies in relation to Quality Practice, Residents Rights, Showering and Sponging a Resident and Dressing a Resident. Copies of these documents were provided in evidence.
195.Mr Bird considered that particular difficulties were faced by the Home in this matter because of the non-identification of many of the residents and staff members who were referred to by assessors. One of these was in relation to a male resident who was observed, through an open doorway to a corridor, urinating in a toilet facility. His evidence was that, at a meeting held on 7 March 2007, a particular resident identified that allegation and advised that he preferred the door to be ajar to allow him sufficient manoeuvrability with the hoist and large chair he used to enable him to self-toilet successfully. Mr Bird said that this procedure had been improved for that resident through the use of an appropriately placed modesty sheet. He said that, after the review audit, a “bath room survey” was conducted for which 35 responses were received, all of which indicated that the residents preferred to have the bathroom door left open. Copies of these survey responses were in evidence.
196.In relation to the observations about the public nature of the Home’s hairdressing procedures, Mr Bird’s evidence was that this is regarded as part of the social activity for residents and that it was his understanding that residents look forward to these occasions and the social interaction they provide. After the review audit, a “hairdressing survey” was conducted among residents and the responses unanimously indicated that they wished to continue with the communal hairdressing environment. Copies of these survey documents were provided in evidence.
197.This expected outcome requires that each resident’s right to privacy, dignity and confidentiality be recognized and respected. Many individual references have been made in the evidence of the assessors. Some of these we reject completely. That is the case with the observations concerning the special needs toilet facility. In evidence were photographs which demonstrate a room with a corridor doorway leading to another area where there are several cubicles, each with its own door. We accept the evidence of Mr Bird concerning the use of these cubicles by mobile residents and those who need assistance with the use of this facility. We reject the suggestion that residents using the facility may be observed from the corridor. Similarly, we consider that the allegation that the hair-dressing arrangements breach privacy and dignity considerations of the residents is without merit
198.Whilst we accept that that there is some substance to the allegations that, from time to time, residents may be observed in less than a complete state of dress, we considered that this is inevitable, especially in a facility where many of the residents suffer from a level of dementia. We are satisfied, particularly on the evidence of Mr Bird, that the Home had in place policies and procedures which are designed to, and which indeed did, minimize the extent to which this occurs.
199.Whilst some aspects of the procedures in place at the Home during the relevant period were not without some level of deficiency in relation to privacy and dignity, we are satisfied that, considered on an overall basis, the rights to privacy, dignity and confidentiality of each resident at the Home were, at the relevant time, recognized and respected and that the procedures at the Home operated in a manner which did not potentially or actually impact on residents’ health, safety, rights or ability to lead a fulfilling life within their personal circumstances. The management systems enabled residents to retain their rights and were assisted in achieving control of their own lives, as described in the principle underpinning Part 3 of Accreditation Standards. Therefore, we are satisfied that a finding of non-compliance in relation to Expected Outcome 3.6 is not established.
Expected Outcome 4.1, Continuous improvement (Physical environment and safe systems)
200.The Review Audit Report repeats the matters already noted under Item 1.1 and the Agency’s case relies upon the matters set out in paragraph 75 above. No additional matters are relied upon and, for the reasons we have already expressed in relation to the expected outcome for Item 1.1, we are satisfied that the Home was meeting the expected outcome for Item 4.1.
Deficiencies
201.The Agency relied upon what were said to be “deficiencies” at the Home i.e. matters where the Home had failings that did not warrant the conclusion of a failure to meet the expected outcome but where it was said that the matters relied upon should be considered, along with other demonstrated failings, in determining the appropriate response. We have very considerable doubts about the legitimacy of such an approach. It seems to us that the question that the Agency and this Tribunal must address is whether the Home met the expected outcomes. That is an absolute, that is, they were either met or they were not. A deficiency in one area would not turn a compliant outcome into a non-compliant outcome in another area. In any event, on the view we take of the matter it is unnecessary to decide the matter. We propose to assume that the approach is legitimate without deciding whether it is so. In relation to these allegations we will adopt the descriptions in the Agency’s closing submissions[40]. We observe, at the outset, that many of the claimed “deficiencies” are trifling in the extreme.
[40] Exhibit 44, paragraphs 12.5 to 13.3.
Training and records relating to it
202.This relates to the Home’s inability to provide Ms Williams, on demand, with certain records concerning staff training. Mr Bird said that the inability to produce the records at the time was attributable to a filing error on the part of an administrative staff member. We have no reason to doubt that this was so. The Agency’s submission that the documents were not produced at the hearing despite counsel for the Home having indicated an intention to do so is petty. We place no weight on it at all.
203.We reject the Agency’s submission that the inability to produce records to an assessor on demand leads to a conclusion that the Home’s “ability to monitor accurately who had undertaken particular training was impaired”.
204.The second aspect of criticism under this head is that a number of staff had not received annual training in relation to chemical safety and infection control. That may be accepted but the failing is trifling.
Living environment
205.We accept that the Home was deficient in failing to clean up dog droppings in an external area used by residents and their relatives and that, on occasions, items of equipment were left in corridors in a way that obstructed the passage of infirm residents.
206.We do not accept Ms Williams’ criticism in relation to the electrical cord trailing behind cleaning equipment. It never became clear how she would avoid that occurring. It seemed to us to be an inevitable incident of the use of cleaning equipment.
Fire evacuation
207.Ms Williams observed some furniture partially blocking a fire escape door. She said of this that, in addition to the fact of the obstruction:
“the more important issue is how such a situation could occur without [the Home’s] monitoring processes picking up on it.”
She had no idea how long the obstruction was present and when she subsequently returned to the area it was gone. That seems to indicate that the monitoring processes do work to pick up situations of this type. The same is true of her observations regarding residents in wheel chairs in corridors designated as fire exits.
208.It was the case that a fire exit door was jammed when checked by Ms Williams (although her original version regarding the key is erroneous) but we accept that the door had been only recently painted and that it was fixed immediately it was drawn to Mr Bird’s attention.
209.Ms Williams gave evidence of what she asserted was a deficiency that an alternative fire exit from the Home through the administration wing was not marked with signage indicating that there was a fire exit within the administration wing on the other side of the door. It is not clear to us why there should be such signage. The placement of signage of this nature is, we assume, governed by State legislation but no effort was made to demonstrate how this amounted to a breach of that legislation. It seems to us to be highly unlikely that signage would be required in this area given that it might distract attention from the fire escape in the corridor between C block and the administration wing.
210.Ms Williams’ next complaint in relation to fire safety was that emergency assembly areas were not marked as such. Mr Bird said that he did not know of any requirement to do so. Reliance was placed by the Agency upon the need to minimise risks from fire however no evidence was led to explain how signing the emergency exits as such would minimise those risks.
211.Then it was said that the Home did not have a central location for a list containing the mobility requirements of all residents. The practice of the Home was to keep a separate list for each wing of the requirements of residents in that wing. Reference was made to the possibility that a resident might not be situated on that resident’s floor. That may be so but we think there is a far greater risk in keeping the details in a single location or having a complete list in every location.
212.Finally, reference is made to the inability of the Home to produce fire training records. We find it impossible to see how the inability to produce those records to Ms Williams impacts in the slightest on fire safety.
Infection control and laundry
213.Ms Williams observed a hand-washing sink in C floor with a large crack across its width. The Home’s response was the defect would be remedied. The matter is trifling.
214.The next complaint was made of unlabelled food, food in a medication refrigerator and expired food products. Again these are trifling matters and no attempt was made to demonstrate that the matters affected or potentially affected the health or well-being of residents.
215.Ms Williams turned her attention to the laundry at the Home. She was critical of the fact that there was no cleaning schedule, no documented work procedures and no distinction on the floor between clean and dirty clothes. She did not suggest, as we understood her evidence, that the laundry was dirty or that there were unsatisfactory work practices or consequences from these supposed failings. This too seems to us to be a triumph of form over substance.
216.Reference was also made to the fact that no aprons or goggles were provided to laundry staff. We can understand, perhaps, that it is desirable to provide aprons (and they are now provided) but we are at a loss to understand why goggles are necessary.
Other matters
217.Ms Williams located in the maintenance storeroom a plastic bottle that had the proprietary name of the cleaning product written on it. This she said, was unsatisfactory, because:
“[w]hen chemicals are dispensed from their original container, it is a requirement that the new container is labelled with all of the relevant information.”
The source of this obligation never emerged. In any event we accept, as Mr Bird said, that the material safety data sheet in relation to the product was kept in the maintenance store room.
Other deficiencies
218.The Agency relied on other “deficiencies” including the extraordinary proposition that two residents had informed the assessment team (not otherwise specified) that the Home was noisy at night due to intrusions of other residents. These complaints demonstrate nothing other than a hypercritical attitude on the part of the Agency.
219.To the extent to which there are other deficiencies they are not of any great significance and do not lead us to conclude that, taken together with the other failings that we have identified, the Home failed to meet the expected outcomes in the Accreditation Standards. We reject the Agency’s submission that the nature and extent of the deficiencies points to wide-ranging problems at the Home at the time of the review audit.
Earlier non-compliance
220.The Agency submits that what it alleges is the Home’s “history of non-compliance and deficiencies” is relevant to the questions that we have to decide. We do not agree. It is conceivable that a pattern of earlier non-compliance might, in some cases, assist in establishing the fact of a later non-compliance but no cogent reason was suggested to us why it ought to do so in the present case.
Conclusions – The Extent of Non-Compliance
221.On the view we have of the matter the Home had a number of deficiencies but generally complied with the expected outcomes. None of the matters we have identified are such as to lead us to the conclusion that the Home did not meet the expected outcomes at the time of the review audit or in March 2007.
Conclusion
222.It follows that we would set aside the decision under review.
I certify that the preceding 222 paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Mr R G Kenny, Member.
Signed: ............................................................
Eleanor O’Gorman, Associate
Dates of Hearing 4 - 7, 10 – 13, & 21 December 2007
Date of final submissions 2 January 2008
Date of decision 16 January 2008
Counsel for the Applicant Mr P G Bickford
Solicitors for the Applicant Gadens Lawyers
Representative for the Respondent Mr R Knowles
Solicitors for the Respondent Clayton Utz Lawyers
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