Duncan and Anor and Department of Health and Ageing

[2004] AATA 747

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 747

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/910

GENERAL ADMINISTRATIVE DIVISION		)
Re		Dr Norma Duncan

Applicant

And Department of Health and Ageing

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/999

GENERAL ADMINISTRATIVE DIVISION		)
Re		Illawarra Retirement Trust

Applicant

And Department of Health and Ageing

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date16 July 2004

PlaceSydney

Decision The Tribunal affirms the decisions under review.

………………………………
  RP Handley
  Deputy President 

CATCHWORDS

FREEDOM OF INFORMATION – Freedom of Information Act – Aged Care Act – information sought concerning care of patient in aged care facility – refusal of access to information – aged care services – examination of the care provided to elderly patient – examination of the practices at the aged care facility including standard of care, staffing, complaints handling procedures and management practices – examination of the legislation relating to “exempt documents” – consideration of whether it is for the public benefit that material be released – held that the DAT Report with deletions should be disclosed to the First Applicant with a caution from the Tribunal as to how that material is used – held that the SCS Record should not be disclosed as it contains commercially sensitive material relating to the Second Applicant’s business activities –  held that the decisions under review are affirmed.

Freedom of Information Act 1982 ss 36(1), 38(1)(b)(i), 40, 40(1)(a), 40(1)(b), 43, 43(1)(b), 43(1)(c)

Aged Care Act 1997 ss86-1(b), 86-2(1), 86-2(2)

REASONS FOR DECISION

16 July 2004	Mr RP Handley, Deputy President
Summary

1.      The First Applicant, Dr Norma Duncan, requested information from the Respondent, the Department of Health and Ageing (“the Department”), under the Freedom of Information Act 1982 (“the FOI Act”). In particular, Dr Duncan sought a copy of the Detailed Analysis Team Report (“the DAT Report”) dated 18 June 2002 concerning the standard of care received by her deceased mother, Doris Joan Reynolds, at the William Beach Gardens Retirement Hostel, a retirement complex operated by the Second Applicant, the Illawarra Retirement Trust (“the IRT”). She also sought a copy of the Support Contact (site) Record (“the SCS Record”) dated 22 July 2003.

2. On 31 January 2003, the Department decided that both the DAT Report and the SCS Record were “exempt” documents under the FOI Act and refused to grant access to Dr Duncan. She sought an internal review of this decision. When the Department consulted the IRT about possible release of the DAT Report, the IRT opposed this on the ground that the Report contained confidential information concerning the IRT’s business affairs.

3. On 8 April 2003, the Department decided to grant Dr Duncan access to the DAT Report, with some exempt material deleted as permitted by the FOI Act, and refused to grant her access to the SCS Record on the basis that the document is exempt from disclosure under the Act. Dr Duncan applied to the Tribunal for a review of this decision. The IRT also sought a review of the decision of 8 April 2003 which was affirmed on a further internal review on 23 May 2003 whereupon the IRT applied to the Tribunal.

Background

4.      The Applicant, Norma Jean Duncan, was born on 1 May 1941 and is aged 63. She worked as a General Practitioner from 1978 until 31 December 2003.   During 2001, Dr Duncan’s mother, Doris Joan Reynolds (now deceased) was a resident of the William Beach Gardens aged care hostel in Wollongong, owned and operated by the IRT.    On 9 December 2001, Dr Duncan wrote to the supervisor of William Beach Gardens, drawing her attention to a number of matters, including that Mrs Reynolds had been severely injured through the use of a lifting machine, that the night staff had refused to toilet her during the night, and she had suffered embarrassment and loss of dignity as a result of having her underpants removed because they interfered with the lifting procedure and as a result of their not subsequently being replaced (T3).

5.      Between 9 December 2001 and 18 December 2001, staff at William Beach Gardens continued to use the lifting machine and Mrs Reynolds’ condition deteriorated.   Dr Duncan stated that her mother suffered pain, severe bruising of her arms, legs and genital area, anxiety and psychological shock (T3).   On 18 December 2001, Mrs Reynolds was transferred to the Woonona Nursing Home where she died on 29 December 2001.

6.      During 2002, Dr Duncan, together with her sister, Margaret Joan Corlett, and her brother, Kenneth Robert Duncan, attempted to obtain information regarding their late mother’s care from the IRT, but without success.  As a consequence, they lodged a complaint with the Aged Care Rights Service, which was subsequently handled by the Aged Care Complaints Resolution Scheme (T3).

7. By letter dated 2 December 2002 (T3), Dr Duncan wrote to the FOI Co-ordinator of the Department, seeking copies of two reports relating to her late mother’s care at William Beach Gardens, being the DAT Report and the SCS Record. This request was received by the Department on 6 December 2002 and acknowledged by letter dated 23 December 2002 (T4). By letter dated 2 January 2003, the Department notified the IRT that it had received a request under the FOI Act relating to the IRT’s affairs and seeking its comments by 20 January 2003 as to whether the disclosure of information sought would adversely affect its business activities (T5). The Department also wrote a similar letter to the Aged Care Standards and Accreditation Agency (T6). On 7 January 2003, Rex Leighton, the Corporate Policy Manager of the IRT, telephoned the Department to say that he would be seeking legal advice before commenting (T9). On 17 January 2003, Mr Leighton informed the Department that the documents sought should be “exempt” as “protected information” pursuant to s 86-1 of the Aged Care Act1997 and that disclosure was not necessary to prevent or lessen a serious risk to the safety, health, or well being of the recipient or the well being of any other care recipient (T11).

8. On 31 January 2003, after having also received comments from the Aged Care Standards and Accreditation Agency, Paul Tarranto, the Manager of the Department’s Aged Care and Planning Branch, wrote to Dr Duncan informing her that he had decided to refuse to release both documents to her on the basis that they were exempt under ss 38 and 43(1)(c) of the FOI Act (T14).

9.      On 20 February 2003, Dr Duncan sought an internal review of this decision.  On 28 March 2003, the Department’s New South Wales FOI Co-ordinator requested that Dr Duncan provide submissions as to whether she had been impliedly or expressly authorised by Mrs Reynolds (deceased) to obtain information as to her care (T19).    By letter dated 29 March 2003, Dr Duncan responded with supporting documents, stating that as she was the executor of her late mother’s estate and held a power of attorney,  it was implied that her late mother would want her to have access to the information sought (T20).

10. On 8 April 2003, Sue Kerr, the Department’s New South Wales State Manager decided to set aside the original decision relating to the DAT Report and determined that the DAT Report could be released to Dr Duncan, with some material deleted under s 22 of the FOI Act, on the ground that it related solely to the affairs of the approved provider, the IRT (the first internal review decision - T22). Ms Kerr also varied the decision in relation to the SCS Record by adding that it was also exempt from release under ss 40(1)(a) and (b) of the FOI Act, as it was in the public interest for agency assessors to be able to conduct audits of the standard of care provided in residential aged care services with the consent of approved providers without the fear of that information being disclosed, and that the release of the SCS Record could prejudice the future cooperation of approved providers.

11.     On 5 May 2003, the IRT applied for an internal review of the decision to release the DAT Report with deletions, citing amongst other reasons that the release of the document was not necessary to prevent or lessen a serious risk to the care recipient and that the operations of the IRT would be affected if the information in the report was used out of context and without proper explanation.  In particular, if given to the media, it could have a detrimental effect on the reputation of the business and on the morale of the staff who provided care to the late Mrs Reynolds (T25).

12.     On 23 May 2003, Jane Bailey, the Assistant Secretary of the Department’s New South Wales Quality Outcomes Branch affirmed the decision of 8 April 2003, stating that she considered the release of the report, with deletions, would not cause an unreasonable adverse effect on the business and/or professional affairs of the IRT (the second internal review decision - T28).    On 18 June 2003, the IRT applied to the Tribunal for a review of this decision (T1).

13.     On 4 June 2003, Dr Duncan lodged an application for a review of Ms Kerr’s decision of 8 April 2003 by the Tribunal.

14. At the hearing of this matter, Dr Duncan was represented by Dr John Bishop, of Counsel, the IRT was represented by Mr Nicholas Canosa, of Counsel, and the Department was represented by Mr Greg Peek, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), together with the documents tendered by the parties at the hearing. Oral evidence was given for the First Applicant by Dr Duncan and Mrs Lynda Grogan, for the Second Applicant by Mr Rex Leighton, and for the Respondent by Mr Kevin Macdonald.

Relevant Law and Policy

15.     The relevant legislation in this matter is the Freedom of Information Act 1982 (“the FOI Act”) and the Aged Care Act 1997 (“the Aged Care Act”). Section 3 of the FOI Act states:

(1)The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

16. Section 22(1) provides for the deletion of exempt matter or irrelevant material:

(1)       Where:

(a)       an agency or Minister decides:

(i) not to grant a request for access to a document on the ground that it is an exempt document; or

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i)        would not be an exempt document; and

(ii)       would not disclose such information; and

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

17.     Section 27 states:

(1) Where a request is received by an agency or Minister in respect of a document containing information concerning:

(a)       a person's business or professional affairs; or

(b) the business, commercial or financial affairs of an organisation or undertaking;

a decision to grant access under this Act to the document or an edited copy of the document, so far as it contains that information, must not be made unless, where it is reasonably practicable to do so having regard to all the circumstances (including the application of subsections 15(5) and (6)):

(c) the agency or Minister has given to the person or organisation or the proprietor of the undertaking a reasonable opportunity of making submissions in support of a contention that the document or edited copy is an exempt document under section 43; and

(d) the person making the decision has had regard to any submissions so made.

(2) Where, after any submissions have been made in accordance with subsection (1), a decision is made that the document or edited copy, so far as it contains the information referred to in subsection (1), is not an exempt document under section 43:

(a) the agency or Minister shall cause notice in writing of the decision to be given to the person who made the submissions, as well as to the person who made the request; and

(b) access shall not be given to the document or edited copy, so far as it contains the information referred to in subsection (1), unless:

(i) the time for an application to the Tribunal by that person in accordance with section 59 has expired and such an application (other than an application that has subsequently been withdrawn) has not been made; or

(ia) such an application has been made but the Tribunal has dismissed the application under section 42A of the Administrative Appeals Tribunal Act 1975 ; or

(ii) such an application has been made and the Tribunal has confirmed the decision.

(3) Nothing in paragraph (2)(b) prevents access being given to a document of a kind referred to in that paragraph if a further request has been made for access to the document and there is no failure to comply with this section in dealing with the further request.

18. Section 36(1) states:

(1)Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:

(a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or of the Government of the Commonwealth; and

(b)       would be contrary to the public interest.

19. Section 38(1)(b)(i) states relevantly:

(1)       Subject to subsection (1A), a document is an exempt document if:

(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and

(b)       either:

(i)        that provision is specified in Schedule 3; or

(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.

(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.

20. Schedule 3 of the FOI Act includes s 86-2(1) of the Aged Care Act. Subsection 86-2(1) creates an offence for the recording of, disclosure or use of “protected information” for purposes other than those set out in s 86-2(2) and s 86-3 of the Aged Care Act. These provisions are as follows:

86-1Meaning of protected information

In this Part, protected information is information that:

(a)    was acquired under or for the purposes of this Act; and

(b)       either:

(i)        is ^* personal information; or

(ii)       relates to the affairs of an approved provider; or

(iii) relates to the affairs of an applicant for approval under Part 2.1; or

(iv) relates to the affairs of an applicant for a grant under Chapter 5.

86-2     Use of protected information

(1)       A person is guilty of an offence if:

(a) the person makes a record of, discloses or otherwise uses information; and

(b)       the information is ^* protected information; and

(c) the information was acquired by the person in the course of performing duties or exercising powers or functions under this Act.

Penalty: Imprisonment for 2 years.

(2)       …

86-3     The Secretary may disclose ^*protected information:

(a) if the Secretary certifies, in writing, that it is necessary in the public interest to do so in a particular case—to such people and for such purposes as the Secretary determines; and

(b) to a person who is, in the opinion of the Secretary, expressly or impliedly authorised by the person to whom the information relates to obtain it; and …

21. Section 85-1 of the Aged Care Act lists those decisions that are “reviewable decisions”. They do not include decisions under s 86-3.

22. Section 40 of the FOI Act provides relevantly:

(1) Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency; [or]

(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency; …

(2)This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

23. Sections 43(1)(b) and 43(1)(c) state:

43(1)A document is an exempt document if its disclosure under this Act would disclose:

(a)…

(b) any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or

(c) information (other than trade secrets or information to which paragraph (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organization or undertaking, being information:

(i) the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organization or undertaking in respect of its lawful business, commercial or financial affairs; or

(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.

24.     Section 54(1D) states:

(1D)     Subject to subsection (1F), where:

(a) on a request of a kind mentioned in subsection 27(1) being made to an agency, the agency has decided that the document to which the request relates, or an edited copy of the document, being a document or edited copy that contains information concerning a person, organisation or proprietor of an undertaking, is not an exempt document under section 43 by virtue of containing that information; and

(b) the decision was not made by the responsible Minister or principal officer of the agency;

the person, organisation or proprietor may, by application in writing to the agency, request a review of the decision.

25.     Section 55(1) states:

(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with a request; or

26.     Section 59(1) states:

(1) Where, on a request having been made for access to a document containing information concerning:

(a)       a person's business or professional affairs; or

(b) the business, commercial or financial affairs of an organisation or undertaking;

an agency or Minister decides that the document to which the request relates, or an edited copy of the document, is not an exempt document under section 43, the person or organisation, or the proprietor of the undertaking, may apply to the Tribunal for a review of the decision.

Evidence

Lynda Grogan

27.     Mrs Grogan made a statement dated 1 March 2004 (A1).  She has worked as an assistant nurse in nursing homes for approximately eight years and as a care service employee for four years.  At the relevant time in December 2002, Mrs Grogan had worked at William Beach Gardens as a care service employee for about 18 months.  Although a casual employee, she was working “a lot of hours”.  She considered herself and the other nurses well trained.

28.     Mrs Grogan said when she first met Mrs Reynolds, Mrs Reynolds was able to support herself, and Mrs Grogan was able to assist her to a standing position without using a stand-up mechanical lifting device.  Mrs Reynolds was quite small – a little over 150cms in height, and weighing about 45kgs.  However, apparently, another member of staff complained to their supervisor, Pauline Martin, about the difficulty of lifting Mrs Reynolds and Ms Martin directed that all staff should use a mechanical lifting device for lifting Mrs Reynolds.  Mrs Grogan informed Ms Martin that she was able to manage Mrs Reynolds without this device but Ms Martin directed her to use this device.

29.     Mrs Grogan stated (A1 paragraph 6):

The stand up lifting device consisted of a moveable frame on wheels with a centre platform upon which the patient stood whilst supported by a strap which passed around the patient’s back and under the arms.  The patient whilst on the frame was then moved to the required position.

The device was for assisting a person who has some weight bearing capacity on one leg.  The device was used with Mrs Reynolds for about six weeks.

30.     Mrs Grogan said even before they began using the stand up lifting device, Mrs Reynolds had some skin tears and bruising, for example at the back of her leg, as a result of manual lifting by some staff members.  After they began to use the device, Mrs Reynolds complained about its use, and became agitated and upset because it removed what little independence she had.  Mrs Reynolds’ local doctor prescribed medication – Valium – to calm her but this further reduced Mrs Reynolds’ ability to support herself.  As a result, she became frailer, the first device was no longer suitable, and it was necessary to use a second type of mechanical lifting device.

31.     Mrs Grogan described this second device as follows (A1 paragraph 8):

This second mechanical lifting device was one which consisted of a strap which went around the back of the person and under the arms together with a sling under the thighs.  Each leg of the person was lifted into the sling which would then along with the back support bear the whole weight of the person.

It was a fully padded sling lifter.  One of the difficulties was that by this time Mrs Reynolds could not lift her arms as well as before.  Therefore, her arms had to be lifted to get them into the device.  This is probably how they became bruised.

32.     Mrs Grogan said the second device was used with Mrs Reynolds several times a day.  It would have been dangerous both for Mrs Reynolds and for the staff member not to use the device because Mrs Reynolds was so frail.  Despite Mrs Grogan’s best efforts, the device “caused her great distress, bruising and tearing to her inner thighs and severe pain” (A1 paragraph 9).  Mrs Grogan had not seen other staff using the device with Mrs Reynolds.   In cross-examination, Mrs Grogan said that while working at William Beach Gardens, she had received some training in the manual handling of patients at William Beach Gardens although the trainer noted Mrs Grogan had done this before.

33.     Mrs Grogan confirmed that the photographs produced by Dr Duncan (A2 NJD1) are consistent with her recollection of Mrs Reynolds’ bruising.  Mrs Grogan said she would expect serious bruising to be recorded in Mrs Reynolds’ Progress Notes although there might not be an incident report because the bruising was gradual.   The bruises on Mrs Reynolds’ upper legs developed in the last few weeks, while the bruises on her lower legs developed earlier.  The bruising on Mrs Reynolds’ arms probably occurred as a result of lifting them to move the sling underneath.

Dr Norma Duncan

34.     Dr Duncan made a statement dated 1 March 2004 (A2).  She is a medical practitioner with a specialist qualification in anaesthetics.  After working in hospitals and as an anaesthetist, from 1975 until she retired on 31 December 2003, she worked in general practice, from 1978 in Figtree.  During this period, Dr Duncan had extensive experience with the aged, including visiting retirement complexes.  She stated that for many years she has been concerned about the quality of patient care in such complexes including the lack of fully qualified nurses, inadequate training and shortage of staff.  Dr Duncan considers such deficiencies have increased over the last 10 years.

35.     Dr Duncan said her purpose in pursuing a tribunal review is to ensure the IRT and other approved providers “introduce effective measures to protect and promote the health and well being of aged persons in residential care”.  Access to the DAT Report and SCS Record would assist by enabling her to better assess the situation and, in particular, possible deficiencies in the investigation and recommendations.  With greater transparency comes greater accountability which in turn assists in raising standards.  Her “letter to the Editor”, published in GP News, the newsletter of the Illawarra Division of General Practice, in May 2003, in which she expressed her concern about “elder abuse”, was to raise awareness of this problem and of complaint handling mechanisms among her colleagues.

36.     Dr Duncan said she has now written over 90 letters arising out of this matter in dealing with government agencies, both federal, State and local, and to her local Member of Parliament.  Her concerns were exacerbated by a letter from the NSW Ombudsman dated 13 December 2002 in which he referred to the DAT Report, noting that it made a thorough assessment of the facility including a review of the relevant documents.  He stated:

While the review identified some minor issues, there were no unacceptable outcomes in terms of the running of the facility.

The Ombudsman commented about the SCS Record:

Overall the report contained no information that warranted further action.

37.     Dr Duncan stated (A2 paragraph 21):

I am at a loss to understand how serious injuries of the type portrayed graphically in the photographs produced in these proceedings, and the evidence given in these proceedings in respect thereof, could possibly be consistent with such findings.

Dr Duncan said her mother’s injuries were not minor issues:  she has “never seen anything like it in 25 years of dealing with retirement complexes”.

38.     Dr Duncan has also made a complaint to the NSW Health Care Complaints Commission which is still unresolved after more than 18 months.  Access to the DAT Report would assist the progress of that complaint.  Dr Duncan said she is unlikely to use the two documents for the purpose of litigation if access is granted.

39.     Dr Duncan described how she had approached the IRT for information on what investigations they had carried out concerning her mother’s condition.  She had a meeting with the IRT’s Regional Manager, Nieves Murray, in March 2002, at which Dr Duncan expressed her concerns.  Dr Duncan requested a meeting with the Board of Directors of the IRT which took place in April 2002, although before the IRT had concluded its investigation.  She was also given access to the IRT’s procedure manuals, for example on clinical care, lifting and complaints.

40.     However, Dr Duncan said she never received an unqualified offer to view her mother’s Progress Notes or other related documents.  She said a letter dated 24 May 2002 from the IRT Board implied her mother should have been in a higher standard of care and had refused the use of some aids.  Dr Duncan denied that her mother had ever refused the use of such aids.  It was only after the “abuse” started in November 2001, after staff began using the lifting device, that it became obvious that her mother needed nursing care.

41.     Dr Duncan acknowledged that her mother was taking Prednisone.  This could increase minor bruising but not of the kind suffered by her mother.  Dr Duncan also acknowledged that lifting is an occupational health and safety issue for staff but noted that she was able to assist her mother into her car on her own using a lifting belt. 

42.     Dr Duncan said on 6 December 2001, the supervisor of William Beach Gardens phoned her to say that while Mrs Reynolds was anxious and upset over use of the lifting device and wanted staff to lift her manually, Ms Martin was not prepared to allow this because of the state of Mrs Reynolds’ mobility.  Mrs Reynolds had spoken to Dr Duncan about the device a few days earlier and had complained that staff did not know how to use the machine and that she found its use frightening and painful.

43.     Dr Duncan denied that the severe bruising to her mother that Dr Duncan noticed on the weekend of 8/9 December 2001 pre-dated use of the lifting device.  Previously, Dr Duncan had only noticed an occasional bruise or skin tear.  The bruising she saw on the 8/9 December 2001 was to her mother’s arms, her left leg and genital area.  There were also skin tears on both arms and on the back of one of her legs requiring antibiotic treatment.  Photographs of the bruising on her mother’s arms and legs taken by Dr Duncan were annexed to her statement.

44.     Dr Duncan acknowledged that her mother had been given medication because of the effects of the device, and that this had made her less mobile.  Nevertheless, her mother had taken the medication – Valium – for years.  Dr Duncan said she had no doubt from her experience as a medical practitioner that:

the procedures adopted by William Beach Gardens in caring for my mother were inadequate, and … caused my mother great trauma and pain and almost certainly contributed to her death.

45.     Dr Duncan said she contacted the Aged Care Rights Service about her complaint.  They referred her to the Aged Care Complaints Resolution Scheme, where she spoke to Jill Pretty.  While Ms Pretty initially offered the use of a mediator, she later withdrew this offer after discussions with her Chief Executive Officer and the IRT.   Dr Duncan said she would only be prepared to go to mediation if the mediator was an expert in aged care.

Rex Leighton

46.     Rex Leighton is the Corporate Policy Manager of the IRT.  He provided a statement dated 31 May 2004 (IRT1).   Mr Leighton stated that the IRT has been a not for profit provider of aged care services and accommodation for about 35 years.  Currently, the IRT provides care to more than 1,000 frail elderly in 21 residential care facilities, to over 1,000 aged people in their own homes, and operates 30 retirement villages with over 1,000 elderly residents, competing with other aged care providers in the marketplace.  The IRT’s reputation for the delivery of quality care is vital.  It operates in an area from Hunters Hill to Narooma, employing about 900 staff. There is a limited supply of nursing staff and recruitment of good staff is difficult and competitive.  If staff recruited by the IRT are not appropriately trained, the IRT provides the necessary training.

47.     Mr Leighton said as a result of a complaint made by Dr Duncan, the Department instigated an investigation which led to the DAT Report.  The IRT cooperated willingly with this investigation but there was no site visit by departmental officers and the Department only sought limited telephone contact.  The IRT sent material to the Department including Mrs Reynolds’ Progress Notes and a departmental officer phoned the IRT’s Regional Manager, Nieves Murray, to ask some questions about the documentation.  Essentially, the DAT Report was based on a desk audit. 

48. Mr Leighton said the IRT first saw the DAT Report in January 2003 when informed by the Department that a request had been received for the release of the Report and the SCS Record under the FOI Act. The IRT had never seen nor been given the opportunity to comment on the DAT Report. The IRT considered it a poorly prepared document, of questionable quality. Mr Leighton said he did not consider the Report raised only “minor issues”. It listed a number of observations from the Progress Notes which if taken out of context and read in isolation might be considered alarming, reflecting badly on the IRT and causing it significant damage. The Report also included a number of notations that could have been satisfactorily answered if the IRT had been asked. No such opportunity was provided. Moreover, neither the manager of William Beach Gardens nor the staff responsible for caring for Mrs Reynolds were interviewed. The investigation process was flawed.

49.     Mr Leighton said the IRT’s principal concerns about the release of the documents are the reputation of the IRT and its staff and the interests of the IRT’s residents.   Release of the documents would make it more difficult to compete for residents, would impact negatively on staff morale and would affect the IRT’s capacity to attract and retain quality staff.  Release would also cause unnecessary and unreasonable fear and anxiety to residents and their families. Thus release would be harmful to the IRT’s business, commercial and financial interests.  The IRT believes the documents contain erroneous information on which it has not been given the opportunity to respond.   The IRT believes that if the documents are released to Dr Duncan, she will provide them to the media.  The IRT therefore opposed the Department releasing the documents to her.

50.     Nevertheless, the IRT has offered to participate in mediation with Dr Duncan on a number of occasions.  Mr Leighton noted that Jill Pretty of the Aged Care Complaints Resolution Scheme phoned to discuss providing a mediator for Dr Duncan’s complaints.  However, since the IRT’s Chief Executive Officer was the Chair of the Scheme and Mr Leighton was a Board member, it was felt that the Scheme had a potential conflict of interest and, therefore, declined to provide a mediator.

51.     Mr Leighton was asked about a letter from the IRT to Dr Duncan’s solicitors dated 14 April 2004 (IRT2), in which the IRT offered to withdraw its objections to the release of the DAT Report and SCS Record to Dr Duncan subject to limitations being imposed on to whom Dr Duncan might provide the documents.   Mr Leighton said the IRT was prepared to consider the release of the documents to other organisations, in addition to those listed, as stated in the penultimate paragraph of the IRT’s letter of 14 April 2004.  For example, the IRT would agree to the Australian Medical Association being included.  The IRT would still be prepared to participate in mediation with Dr Duncan, including with a mediator with aged care expertise as proposed by Dr Duncan, subject to the IRT’s agreement to that person.   In cross-examination, Mr Leighton confirmed that in the letter of 14 April 2004, the IRT sought not to have any reference to the IRT or William Beach Gardens included in the documents released to avoid the possibility of exposure in the media.  However, the IRT does not object to the inclusion of names for the purposes of communication with the relevant State and federal departments and agencies.

52.     Mr Leighton said the IRT is concerned to maintain its accreditation as an approved provider and responds properly to the Department’s requests.  The IRT has always been open with the Department.  Even if the documents are released, the IRT will continue to observe the rules and comply with its statutory obligations.  However, it might be more circumspect in terms of the detail provided.

Kevin Macdonald

53.     Kevin Macdonald, the Manager of the Quality Outcomes Section in the Aged Care and Planning Branch of the Department, provided a statement dated 5 February 2004 (R4).  Mr Macdonald is a registered nurse with both clinical and management experience including in residential aged care settings.  In his current position, Mr Macdonald is responsible for management of the Detailed Analysis Team and the Aged Care Complaints Resolution Scheme in the Department’s NSW Office.

54.     Mr Macdonald stated that the role of the Detailed Analysis Team is to act upon information suggesting non-compliance by an approved provider, to manage follow up action where an approved provider is found to be non-compliant, and to manage the relationship between the Department and the Aged Care Standards and Accreditation Agency. 

55.     A complaint received by the Aged Care Complaints Resolution Scheme from Dr Duncan in May 2002 was referred to the Detailed Analysis Team on 28 May 2002 because the complaint identified possible serious and systemic issues.  Following the referral, a departmental officer investigated the matter and prepared a DAT Report including relevant findings, dated 18 June 2002.  This Report is an internal departmental document in a standardised format which includes any recommendations made by the officer.  The Department provided the Report to the Aged Care Standards and Accreditation Agency to assist in the performance of its function in monitoring compliance with the Accreditation Standards.

56.     Mr Macdonald stated that the SCS Record is a record of the Aged Care Standards and Accreditation Agency’s monitoring of compliance by an approved provider with the Accreditation Standards.  The Record includes the Agency’s findings in relation to the approved provider’s activities in maintaining compliance.  The Record is provided to the approved provider to indicate its compliance with Accreditation Standards and to assist the provider in its continuous improvement process.  The Record is not available to the public.  The Agency fosters a cooperative relationship with approved providers based on trust.   The free flow of information from approved providers to the Department is important.  Commonly, approved providers go beyond their statutory obligations with regard to compliance.

57.     In cross-examination, Mr Macdonald said that the level of cooperation of approved providers is a material consideration in relation to accreditation.  Even if the documents are released to Dr Duncan, he assumes the IRT will continue to cooperate with the Agency.

58.     Mr Macdonald acknowledged that Dr Duncan’s complaints could not be investigated properly by a desk audit only.  The DAT Report, which is an internal document, was referred to the Agency to enable it to conduct an investigation in performing its function of checking compliance.  This was the only action warranted by the Report.  Mr Macdonald acknowledged that the DAT Report was finalised without giving the IRT an opportunity to comment on it.  About half to two thirds of all DAT Reports are referred to the Agency even if the matters raised are minor.  In the case of William Beach Gardens, the Agency made one visit following the referral of the DAT Report.

Jurisdictional Issues

59. On the final day of the hearing when the parties put their submissions to the Tribunal, Dr Bishop (for Dr Duncan) questioned whether the IRT’s application to the Tribunal was valid. He suggested that an application for review could only be made under s 59(1) in respect of a document that is not an exempt document. He contended that because the DAT Report was found to be an exempt document, the IRT was not entitled to seek a review by the Tribunal. The Tribunal decided to allow the parties to make further written submissions about this matter but it was also agreed that, in any event, the IRT could be joined as a party to Dr Duncan’s application pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975.  This provides that where an application has been made to the Tribunal for a review of a decision, “any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceedings”, and the Tribunal has a discretion to join that person as a party to the proceedings.

60.     The Tribunal has taken into account the parties’ written submissions on whether the IRT is entitled to apply to the Tribunal for a review and concludes that the IRT is entitled to make such an application.  The Tribunal’s reasoning is as follows.  There are three relevant decisions:

(1)31 January 2003 – the original decision by Paul Tarranto, the Manager of the Aged Care and Planning Branch that both the DAT Report and the SCS Record are “exempt” documents pursuant to both ss 38 and 43 of the FOI Act.

(2)8 April 2003 – the first internal review decision made by Sue Kerr, State Manager, at the request of Dr Duncan, as follows:

(a)to set aside the original decision not to grant access to the DAT Report under ss 38 and 43(1)(c) and substitute a decision to release the Report with some exempt material deleted. Ms Kerr refers to s 22 as permitting the making of a copy of the document with such deletions that the copy would not be an exempt document.

(b)to vary the original decision not to grant access to the SCS Record by including a further provision justifying treatment of the document as an exempt document, namely s 40(1)(a) and (b).

It was in respect of this decision of 8 April 2003 that Dr Duncan sought a review by the Tribunal pursuant to s 55(1).

(3)23 May 2003 – the second internal review decision made by Jane Bailey, Assistant Secretary, Quality Outcomes Branch, at the request of the IRT under s 54(1D), the IRT having been consulted by the Department under s 27 because the DAT Report contained information concerning its business, commercial or financial affairs. Ms Bailey affirmed Ms Kerr’s decision of 8 April 2003, relying on ss 38 and 43(1)(c).

61. The submission made by Dr Bishop is that because the DAT Report was found to be an exempt document and applications to the Tribunal can only be made under s 59(1) in respect of documents which are not exempt documents under s 43, the IRT cannot apply to the Tribunal for a review.

62. However, in the Tribunal’s view this is not correct. While s 43(1)(c) categorises the DAT Report as an exempt document, s 22(1)(b) provides for a copy of such a document to be made with deletions such that it “(i) would not be an exempt document” and for the agency or Minister to grant access to such a copy. Thus, it would appear that a copy of the document with relevant deletions is not to be regarded as an exempt document. An application could therefore be made in respect of such an edited document and s 59(1) would apply.

63. The other basis on which the DAT Report was treated as being exempt was s 38. This provides that a document is an exempt document if its disclosure is prohibited under a provision of an enactment and, relevantly in this case, that provision is specified in Schedule 3. Schedule 3 includes reference to s 86-2(1) of the Aged Care Act which makes it an offence to disclose “protected information”, defined in s 86-1 as including information relating to the affairs of an approved provider. However, s 86-3(3) permits disclosure of protected information if the Secretary certifies in writing “that it is necessary in the public interest to do so in a particular case”.

64. The Tribunal interprets this as meaning that if disclosure of protected information is necessary in the public interest, then such disclosure is not prohibited and to that extent the protected information is not an exempt document. In any event, in this instance, the document with deletions was never exempt under s 43 – the exemption was under s 38. Thus, because the document is not an exempt document under s 43, application can be made to the Tribunal under s 59(1).

65. The Tribunal acknowledges that it is possible to come to a contrary view. However, a purposive approach to the interpretation of such provisions that are not readily accessible should, in the Tribunal’s opinion, lead to a conclusion that the IRT as an approved provider whose interests are affected by the relevant decision should be entitled to apply to the Tribunal for a review. As stated above, the same end can be achieved via s 30(1A) of the AAT Act. On the final day of the hearing, the IRT made an application in writing to be made a party to the proceedings brought by Dr Duncan. To the extent that there is any jurisdictional difficulty in the IRT’s application, the Tribunal considers that the IRT should be joined as a party to Dr Duncan’s proceedings. Both Dr Duncan and the Department agree, and the Tribunal finds, that the IRT’s interests are clearly affected by the decision under review in the proceedings instituted by Dr Duncan.

Substantive Issues

66. Turning then to the substantive issues, the Tribunal must determine (1) whether the DAT Report should be released to Dr Duncan either in full or with the deletions made by Ms Kerr and (2) whether the SCS Record should be released to Dr Duncan. This turns on whether the DAT Report and SCS Record are “exempt documents” pursuant to the provisions of the FOI Act and Aged Care Act.

67. There are three bases on which it has been claimed that the DAT Report is an “exempt document”: under ss 36(1), 38(1) and 43(1). There are also three bases on which it is claimed that the SCS Record is an “exempt document”: ss 38(1), 40 and 43(1). Each of these four provisions and their application is considered in turn.

Section 36(1)

68. Section 36(1) provides an exemption in respect of internal working documents of a Commonwealth department or agency where disclosure would be contrary to the public interest. The IRT submitted that the DAT Report was an internal working document, that its release would be contrary to the public interest and therefore it is an exempt document. This provision was not relied on by the Department. Dr Bishop noted that the Report was prepared by the Department. Mr Macdonald gave evidence that the Report was provided to the Aged Care Standards and Accreditation Agency to enable it to assess whether the IRT, as an approved provider, was complying with the relevant accreditation standards in its operation of William Beach Gardens. The DAT Report was not a document used by the Department to make a decision on whether the approved provider was complying with its responsibilities under the Aged Care Act (R4 paragraph 17).

69.     The Tribunal considers that disclosure of the Report would not disclose matters in the nature of or relating to an opinion, advice or recommendation or consultation or deliberation.  It is more in the nature of a referral to bring the matter to the attention of the Agency who might then investigate.  The other provisions under which exemption is claimed are more specifically relevant.

Section 38(1)

70. Both the first and second internal review decisions found the DAT Report and the SCS Record to be “exempt documents” pursuant to s 38(1). The basis for this is Schedule 3 which includes reference to s 86-2(1) of the Aged Care Act, which creates an offence for the recording of, disclosure or use of “protected information” for purposes other than those set out in ss 86-2(2) and 86-3. “Protected information” is defined in s 86-1 to include “personal information” and information that “relates to the affairs of an approved provider”. Thus a document containing information the disclosure of which is prohibited under s 86-2(1), is an exempt document under s 38(1) of the FOI Act. The Tribunal notes that the IRT is an approved provider as defined in the Aged Care Act and thus any information relating to its affairs in the documents is prima facie “protected information” and exempt from disclosure.

71. However, regard must be had to s 86-3 which provides that the Secretary may disclose protected information, having certified in writing “that it is necessary in the public interest to do so in a particular case”, to a person whom the Secretary considers is “expressly or implied authorised by the person to whom the information relates to obtain it”. In Dr Duncan’s case, it was not in dispute that she was impliedly authorised to obtain the information: she held a power of attorney from her mother and was her executor. The principal issue, therefore, is whether it is necessary in the public interest to disclose the information. The Respondent pointed to the difficulty that arises in relation to the DAT Report which contains both information relating to the affairs of the IRT and information personal to Mrs Reynolds. However, the Respondent submitted that the Tribunal should disclose such personal information as is contained in the DAT Report relating to Mrs Reynolds to Dr Duncan.

72. The Respondent and the IRT submitted that the SCS Record “largely contains information exclusively relating to the affairs of IRT and is thus ‘protected information’ under s 86-2(1)” (Respondent’s Statement of Facts and Contentions paragraph 20), and is exempt from release in full under s 38(1)(b)(ii) of the FOI Act.

73.     Dr Bishop submitted that there is a significant public interest in ensuring that the interests of the elderly in retirement complexes are adequately protected.  Dr Duncan is seeking to advance that public interest.  She is concerned that the procedures adopted in caring for her mother were inadequate and caused her trauma and pain and contributed to her death.  Dr Duncan’s concerns were exacerbated by a letter from the NSW Ombudsman dated 13 December 2002 which refers to the DAT Report identifying “some minor issues” and that “there were no unacceptable outcomes in terms of the running of the facility” (A2 paragraph  19).  Dr Duncan is unable to reconcile such comments with the serious bruising caused to her mother and seeks access to the DAT Report and SCS Record in order to apply her own professional judgment to the issues and, if appropriate, take further advice.

74.     Dr Bishop submitted that it is in the public interest that the DAT Report and the SCS Record be disclosed in full.  However, he noted Mr Leighton’s evidence that the DAT Report was prepared without a site visit.  Mr Leighton said that although there was some limited telephone contact in relation to the material supplied by the IRT to the Department, neither the Manager of William Beach Gardens nor the staff responsible for caring for Mrs Reynolds were interviewed.  Essentially, only a desk audit was undertaken. 

75.     Mr Canosa (for the IRT) emphasised that the DAT Report contains a mix of information relating to the affairs of the IRT and personal information of Mrs Reynolds and others.  The Tribunal should not release any information that relates to the affairs of the IRT.  Mr Canosa contended that since Mrs Reynolds is long deceased, disclosure of the DAT Report is not necessary to prevent a lesser or serious risk to the safety, health or well being of the recipient (s 86-3), and the Department’s investigation found there was no such risk to other care recipients.

76. In the Tribunal’s opinion, the DAT Report with deletions should be disclosed to Dr Duncan. The Tribunal had regard to the object of the FOI Act stated in s 3(1) to allow access to information in the possession of the Commonwealth Government. The DAT Report contains information relating to the care of Mrs Reynolds at William Beach Gardens. In the Tribunal’s opinion, it is in the public interest that such information be disclosed to Dr Duncan, as permitted by s 86-3 of the Aged Care Act. This will assist her in assessing the care afforded to her mother and more generally in forming a professional judgment as a doctor as to the care afforded to the elderly in such retirement complexes.

77.     However, the Tribunal cautions that care must be taken in the weight to be accorded to the DAT Report given that it was based on what was essentially a desk audit, without a site visit being made, and without the IRT being given the opportunity to respond, as Mr Macdonald acknowledged.  The Tribunal recognises the IRT’s concerns, expressed by Mr Leighton, to which Dr Duncan should have regard in forming any judgment relying on the DAT Report.

78.     With regard to the SCS Record, in the Tribunal’s opinion it is not in the public interest that it be disclosed to Dr Duncan since it contains information of a general nature relating to the operation of William Beach Gardens and makes no specific reference to Mrs Reynolds’ case.

Section 40

79. Section 40(1) provides relevantly that a document is exempt if its disclosure could reasonably be expected to prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency, or if its disclosure would prejudice the attainment of the objects of particular tests, examinations or audits conducted or to be conducted by an agency. However, s 40(2) states the section does not apply in respect of matters in the document the disclosure of which under the FOI Act would, on balance, be in the public interest.

80.     The Respondent submitted that the SCS Record is a document sufficiently related to “tests, examinations or audits” conducted by the Respondent such that release of the document would prejudice the effectiveness of the Department’s procedures and the attainment of their objective. Mr Macdonald said that a relationship of trust involving candid disclosure exists between service providers and the Aged Care Standards and Accreditation Agency and the flow of information to the Department and Agency would be undermined if the information could be used against service providers for other purposes, for example litigation.

81.     Dr Bishop submitted that it is extremely unlikely that the IRT would not cooperate with the Department and indeed there is no evidence to support a contention that the IRT would not do so.  Mr Macdonald acknowledged that even if the documents are released to Dr Duncan, he assumes the IRT will continue to cooperate with the Agency.   Mr Leighton’s evidence was that the IRT would continue to fulfil its statutory and non-statutory obligations.  The Tribunal notes, however, that Mr Leighton said the IRT might be circumspect in terms of the detail provided.

82.     Mr Macdonald gave evidence that the SCS Record is a document prepared (by the Agency) in the course of its function of monitoring compliance by an approved provider with the Accreditation Standards.  The Tribunal accepts that release of the SCS Record could prejudice the effectiveness of such audit functions of the Agency and the attainment of its object of maintaining compliance with Accreditation Standards (s 40(1)(a) and (b)).  The issue therefore is whether, on balance, the disclosure of such a document would, nevertheless, be in the public interest.  In the Tribunal’s opinion, disclosure would not be in the public interest.  The document is the product of a site visit by Agency staff.  While there is no suggestion that the IRT would not comply with its obligations, the effectiveness of the visit in terms of ensuring/promoting compliance could be compromised if the parties were constrained because the resultant report was to become a public document.  Effective performance by the Agency of its functions should be sufficient to secure the public interest.

Section 43(1)

83. Section 43(1) provides relevantly that a document is exempt if it would disclose “information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed”, or information “concerning the business, commercial or financial affairs of an organisation or undertaking, being information” the disclosure of which would or could reasonably be expected to have an adverse effect on those affairs or prejudice the future supply of information to the Commonwealth or an agency.

84. However, s 22(1) provides for the deletion of exempt matter from the copy of an exempt document if, with such deletions, that copy would not be an exempt document.

85.     Mr Peek said that it is apparent on the face of the documents that they contain information relating to the affairs of the IRT.  The Respondent relied on the IRT’s assertion as to the consequences of the release of this information.  Mr Canosa contended that the release of either document could have an adverse effect on the IRT’s business because it could diminish the number of residents entering care or possibly see current residents leaving the facility.  Moreover, it would make the recruitment and retention of staff more difficult in a competitive market and necessitate the IRT launching a media campaign to correct any misimpressions published in the media.  Even the DAT Report with deletions could potentially have this effect because in its edited form the information is not in context and is at times confusing and misleading.  The IRT anticipates that Dr Duncan will release the reports to the media, thereby having a negative effect on the IRT’s reputation and good standing in the community and on its business and financial affairs.

86.     Dr Bishop contended that disclosure would have a minimal effect on the IRT.  More important is the public interest that the severe bruising suffered by Mrs Reynolds should be investigated.   To this end, both the DAT Report and SCS Record should be disclosed to Dr Duncan.

87. The Tribunal’s decision, stated above, is that the DAT Report with deletions should be disclosed to Dr Duncan. With deletions, the Report does not, in the Tribunal’s opinion, contain commercially sensitive information of the kind referred to in s 43(1), other than information personal to the care of Mrs Reynolds the disclosure of which is in the public interest and permitted pursuant to s 38(1) of the FOI Act and s 86-2(1) of the Aged Care Act. The Tribunal reiterates its earlier caution that care should be taken in according weight to the DAT Report because, essentially, it was a desk audit without the IRT being given the opportunity to respond.

88.     With regard to the SCS Record, the Tribunal’s decision is that this should not be disclosed to Dr Duncan.  The Record contains information about the IRT’s operations of William Beach Gardens which is of a commercially sensitive nature.

Conclusion

89.     The Tribunal’s decision is, therefore, to affirm the two decisions under review:  that is the first internal decision made on 8 April 2003 in respect of which Dr Duncan lodged an application for review with the Tribunal; and the second internal review decision made on 23 May 2003 in respect of which the IRT lodged an application for review with the Tribunal.

90. Since neither Dr Duncan nor the IRT has been successful or partially successful in their applications, the Tribunal makes no recommendation as to the payment of costs by the Commonwealth pursuant to s 6(1) of the FOI Act.

I certify that the 90 preceding paragraph are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate

Date/s of Hearing     1 and 2 March 2004 and 31 May 2004 and 1 June 2004

Date of Decision  16 July 2004
Representative for the First Applicant                 Dr J Bishop, Counsel
Representative for the Second Applicant             Mr N Canosa, Counsel
Representative for the Respondent  Mr G Peek, Solicitor