Neviskia Pty Ltd, Saitta Pty Ltd and Department of Health and Aged Care
[2000] AATA 1152
•22 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1152
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. V00/1063
GENERAL ADMINISTRATIVE DIVISION ) V00/1067 V00/1068 V00/1095 V00/1274 V00/1472
Re NEVISKIA PTY LTD SAITTA PTY LTD
Applicants
And SECRETARY, DEPARTMENT OF HEALTH AND AGED CARE
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Mr I.L.G. Campbell, MC, Member Dr P.D. Fricker, Member
Date22 December 2000
PlaceMelbourne
Decision 1. In Neviskia Pty Ltd and Secretary, Department of Health and Aged Care, V00/1063, the Tribunal sets aside the decision dated 24 March 2000 and in substitution decides: (i) it is not satisfied that because of non-compliance there was "an immediate and severe risk to the safety, health or well-being of care recipients" at Kenilworth; and (ii) accordingly it is not appropriate to impose sanctions under s. 67-1(2) of the Aged Care Act 1997 ("the Act"). 2. In Saitta Pty Ltd and Secretary, Department of Health and Aged Care V00/1067, the Tribunal sets aside the decision dated 16 August 2000 imposing sanctions on Belvedere Nursing Home and in substitution decides: (i) the applicant did not fail to comply with its responsibilities under s. 63-1 of the Act; and (ii) accordingly it is not appropriate to impose sanctions. 3. In Saitta Pty Ltd and Secretary, Department of Health and Aged Care (V00/1068), the Tribunal sets aside the decision dated 4 August 2000 refusing certification and remits the matter to the Secretary with a direction that Belvedere Nursing Home be assessed as soon as possible by a person or body authorised by the Secretary under s. 38-4 of the Act to assess the standard of residential care for certification purposes. 4. In Neviskia Pty Ltd and Secretary, Department of Health and Aged Care, V00/1095, the Tribunal varies the decision made 24 May 2000 so that the sanctions are imposed only for the period from 31 January to 2 March 2000. 5. In Neviskia Pty Ltd and Secretary, Department of Health and Aged Care, V00/1274, the Tribunal sets aside the decision dated 20 September 2000 and in substitution decides: (i) it is not satisfied that because of non-compliance there was "an immediate and severe risk to the safety, health or well-being of care recipients" at Kenilworth; and (ii) accordingly it is not appropriate to impose sanctions under s. 67-1(2) of the Act. 6. The Tribunal adjourns Neviskia Pty Ltd and Secretary, Department of Health and Aged Care, V00/1472 to be listed for further hearing in 2001. 7. The Tribunal reserves liberty to the parties to apply if clarification is required for implementation of the decisions made in these matters.
..……(Sgd. J.R. Dwyer).....
Senior Member
CATCHWORDS
HEALTH AND AGED CARE - nursing homes - 6 applications for review - decisions concerning certification and imposition of sanctions - whether Agency authorised to do assessments for certification - whether representatives were impeded in their access to and ability to question staff on assessment for certification - whether applicant failed to comply with section 1.12 of the Accountability Principles - whether applicant withdrew consent or refused to consent to a review audit to monitor compliance under the residential care standards - interpretation of Accountability Principle 1.8 - use of footnote - role of Principle 1.8(6) - where representative believes, on reasonable grounds, that there is a serious risk to the safety, health or well-being of a person - imposition of sanctions without prior notice under s. 67-1(2) of the Act where Secretary is satisfied that there is an immediate and severe risk to the safety, health or well-being of care recipients - decisions varied and set aside
STATUTORY INTERPRETATION – interpretation of delegated legislation - interpretation of Accountability Principle 1.8 - whether Note can be used as an aid when ambiguity not present in the Principles
WORDS AND PHRASES - immediate and severe risk
Aged Care Act 1997 ss. 6, 38-3, 38-4, 42, 42-5, 54-1, 63-1(1)(l), 63-1(1)(j), 66-1(c)(i), 66-1(f), 67-1(2), 80-1, 85(5),
Acts Interpretation Act 1901 s. 13
Road Safety Act 1986 (Vic.) s. 49(1)
Accountability Principles 1998
Accreditation Grant Principles 1998
Certification Principles 1997
Quality of Care Principles 1997
Sanctions Principles 1997
Saitta Pty Ltd v Commonwealth [2000] FCA 1546
Bradley v Commonwealth (1973) 1 ALR 241
Wacando v Commonwealth (1981) 37 ALR 317
REASONS FOR DECISION
22 December 2000 Mrs Joan Dwyer, Senior Member Mr I.L.G. Campbell, MC, Member Dr P.D. Fricker, Member
Background And History Of Applications
It is customary to set out in the first paragraph of a decision of the Tribunal the decision under review. In this matter even that is complex because of the multitude of decisions adverse to the applicant companies which have been made and are now the subject of review. The applicant company Neviskia Pty Ltd is the proprietor of a nursing home known as Kenilworth. The applicant Saitta Pty Ltd is the proprietor of a nursing home known as Belvedere. Mr Menere is a director of each of those companies and has the responsibility for the management of the businesses.
The Tribunal has to acknowledge that the history of these matters shows that administrative review of reviewable decisions is not always practical. It is only by curtailing the list of potential relevant witnesses and the areas of evidence to be covered that it has been possible to have a hearing, as to some of the matters covered in the review applications before the Tribunal. It was necessary to adopt this course so that decisions could be delivered in respect of both applicants in a time frame such as to allow the applicants to seek accreditation under the scheme of accreditation brought in by the Aged Care Act 1997 ("the Act"). Subject to s. 42-5 the Act requires that all nursing homes be accredited by 1 January 2001.
The problems have been compounded by the number of applications for review lodged with the Tribunal. They are:
Neviskia Pty Ltd and Secretary, Department of Health and Aged Care V00/1063
This application was lodged on 5 September 2000. It seeks review of a decision of a delegate of the Secretary of the Department of Health and Aged Care ("the Secretary") made on 24 March 2000 (Folder 1 (T1)) and confirmed by another delegate of the Secretary, pursuant to s. 85(5) of the Act, on 25 July 2000 (T4). The decision under review was a decision to impose sanctions without previous notice on Neviskia Pty Ltd in respect of "an immediate and severe risk to the safety, health or well-being of the care recipients" at Kenilworth. (s. 67-1(2)).
In the Decision to Impose Sanctions, the delegate described the nature of the non-compliance as follows (p. 3):
Management are not working to provide a safe and comfortable environment consistent with residents' care needs. This is because there is no detailed and regular evaluation and review regarding the use of restraint, whether physical or chemical, including the consideration of alternatives to the use of restraints. This leads to the use of inappropriate restraint and restraint beyond that necessary for residents' care needs.
The term "restraint" in this passage refers mainly to the use of bedrails. The delegate stated that the consequences of the inappropriate use of restraints are extremely serious and included risk of serious injury, including strangulation.
The sanctions imposed were to:
· restrict, for the period of 9 months, your approval under Part 2.1 of the Act as a provider of aged care services to care recipients to whom you are providing care at the Kenilworth Nursing Home at the time this sanction is imposed, in accordance with s. 66-1(c)(i) of the Act.
· prohibit, for the period of 12 months, the further allocation of places under Part 2.2 of the Act, in accordance with s 66-1(f) of the Act.
Saitta Pty Ltd and Secretary, Department of Health and Aged Care V00/1067
This application was lodged on 7 September 2000. It seeks review of a decision of a delegate of the Secretary made on 16 August 2000 (Folder 2 (T6)) and confirmed on 4 September 2000 (T7), imposing sanctions on Saitta Pty Ltd in respect of non compliance with the Act at Belvedere. The non compliance relied on was alleged to be:
non-compliance with the applicant's responsibility under section 63-1(1) "to allow people acting for accreditation bodies to have such access to the service as is specified in the Accountability Principles". It was alleged that the applicant had failed to comply with section 1.12 of the Accountability Principles.
In making their findings as to non-compliance the Delegates relied upon allegations made by Agency assessors in respect of a review audit conducted by them at the nursing home on 22 and 23 March 2000 which were made in statements attached to the Agency Review Audit Report [T15; 184-197].
The delegate claimed that throughout the review audit of 22 and 23 March 2000 representatives of The Aged Care Standards and Accreditation Agency Ltd ("the Agency") were impeded in their access to and ability to question the staff at Belvedere.
The sanctions imposed were as follows:
(i)A restriction for the period of 12 months of the applicant's approval under Part 2.1 of the ACA as a provider of aged care services to care recipients to whom it is providing care at the time the sanction is imposed.
(ii)A prohibition for the period of 12 months of the further allocation of places under Part 2.2 of the ACA, in reliance upon the provisions of section 66-1(f) of the ACA.
Saitta Pty Ltd and Secretary, Department of Health and Aged Care V00/1068
This application was lodged on 7 September 2000. It seeks review of a refusal to certify Belvedere as required by Part 2.6, Division 37 of the Aged Care Act 1997. The original decision was made on 4 August 2000 (Folder 2 (T5)) and confirmed on 4 September 2000 (T8). In refusing the application for certification of Belvedere the delegate explained that under s. 38-3 of the Act the Secretary must have regard to:
(a)the standards of the buildings and equipment that are being used by the Residential Care Service in providing residential care;
(b)the standard of the residential care being provided by the Residential Care Service;
(c)if the applicant has been a provider of aged care - its conduct as such a provider, and its compliance with its responsibilities as such a provider and its obligations arising from the receipt of any payments from the Commonwealth for providing aged care; and
(d) any other matter specified in the Certification Principles.
In reference to those standards the delegate concluded:
· The standard of buildings and equipment that are being used by your service in providing residential care to be adequate, by virtue of the assessment report of Fisher Stewart dated 3 July 2000.
· I am not able to reach a conclusive determination regarding the current standard of residential care provided at your service, because the last completed review audit is not current and the more recent material is incomplete. However, while there are indications that the standard of residential care is adequate, there remain a number of matters that require addressing.
· You have breached your responsibilities under Part 4.1 of the Act by not complying with the Residential Care Standards on a number of occasions. Sanctions have been imposed on you on 3 occasions being 2 May 2000, 9 February 1999, and 18 December 1998.
· Apart from not complying with your responsibilities under Part 4.1, through the actions of your representative you have now also not complied with your responsibilities under Part 4.3 of the Act, by not allowing the Agency assessors to have such access as is specified in the Accountability Principles.
The delegate decided that Belvedere should not be certified.
Neviskia Pty Ltd and Secretary, Department of Health and Aged Care V00/1095
This application was lodged on 12 September 2000. It seeks review of a decision made on 24 May 2000 (Folder 1 (T3)) and confirmed on 11 September 2000 (T5). That decision found that the Agency's inability to access and thus assess the quality of care, and lack of accountability threatened the health, welfare and interests of care recipients at Kenilworth (T3 Vol 1).
The delegate gave the following reasons for imposing the sanctions:
I have decided to impose sanctions because I am satisfied that you have not complied with your responsibilities under Part 4.3 of the Act. In particular, you have not complied with your responsibility under s 63-1(1) of the Act by not allowing people acting for the accreditation body (the representatives of the Aged Care Standards and Accreditation Agency) to have such access to the premises as is specified in the Accountability Principles.
The nature of the non-compliance relied upon was withdrawing consent on 16 December 1999 for the review audit of 15 and 16 December 1999, and refusing consent on 31 January 2000 for the review audit notified for 31 January 2000 and 1 February 2000.
The sanctions imposed were as follows:
1. To restrict for the period of 12 months your approval under Part 2.1 of the Act as a provider of aged care services to care recipients to whom you are providing care at the time this sanction is imposed, in accordance with s 66-1(c)(i) of the Act.
2. To prohibit for the period of 12 months, the further allocation of places under Part 2.2 of the Act, in accordance with s 66-1(f) of the Act.
Neviskia Pty Ltd and Minister of Health and Aged Care V00/1274
This application was lodged on 24 October 2000. It seeks review of a decision of a delegate of the Secretary made on 20 September 2000 (Folder 1 (T6)) which was confirmed on 13 October 2000. That decision found that under s 67-1(2) of the Act there was an immediate and severe risk to the safety, health or well being of the care recipients at Kenilworth. The delegate gave the following reasons for imposing the sanctions:
· there are gross deficiencies in the evaluation and review of the use of restraint, whether physical or chemical, and little or no consideration of alternatives. This results in inappropriate and unnecessary restraint being used;
· there is an inherent risk of accidents in the use of restraint and this risk increases when restraint is applied unnecessarily and inappropriately, without adequate review. The consequences of such accidents can be extremely severe;
· accidents resulting from the use of restraint can occur at any time;
· the residents are at risk of possible strangulation or serious injuries while attempting to get out of bed while bedrails are up, by either becoming wedged between the bedrails, or falling from a greater height than if the bedrails are down.
In relation to fire safety issues:
· the lack of regular staff training in the use of fire equipment may lead to inadequate management in the event of a fire;
· the lack of fire evacuation training means that staff have not had practical experience in evacuating residents from the building;
· in the event of a fire or emergency, the lack of staff training coupled with the fact that the front and rear exit doors have a two lock mechanism installed, may hinder the quick evacuation of residents, particularly frail residents with mobility problems, from the building.
The sanction imposed was to revoke the allocation of 5 places allocated under Part 2.2 of the Act, in accordance with s 66-1(d) of the Act.
Thus five applications for review were lodged, each in response to a decision adverse to one of the applicants, on 5 September 2000, 7 September 2000, 7 September 2000, 12 September 2000 and 24 October 2000 respectively. The solicitors for the applicants on 5 September 2000 applied for a stay of the decision made on 24 March 2000 pending resolution of the issues raised in the application for review. An interim stay order was made ex parte by Senior Member Handley on 21 September 2000. The stay application was listed for further hearing on 29 September 2000.
The stay orders were served on the respondent on 22 September 2000. By letter dated 22 September 2000 Clayton Utz, solicitors for the respondent, objected to the ex parte stay orders and sought to have them set aside. Senior Member Handley on 3 October vacated the stay orders and made orders for expedited hearing of Neviskia matters V00/1063 and V00/1095 and of Saitta matters V00/1067 and V00/1068. The reason for the stay applications as set out in the affidavits of Mr Menere was that the nursing homes had to be accredited under the Act by 1 January 2001 in order to qualify for Commonwealth funding and that it was believed by him, on the basis of a circular he had received from the Department of Aged Care and Health ("the Department"), that if the decisions under review were still standing the nursing homes would not be accredited. The affidavits also pointed out the loss of income expected to be suffered by the nursing homes due to the sanctions.
On 3 October 2000 Senior Member Handley directed that the matters be given an expedited hearing for five days from 20 to 24 November inclusive. On 13 October Senior Member Handley further directed that the respondent lodge affidavit evidence and Statement of Facts and Contentions on or before 30 October 2000 and the applicant lodge affidavit evidence and Statement of Facts and Contentions on or before 13 November 2000.
The HearingThis Tribunal commenced hearing the matter in accordance with the direction that there be an expedited hearing on 20 November 2000. Mr B. Monotti of Counsel appeared for the applicant, Ms F. Hampel QC of Counsel with Mr D. Murphy of Counsel appeared for the respondent. The Tribunal had before it five folders of documents ("the T documents") lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 being as follows:
Folder 1 Neviskia T1 to T24 pp. 1 to 424
Folder 2 Saitta T1 to T19 pp. 1 to 214
Folder 3 Neviskia TS1 to TS9 pp. 1 to 80
Folder 4 Saitta TS10 to TS18 pp. 81 to 273
Folder 5 Neviskia TS19 to TS28 pp. 1 to 106
The Tribunal would have been assisted if the relevant documents had been put before it in chronological order in respect of each of the applicants. The Tribunal also had a folder containing statements of case and affidavits in support of the applicants' cases and statements of facts and contentions and a folder of affidavits lodged by the respondent. The Tribunal also received in evidence the exhibits tendered during the hearing.
In spite of the Tribunal raising concerns as to how the matter could be disposed of in five days, and stating that it expected to start hearing evidence the first day, Ms Hampel spent one whole day in opening the respondent's case. By agreement between the parties it was to be presented first. The Tribunal then heard evidence from two of the decision makers, who were produced at the request of the applicants for cross examination. By this time the hearing was into the third day. It was apparent that that the matters could not be fully heard in the allotted time. Five further days were made available by the Tribunal on 7 and 8 December and 13, 14 and 15 December.
During the first day of hearing the Tribunal was informed that a further decision adverse to Neviskia had been made on 3 November 2000. That decision was in the form of a Notice of Severe Risk under s. 67-1(2) of the Act. That new decision made on 3 November 2000 in effect rendered pointless the expedited hearing in respect of Neviskia, because it was not itself reviewable in the hearing before the Tribunal as it had not yet been confirmed. So long as there was a current severe risk notice in respect of Kenilworth, that nursing home would not realistically be able to be accredited as required by s. 42 of the Act by 1 January 2001. If it were not so accredited it would not be eligible for residential care subsidy under Division 42 of the Act. Ms Hampel, at a latter stage in proceedings stated that a current immediate and severe risk report may not preclude a deeming of accreditation under s 42-5 of the Act so long as at the time of deeming there was no "immediate and severe risk".
The Tribunal during the hearing expressed concern a number of times about the fact that the further decision of 3 November 2000 had been made while the expedited hearing was awaited, when there was already a reviewable decision as to severe risk in respect of Kenilworth. Ms Hampel suggested that the making of that decision was required by the respondent because of its responsibility to residents of Kenilworth . She said that the respondent could not stand by and allow residents to be placed in a position of severe risk.
A consideration of the severe risk report of 23 October (on which the decision of 3 November was based) indicates that the matters set out in that report as constituting severe risk are substantially similar to the matters set out in the earlier reports on which the earlier decisions are based. We are by no means convinced that any further action was required as at 3 November 2000 to protect residents of Kenilworth. We consider that the hearing of the applications for review already listed for the week 20-24 November 2000 would have provided adequate consideration of the matters relating to severe risk in contention between the parties. The making of a further decision or report does not in fact provide any additional protection to the residents although it does lead to further sanctions and pressure for the provider.
On the fifth day of the hearing, Friday 24 November, the applicant's expert witness Ms Sharp was interposed. She is well qualified to give expert evidence in a matter concerning aged care nursing. Her curriculum vitae, Exhibit 1 to her affidavit sets out her academic qualifications as well as nursing experience in aged care and also her experience as a nurse consultant to many nursing homes. From January 2000 she has been working in New South Wales as an external contractor for the Agency. A whole day was spent cross examining Ms Sharp mainly about theoretical definitions of restraint and her knowledge of articles dealing with issues as to whether or not bedrails constitute restraint when used for the safety of elderly, confused and frail patients. Her cross examination had not fully concluded by the afternoon of the fifth day of hearing. She returned to finish her evidence on 7 December.
The Neviskia severe risk decision of 3 November was confirmed on 5 December 2000 and an application for review of that decision, V00/1472, was lodged with the Tribunal on 7 December 2000. Ms Hampel, while on the one hand suggesting that the respondent had been extremely co-operative in making the confirmation decision in a short time frame, on the other hand objected to the new application being consolidated with the other matters so that it could be dealt with in the same expedited hearing. The Tribunal ruled that it would consolidate the new application V00/1472, but in fact the time frame imposed by the legislation has not allowed us to make a decision in respect of that matter. It will have to be adjourned to a further hearing date.
The history set out in the preceding paragraphs is not anywhere near a full account of the barrage of paperwork consisting of Notices of Non-Compliance, Notices of Intention to Impose Sanctions, Decisions Imposing Sanctions, letters arranging Audit Reviews and support contact visits and reports of those visits which have been sent to the applicants either by the Department or by the Agency during the last two years. A chronology of relevant events, taking almost 3 pages and not including all the events leading up to the matters before us was set out by Weinberg J in his reasons for decision in Saitta Pty Ltd v Commonwealth [2000] FCA 1546 delivered 2 November 2000. Additionally Mr Menere said that there had been a petition to wind up Saitta Pty Ltd, which had been successfully opposed. A copy of that petition was received in evidence as Exhibit A6. It was filed on 12 February 1999.
A chronology of most of the relevant documents in these matter follows. It does not include all events like support contact visits but it gives some idea of the reason why we have used the term "barrage" in describing the documents in this matter. It is apparent that responding to all this documentation would be extremely time consuming. There is also much repetition in the documentation and one review audit can give rise to a number of separate decisions at different times each of which can result in sanctions. A rough chronology is as follows:
CHRONOLOGY
(not including most support visits)
15 and 16 December 1999 Audit Kenilworth (serious risk report) (consent withdrawn?) T15
22 December 1999 Review Audit Report, Kenilworth T9
11 January 2000 Notice non-compliance re 15 and 16 December T9
31 January 2000 Proposed Audit Kenilworth (no consent?)
15 February 2000 Notice of intention to impose sanctions Kenilworth T13(2)
24 February 2000 Notice non-compliance re 31 January T10
2 and 3 March 2000 Audit Kenilworth T17
10 March 2000 Notice of intention to impose sanctions Belvedere T12
22 and 23 March 2000 Audit Belvedere (access to staff impeded?)
24 March 2000 Decision to impose sanctions Kenilworth T1
4 April 2000 Notice of intention to impose sanctions Kenilworth re 15 and 16 December T2
14 April 2000 Report of Review Audit Belvedere re 22 and 23 March T15
20 April 2000 Notice of intention to impose sanctions Kenilworth re 31 January T13
2 May 2000 Decision to impose sanctions Kenilworth (access) T4(2)
18 May 2000 Notice of non-compliance Kenilworth re 22 and 23 March T11(2)
24 May 2000 Decision to impose sanctions Kenilworth re 31 January T3
1 June 2000 Certification Assessment Belvedere as to buildings
29 June 2000 Contact visit Belvedere T8
3 July 2000 Certification assessment of buildings
21 July 2000 Notice of intention to impose sanctions Belvedere re 22 and 23 March T14(2)
25 July 2000 Sanctions Decision of 24 March re Kenilworth confirmed T4
4 August 2000 Decision refusing to certify Belvedere T54(2)
16 August 2000 Decision imposing sanctions Belvedere re 22 and 23 March T6(2)
4 September 2000 Both Belvedere decisions confirmed T7 & 8
5 September 2000 Application to review V00/1063
7 September 2000 Application to review V00/1067
8 September 2000 Application to review V00/1068
11 September 2000 Kenilworth refusal of access decision confirmed T5(2)
12 September 2000 Application to review Kenilworth access decision V00/1095
15 September 2000 Serious risk report Kenilworth T19
20 September 2000 Serious risk decision Kenilworth T6
13 October 2000 Serious risk decision confirmed
24 October 2000 Application to review V00/1274
27 October 2000 Review audit Kenilworth TS22
31 October 2000 Visit Kenilworth
3 November 2000 Decision to impose sanctions Kenilworth TS19
10 November 2000 Notice of intention to impose sanctions Kenilworth non-compliance with s. 54-1(1)(e) T20
5 December 2000 Confirmation of decision of 3 November
7 December 2000 Application to review V00/1472
There were also other legal proceedings started by the applicants in the Federal Court. The Federal Court proceedings have challenged whether the actions of the Secretary and of the Agency have been lawful. With the greatest respect to the Court, it is somewhat unfortunate that it did not decide the legality issue, but left it to be decided by this Tribunal. Weinberg J said at paragraphs 96-105:
96 Each of the decisions made upon reconsideration of the first and second sanctions decisions was capable of review by the AAT pursuant to s 85-8 of the Act.
97 On 18 March 1999 Saitta commenced proceedings in the AAT seeking review of the second sanctions decision as varied after reconsideration. Then, on or about 6 July 1999, Saitta commenced proceedings in the AAT seeking review of the first sanctions decision. Each application for review claimed that the particular sanctions decision which was sought to be reviewed was based, inter alia, upon erroneous and unjustified findings, opinions, conclusions and assumptions. Each application also raised numerous other challenges to what had occurred. One ground, in particular, which was relied upon in both applications was in the following terms:
"The Secretary was not entitled to have regard to the reports and other information given to him by the Aged Care and Accreditation Agency Ltd ("the Agency") referred to in the decisions and reasons therefor."
98 Saitta also claimed that by adopting and relying upon the findings of the Agency the Secretary abrogated his statutory duty under the Act to make determinations and findings and also to exercise personally, or by his delegate, the discretions reposed in him.
99 These grounds of review by the AAT raise for consideration virtually the same issues as are raised for consideration in proceeding V 732 of 1999 in this Court. The AAT has held directions hearings in relation to each of Saitta's applications for review. It has adjourned those applications pending the hearing and determination of the present motion brought by the respondents in this Court.
.…103 The AAT is able to decide questions of law arising in proceedings before it - Administrative Appeals Tribunal Act 1975 (Cth), s 42. Accordingly, if the AAT thinks it necessary to consider, as part of the process of reconsideration of the first and second sanctions decisions, the validity of the 1998 and 1999 Principles, it may do so. Although it cannot exercise judicial power, and may not be entitled to grant the declaratory relief which is specifically sought in the proceeding before this Court, the AAT can arrive at a conclusion as to whether or not the steps preceding the making of the sanctions decisions were lawful, and whether or not various provisions of the Act were contravened - Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 245 per Brennan J. The AAT is entitled to treat delegated legislation as invalid where it is satisfied, on proper grounds, that this is so - Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; and Re Jonsson and Marine Council [No. 2] (1990) 12 AAR 323 at 335-341.
104 The relief which is sought by Saitta in proceeding V 732 of 1999 is discretionary. The fact that it has available to it adequate alternative remedies in the AAT in proceedings which it has already commenced provides considerable support for the proposition that the proceeding in this Court should at least be stayed. Where full merits review is available to, and has already been invoked by, an applicant, Courts will often exercise their discretion to stay or dismiss applications for judicial review - see Blank v Beroya Pty Ltd (1967) 92 WN(NSW) 24 at 26 per Street J; Land v Clyne (1968) 92 WN(NSW) 134 at 136 per Myers J; Liverpool and London and Globe Insurance Co Ltd v JW Deaves Pty Ltd [1971] 2 NSWLR 131 at 135 per Else-Mitchell J; Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492 at 498 per Dixon CJ; Moran Hospitals Pty Ltd v King (1997) 49 ALD 444 at 458-459 per Beaumont J; Wyeth Australia Pty Ltd v Minister for Health and Aged Care [2000] FCA 330 at pars 44-47 per Finn J; and Riverside Nursing Care Pty Ltd v Bishop [2000] FCA 434 at par 5 per Sundberg J.
105 I am also of the opinion that the institution of this proceeding by Saitta represents an attempt on its part to circumvent the plain intent of the orders made by North J when his Honour stayed proceeding V 71 of 1999. North J made it clear that the application for judicial review of the sanctions decisions should be dealt with, in the first instance at least, by the AAT. His Honour arrived at that conclusion because he was satisfied that the AAT was in a position to reconsider these decisions in their entirety. Standing in the shoes of the Secretary, the AAT can determine whether or not the decisions to impose sanctions were the "correct and preferable" decisions - Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. I respectfully agree with the views expressed by North J. The further application brought by Saitta is, in my view, an abuse of process, and may be dismissed as such notwithstanding minor differences in the identity of the parties, or the formulation of the claims - Moore v Inglis (1976) 9 ALR 509 at 513-515 per Mason J. See also Kizon v Palmer (No 2) (1998) 82 FCR 310.
It seems that neither Weinberg J nor North J considered the legal challenge by the applicants was so lacking in substance that it could be quickly dismissed, but they were of the view that it should first be decided by the Tribunal. We have not been able to have a full hearing of the legal issues in the time available. But even if we had done so the matters are so significant that an appeal to the Federal Court may have followed in any event.
Ms Hampel, in cross examination of Mr Menere, emphasised the fact that he had had opportunities to respond to notices of which he had not taken advantage. He agreed but explained that he had tried but was simply "spread too thin" to handle all the issues. He also said he had relied on legal advice, and on past experience had not expected that his responses would have changed the situation. We accept those explanations, particularly in the light of the chronology set out above.
We did not have time to explore all the issues raised in that evidence of Mr Menere. However we can say that as an experienced Tribunal obliged to deal with the matter in a tight time frame and faced with objections by the respondent to material contained in affidavits, and to consolidation and to stay applications, we have felt extremely concerned that we could not adequately review all the issues which arise for determination. It is an unusual and uncomfortable situation in which we find ourselves.
The applicants have been unable in the time available to fully litigate all the relevant issues. As soon as one might think there is a level playing field with clear issues to be resolved, there is a new problem with which to deal. The evidence has also raised doubts as to whether the sanctions prescribed in the Act and used by the Secretary are likely to achieve the desired result of helping a service provider provide an adequate standard of care. It seems that by imposing additional burdens and sanctions which result in reduced funding to nursing homes, which are already over burdened and under staffed, decision makers may in fact be making worse the situation they are intending to remedy. The Agency claims that it has a supportive role but Mr Menere did produce (Exhibit A3) an exchange of correspondence between him and the Agency in which a request for help was rejected due to lack of resources.
The scheme of the Act and the role of the Agency and the significance of accreditation and of the Aged Care Principles are set out in the parties' statements of facts and contentions. Justice Weinberg described the system as a "somewhat convoluted legislative scheme". We can only agree.
The applicant in paragraph 5(e) of its statement of facts and contentions contended:
The seriousness of these allegations and the seriousness of the consequences of findings upon them adverse to the applicant must "affect the ease or difficulty of persuading the decision-maker that the adverse finding should be made." " See re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 255 (per Brennan J.) See also Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and Rejfek v McElroy (1965) 112 CLR 517 at 519.
We accept the contention of the applicant on this issue.
The Saitta Decisions (V00/1067 and V00/1068)
The two Saitta decisions under review are both based on conduct of Mr Menere at a review audit conducted on 22 and 23 March 2000 (T15). His conduct is said to have rendered the review audit "unable to be completed" (T5 p. 57) and thus to have prevented "the validation" of "the findings of the review audit".
The certification decision V00/1068
It is claimed in the certification decision that although the report of the review audit after 1½ days at the premises did not "identify any areas of serious risk to the care recipients and generally describes the standard of care … as adequate", the findings were not able to be validated and thus, because there was no current completed review audit, a conclusive determination could not be reached regarding the then current standard of care.
It is common ground that under s. 38-3 of the Act a decision to certify requires consideration of three factors, the standard of the buildings, the standard of residential care and the prior history of conduct, compliance and obligations of the provider. The delegate accepted that the standard of buildings and equipment used at Belvedere was adequate.
The delegate refused certification for the following reasons:
·I am not able to reach a conclusive determination regarding the current standard of residential care provided at your service, because the last completed review audit is not current and the more recent material is incomplete. However, while there are indications that the standard of residential care is adequate, there remains a number of matters that require addressing.
·You have breached your responsibilities under Part 4.1 of the Act by not complying with the Residential Care Standards on a number of occasions. Sanctions have been imposed on you on 3 occasions being 2 May 2000, 9 February 1999, and 18 December 1998.
As to the second bullet point the sanctions imposed on 9 February 1999 and 18 December 1999 are the subject of review applications lodged with this Tribunal on 18 March 1999, V99/292 and 6 July 1999, V99/730. Those review applications were adjourned pending the delivery of decision by Weinberg J. No action has yet been taken in those matters since 2 November 2000 when Weinberg J delivered his decision. For practical purposes both parties regarded the important aspect of the refusal of certification as the problems with the review audit on 22 and 23 March. The sanction imposed on 2 May 2000 was only for three months and has now expired. It is not the subject of any review by this Tribunal.
In both the decision to refuse certification and the confirmation decision the decision maker said that "the findings of the review audit were not able to be validated and the standards were not able to be rated" (T5 p. 57, T8 pp. 110-111). The facts as to ability to validate the report are set out in both the original decision (T5) and the confirmation (T8). The decision makers in Part B of their decisions both state that their report is based on "documentary evidence, the approved provider's representations, some interviews with staff and discussions with residents and relatives" (T5 p. 57, T8 p. 111).
The issues to consider are:
were the findings of the review "not able to be validated".
If not, should the decision on certification be set aside?
If so, should a new decision be made on the evidence before the Tribunal or should the matter be remitted to the decision maker for a further review audit to be conducted. That issue requires consideration of the findings of review audit of 22 and 23 March 2000 and of the report of the contact visit of 29 June 2000 (see T8 p. 114 as to support contact visit) as well as of the legal requirements for certification.
In order to decide whether the findings of the review audit were not able to be validated at the review audit on 22 and 23 March it is necessary to make findings as to what happened at the review audit. Those findings are also required to consider the Saitta decision V00/1067 which was a decision to impose sanctions.
Weinberg J in Saitta Pty Ltd v Commonwealth, at paragraph 103, said that the AAT can arrive at a conclusion as to whether or not the steps preceding the making of a sanctions [or certification] decision were lawful and whether or not various provisions of the Act were contravened. Those issues have been raised in these matters. We have not found any authority for the Agency to conduct a review audit for certification purposes. The respondents statement of facts and contentions in the Saitta matter raised the issue of certification at paragraph 43, but failed to address the procedural steps by which it claimed the Agency was authorised to make an assessment for certification purposes.
Ms Hampel in her opening address explained that the Act provides in s. 54-1 that residential care services which are not accredited must provide care in a way that meets the residential care standards set out in Schedule 3 of the Quality of Care Principles.
The Tribunal considers it necessary in considering the lawfulness of a decision as to certification to start with Part 2.6 of the Act dealing with Certification of Residential Care Services. Sections 38-3 and 38-4 provide:
38-3Suitability of residential care service for certification
(1)In considering an application, the Secretary must have regard to:
(a)the standard of the buildings and equipment that are being used by the residential care service in providing residential care; and
(b)the standard of the residential care being provided by the residential care service; and
(c)if the applicant has been a provider of aged care – its conduct as such a provider, and its compliance with its responsibilities as such a provider and its obligations arising from the receipt of any payments from the Commonwealth for providing aged care; and
(d)any other matters specified in the Certification Principles.
(2)The reference in paragraph (1)(c) to aged care includes a reference to any care for the aged, whether provided before or after the commencement of this section, in respect of which any payment was or is payable under a law of the Commonwealth.
(3)The Certification Principles may specify the matters to which the Secretary must have regard in considering any of the matters set out in paragraphs (1)(a), (b) and (c).
38-4 Secretary may require service to be assessed
(1)For the purpose of deciding whether to certify a residential care service, the Secretary may require the service to be assessed by a person or body authorised by the Secretary.
(2)The assessment may relate to any aspect of the residential care service that the Secretary considers relevant to the suitability of the service for certification.
Ms Hampel did not refer us to any authorisation by the Secretary under s. 38-4 of the Act of the Agency as a body to assess services for certification under Part 2.6 of the Act. Such an authorisation must be made in accordance with Principle 8.12 and 8.13 of the Certification Principles. The Agency could be authorised for this purpose. But there is no evidence or assertion that it has been. It was stated in evidence that Fisher Stewart was authorised to assess the buildings and equipment for certification purposes. There was no evidence that the Agency has been authorised under s. 38-4 of the Act to assess the standard of residential care for certification purposes. The Certification Principles in s. 8-10(1)(a)-(f) deal with matters as to the standard of residential care to which the Secretary must have regard in considering an application for certification. Such an assessment may under s. 38-4 be "by a person or body authorised by the Secretary".
The review audit report itself (T15) states that it was "conducted in accordance with Part 3, Division 2, Subdivision 1 of the Accreditation Grant Principles 1999". That relates to continuous improvement of residential care services before 1 January 2001, but it is not necessarily a part of certification. In her closing submissions Ms Hampel relied on paragraph (b) of Division 80-1(1) of the Act as authorising the making of a grant of money to the Agency for purposes specified in the Accreditation Grant Principles. However certification is not a purpose specified in the Accreditation Grant Principles.
There seems to be a gap in the legislation and principles. It is not clear how the standard of residential care is to be assessed for certification purposes under s. 38-3(1)(b).
There is no express requirement that there be a review audit for assessment of the standard of residential care for certification under Part s. 2.6 of the Act, although such an audit is expressly stated to be necessary for accreditation. The aspects of residential care to be addressed are set out in the Certification Principles Part 4 8.13. It provides:
Aspects of residential care service to be assessed:
The Secretary may approve a method of evaluation for an assessment only if the evaluation deals with the following aspects of the residential care service:(a)whether the service provides a secure and safe environment for residents and staff;
(b)the exits from the service (for example, the number of exits, their width, and how they are identified);
(c)whether the service has adequate smoke-free compartments;
(d)whether the service has:
(i)adequate fire protection (for example, fire detectors, alarms and fire fighting equipment); and
(ii)appropriate emergency evacuation systems;
(e)whether there are any hazards within or outside any of the buildings;
(f)whether the service provides adequate personal privacy to residents (having regard to, for example, the number of beds in each room);
(g)whether the buildings have adequate facilities to enable residents to move freely within the buildings (for example, ramps, rails, and lifts);
(h)whether the buildings have adequate heating and cooling facilities;
(i)whether the buildings have adequate lighting and ventilation;
(j)whether the service provides a home-like environment;
(k)whether there is access to community services (for example, public transport, banks, medical care, pharmacies, shopping centres).
Those items appear to relate to buildings and do not deal with standards of personal care although 8.10 does make reference to matters such as non-compliance with responsibilities under Parts 4.1, 4.2 or 4.3 of the Act. It is 4.1 which deals with Quality of Care and provides in s. 54-1 that an approved provider must provide such care and services as are specified in the Quality of Care Principles.
The sanctions decision V00/1067
The sanctions decision (T6) was made on 16 August 2000 and confirmed on 4 September 2000 (T7). It imposed sanctions on Saitta for failure to comply with its responsibility under s. 63-1(1)(l) of the Act "to allow people acting for the accreditation body to have such access to the service as is specified in the Accountability Principles". The sanctions imposed were:
1.restrict for the period of 12 months your approval under Part 2.1 of the Act as provider of aged care services to care recipients to whom you are providing care at the time this sanction is imposed, in accordance with s. 66-1(c)(i) of the Act; and
2.prohibit for the period of 12 month, the further allocation of places under Part 2.2 of the Act, in accordance with s. 66-1(f) of the Act.
Section 63-1(1)(l) provides that an approved provider has a responsibility:
(I)to allow people acting for accreditation bodies to have such access to the service as is specified in the Accountability Principles;
An "accreditation body" is defined in Schedule 1 of the Act as follows:
accreditation body means a body to which an accreditation grant is payable.
Matters common to both Saitta decisions
It is not possible to consider the certification decision and the sanctions decision separately. They are too closely interrelated. We accept that the Agency is an accreditation body (see s. 80-1), but was the review audit for a purpose specified in the Accountability Principles? If the Secretary had authorised the Agency under s. 38-4 of the Act to assess the standard of residential care at Belvedere for certification purposes, then the relevant responsibility would seem to be found in s. 63-1(1)(j) which provides:
(j)to allow people authorised by the Secretary access to the service, as required under the Accountability Principles, in order to review the certification of the service under section 39-4;
The fact that that provision was not relied on by the Secretary does again raise the question whether the Agency has been authorised to do assessments for certification. Mr Menere claims that the review audit at Belvedere on 22 and 23 March was a response to his request for certification under Part 2.6 of the Act. Mr Menere in paragraph 5 of an affidavit in the Saitta matter referred to a letter dated 16 December 1999 from Ms Bowman stating that she would have regard to an earlier review audit in regard to a review of certification. It was in response to that letter that arrangements were made for a further review audit "by appropriately qualified assessors" to quote from a letter dated 9 February 2000 from the applicants solicitors to the Agency (Ex. GPM4 to affidavit of Mr Menere). We consider there is a question whether the assessors were "appropriately qualified" in the sense of being authorised under s. 38-4. Because of our findings on the issue it is not necessary for us to resolve that matter.
The Assessors in their review audit report (T15) claimed:
REVIEW AUDIT REPORT
This is a report of a review audit conducted in accordance with Part 3, Division 2, Subdivision 1 of the Accreditation Grant Principles 1999.
In conducting the review audit, the assessment team has assessed on-site the quality of care provided by the residential care service against the Residential Care Standards. The team has considered comments and/or submissions received from the Secretary of the Department of Health and Aged Care, current and previous residents of the service (and/or their representatives) and the approved provider.Part 3 of the Accreditation Grant Principles in subdivision 1 does deal with continuous improvement of residential care services that are not accredited. It provides for monitoring of continuous improvement of such services and for regular supervision by support contact visits (3.3). It also provides in 3.4 for review audits of residential care services as follows:
(1)The accreditation body may arrange for a review audit if it believes, on reasonable grounds, that there may not be compliance with the Residential Care Standards, or other responsibilities under the Act.
(1)The accreditation body may arrange for a review audit if there has been a change to the service about which, under section 9-1 of the Act, the accredited provider must tell the Secretary.
(2)The accreditation body may arrange for a review audit if, under section 16-1 of the Act, there has been a transfer of allocated places.
(3)The accreditation body may arrange for a review audit if there has been a change to the premises of the service.
(4)The accreditation body must arrange for a review audit at the Secretary's request.
The evidence did not clarify how this review audit was arranged. Neither Ms Bowman nor Ms May, the leader of the assessment team, produced any authorisation, comments or submission or request from the Secretary or the Department. It would seem that following the correspondence referred to in Mr Menere's affidavit the Secretary requested the Agency (even if it was not authorised under s. 38-4) to arrange the review audit.
The Act in Part 4.4, s. 6 makes provision for the imposition of sanctions for non-compliance with Accountability responsibilities. The question is whether Saitta by its representative Mr Menere did breach Accountability Principle 1.12 which provides:
1.12 Access to staff etc
An approved provider must not impede a representative's access to, and ability to question, any person on the premises of its residential care service, including staff, care recipients, visitors and contractors, if the access and questioning by the representative is relevant to the representative's functions and is:
(a)relevant to the operation or administration by the approved provider of its residential care service; or
(b)necessary in order to obtain information about whether the service is meeting its obligations under the Act.
Interestingly, the definition of "representative" includes:
(a)a person or body authorised by the Secretary to access a residential care service to review the certification of the service under section 39-4 of the Act;
The factual findings are common to both Saitta decisions. We find on the evidence of the assessment team and of the video of the entry interview that the review audit got off to a bad start for three reasons. First, the team was not fully briefed as to the negotiations between Mr Menere, through his solicitors and the Agency, as to the terms on which the review audit would be conducted. Mr Menere, by letter of 9 February 2000 from his solicitors, had required acceptance of certain conditions before agreeing to the review audit. Those conditions included:
(a)Mr Graeme Menere is to be permitted to be present at the premises during the performance of the Review Audit, and he is to be permitted to make an audio/video recording of all interviews between assessors and members of our client's staff, and any exit interview.
…
(e)In the event that any assessor considers that there has been non-compliance with any Standard, full particulars of the non-compliance shall be given at or before the exit interview, and our client will be given a sufficient opportunity to respond and produce evidence before any opinion as to non-compliance is formed or expressed. (emphasis added)
Mr Overton, the State Manager of the Agency replied by letter dated 14 February 2000 as to those proposed conditions:
2.We would expect a representative of the approved provider to be present during the review audit. I note that you propose to record the review audit with a video camera. Whilst you may consider it appropriate to record the review audit, we are concerned that there will be times when to continue to record may not be respecting the residents right to privacy, dignity and confidentiality. As you know, the Residential Care Standards require that each resident's right to privacy, dignity and confidentiality be recognised and respected. In addition, the inappropriate or persistent recording of the assessors may interfere with the performance of their functions. Recording at some times, such as the entry and exit meetings, would not appear to raise the same concerns.
I request that should you wish to video during the review audit you do so in a way that respects the rights of the residents and the need for the assessors to perform their functions and to ensure the tape is reliable, provide a copy at the exit interview.
…
5.The legislation contains detailed provisions relating to the conduct of review audits, the production of a review audit report by the assessment team, your right to give the Agency a written response and the obligation on the Agency to consider your response. In particular, I note the procedures in the Accreditation Grant Principles which ensure you are given a full opportunity to make submissions during the review audit and provide comments on the review audit report (see principles 3.5(1)(e), 3.5(3), 3.7(1), 3.7(2) and 3.7(3)(b). The Agency conducts review audits in an open and frank way. It is standard practice to conduct an exit interview during which the assessment team will discuss any concerns they may have. (emphasis added)
Ms May wrote in her statement comprising part of the report of the audit (T15 p. 185) she advised Mr Menere at the entry interview that the team would not comply with Mr Menere's condition that they not speak to staff unless they sought his presence. She stated:
I stated that we would not comply with the request to not speak with staff unless we sought his presence, as this would make it impossible for us to conduct a credible audit. He said that staff had requested this as they did not trust that we would report their statements accurately and they were intimidated, that they knew that Nursing Staff had been reported to the Nurses Registration Board over the Riverside affair. He went on to say that the staff had taken this to the union and that the union had an issue with us. I stated that we had not had any complaints from the union. He stated that he had instructed his staff not to speak with us unless he was present. I stated that we would conduct our audit as we would normally. (emphasis added)
It would have been far preferable, if the team was not intending to comply with the conditions specified in the correspondence between Mr Menere's solicitors and Mr Overton, for that information to have been clearly stated in Mr Overton's reply of 14 February. If it was considered "impossible to conduct a credible audit" unless staff were interviewed without Mr Menere's presence, Mr Overton as State Manager of the Agency should have known that and should have made it clear to Mr Menere before the review audit started.
The second reason why the review audit got off to a bad start was because of the challenges to the authority of the assessment team made by Mr Menere at the entry interview. As the preceding paragraphs of these reasons show there may well have been validity to the challenges made by Mr Menere, but he had agreed to the review audit. He challenged the assessment team's authority before he knew that the team did not intend to comply with his condition 1. We find that he did so, as Ms Hampel submitted, in an overbearing and hectoring manner.
The third problem we find was that there was a lack of trust and an expectation of difficulty on both sides, because of the past history of review audits at Belvedere and because of the fact that there was litigation challenging the most recent review audit report. There were also different expectations as to the result of videoing interviews. We find on the evidence of Ms Iles and Ms Persaud that the distrust of the Agency was not confined to Mr Menere but extended to the staff at Belvedere.
We find that Mr Menere did not prevent the staff speaking to the assessors without him being present. They were themselves in favour of the videoing of their interviews with the assessment team. Not only did Ms Iles and Ms Persaud give evidence to that effect, it was also the information obtained by assessors during the review audit. Ms May wrote in her statement (p. 188) that she had overhead Mr Menere ask a staff member (Ms Iles) if she would like to proceed with an interview with him not present and she had said "no that's OK". Ms Iles in her evidence explained that she had been very upset by Ms May's manner and that she had wanted the interview videoed.
Ms Dockrell, another member of the team in her statement (p. 193) acknowledged that she had spoken to one staff member on the second day in a residents room:
The staff member was happy to talk to the auditor, did not get Mr Menere or the CSM and was able to answer questions.
Ms Dockrell also reported that Ms Persaud had told her that staff had rung in sick because "they are afraid to talk to you". Ms Dockrell also spoke to a relative who said "they were not afraid if he filmed them, they would tell us the truth".
Ms Lloyd, another assessor, wrote in her statement (p. 194):
The second day I told Mr Menere that I needed to talk to either a couple of PCA's or nursing staff. He followed me with his video as I went in search of staff. Two staff members that I approached told me that they could not talk to me because they were going on their tea break. One agreed to meet me at the nursing station after her tea break. When Mr Menere was out of earshot I asked the staff if they were happy to be videoed one shrugged her shoulders and replied yes and asked if I was happy about it. I told her I had no choice.
…
I approached another staff member to speak to me she agreed to do so but stated that she would have to get Mr Menere. I asked her how she felt about being videoed, she stated, something to the effect, that it was probably better for all concerned, there would be less problems and no dispute over what was being said. Mr Menere arrived and videoed the interview. The interview was cut short because another staff member requested urgent assistance in lifting a resident.
I also interviewed the cleaner, she is employed by a contractor and is not an employee of the service, she did not request Mr Menere's presence. Approximately five minutes after the interview with the cleaner, Mr Menere approached the cleaner and I heard him ask the cleaner what questions I had asked her and what her answers were. He then requested that she repeat what she said on video, she agreed.
The reason for imposing sanctions was said to be that Mr Menere's conduct:
impeded the ability of staff to provide full and frank responses to the representatives' questions;
impeded the representatives' ability to obtain information through questioning staff members; and
the representatives were unable to ask questions to staff and hence to verify findings.The staff who gave evidence said it was staff choice and not Mr Menere's direction that their interviews be videoed. As is apparent from the extracts quoted in the preceding paragraphs, not all staff made that choice anyway. We find that it was a decision for each staff member as to whether to be interviewed only on video or not.
However in spite of the problems the assessment team associated with videoing, they did in fact succeed in speaking to and questioning a number of staff. From reading their statements they appear to have questioned the following staff and management at Belvedere.
Ms May – 1st day
Management Mr Menere
Ms McTavishInterview with staff member (1) about lack of soap in washbasins
Ms Persaud
- 2nd day
activities person (2)care staff member (3) (Ms Iles)
Ms Dockrell - 1st day
Ms Persaud
a relative
Ms Persaud (without Mr Menere present)
residents and relatives·2nd day
one staff member (4) in a resident's room
Ms Lloyd - 1st day
activities officer (is this the same person as 2?)
cook (5)
laundry staff member (6)·2nd day
one care staff member (7) (only with service a week)
another care staff member (8)
cleaner (9)Ms Dean - 1st day
Ms Persaud
Ms McTavish
That is a total of 9 staff of whom at least 5 were care staff, in addition to three members of the management.The assessment team said in their reports and in evidence that they concluded that staff were "running away from them". They did not say that they made that suggestion to Mr Menere or Ms McTavish. They did not say that they explained to management that if this was happening it could invalidate the review audit. Ms Lloyd seems to be the only assessor who spoke to management about the problem the assessors perceived in locating staff. She spoke to Mr Menere. The two staff members she then approached both agreed to be interviewed.
We find that it would have been appropriate for Ms May, if it was necessary for more staff to be interviewed, to have raised that matter with Mr Menere or Ms McTavish. We find that such a course should have been adopted on the second day before the audit was terminated early on the second afternoon. We understand that the assessors were working in an atmosphere they perceived as hostile. However they are professional people. The audit was going very well in terms of the standard of care. It was not appropriate to terminate the interview early on the ground that they could not speak to sufficient staff, without making a formal request that more staff be made available to them. When questioned Ms May and another team member said that they had not directly asked Ms McTavish or Mr Menere to make further specified staff available to them.
The assessors said there is a requirement that an assessment team interview a minimum of 10% of staff. We have not found that set out in the Accreditation Grant Principles as a requirement of an accreditation audit. So far as we can tell it is not specified as a requirement of an assessment for certification or even as a requirement when monitoring residential care services before 1 January 2001. Principle 2.24(2) does require that a team meet with 10% of persons receiving care for an accreditation site audit. In any event, there is no calculation in the report showing that less than 10% of staff were interviewed. Nor was there clear evidence as to how many staff were on duty at the time of the review. The management team was interviewed and also 5 care staff members, 1 or 2 activities people and a cook, a cleaner and a laundry staff member. Unless Belvedere employs 50 care staff for a 30 bed unit, which would seem unlikely, that must be more than 10% of the care staff members.
The other complaint is that staff could not give full and frank answers to questions because of Mr Menere's presence. But no example was given of any answer that appeared to be unreliable. No staff member said she could not answer under the circumstances. The embarrassment or discomfort reported by staff and observed by the team could as well be due to discomfort with the fact of being interviewed by the team, as discomfort because of Mr Menere's presence. There was no reason to believe that staff would not, like the relative referred to by Ms Dockrell, tell the truth even if being videoed.
Ms Iles and Ms Persaud said they had found the assessors too persistent or intimidating or hostile in demeanour. Similar complaints were made during the review. Mr Persaud said she was upset by the manner of Ms Dockrell which implied that she was lying about residents having labelled personal incontinence pads. Ms May acknowledged that she had made a mistake in closing the door when Ms Iles was being interviewed. The report contains a number of other examples of staff "reddening", or appearing distressed, nervous, anxious or "becoming increasingly agitated" or being stressed. There was evidence that some staff were anxious because the assessors did not seem to be taking notes.
We find that the assessors found the atmosphere of the review audit hostile and intimidating. Mr Menere's manner no doubt contributed to such feelings. It may have been necessary for the review audit to be adjourned to another date, or for the assessors and management to have a coffee break or something similar. Ms May made a decision in difficult circumstances. But we find, bearing in mind the significance of the assessment for certification purposes, that it should not have been terminated after lunch the second day, when there was plenty of time to approach management to arrange whatever further interviews were necessary to complete the assessment. That step should have been taken before the review audit was prematurely terminated.
The video shows that at the time of the exit interview Mr Menere was pleading with the assessors for the feedback which he had required in his solicitors letter of 9 February 2000, and which had been agreed to in Mr Overton's reply. There was a need for that feedback. The answer Mr Menere had requested from Ms Dockrell in regard to incontinence pads was not in our opinion to be gleaned by winding back the video. No areas requiring improvement were itemised in the exit interview. The exit interview was misleading as to the result of the assessment.
We do not find that Mr Menere impeded the assessor's access to and ability to question any person on the premises of its residential service. We find that the assessment was terminated prematurely because of the obvious tension felt by all. It was generated by a number of factors. One was Mr Menere's manner, another was the manner of the assessors, and another was that staff were anxious after past experiences with review audits at Belvedere. In spite of these problems the assessors had performed much valuable work as their report shows. They had a responsibility to see the assessment through. They should have asked management to have further staff made available to them. There was no need for them to leave when Ms May decided to terminate the assessment review. The findings which they were making were generally favourable to the service. It was entitled to expect certification as a result of the assessment unless there were inadequacies in quality of care.
We have not found that the findings of the assessment team were unable to be validated. Many staff were spoken to and questioned by the assessors. There is no suggestion on the evidence that any of them did not give full and frank answers, or that they were evasive. Ms Dean said she only needed to see one more person, the SRN who would be on duty in the afternoon after shift changed. She said she could have done so if the audit had not already finished by that time. The transcript reads at p. 544:
Mrs Dean, if the audit had not finished, I am asking you, as to your position and from what you had seen, was there any impediment to you waiting and seeing and interviewing staff upon the change of shift that day?---If the audit had not finished, no there wouldn't have been but the audit had finished and I had no transport to go home by myself.
We find the assessment required for certification could have been finished either on the information available, or by requesting Ms McTavish to make any further staff required for validation available, or by simply waiting till the afternoon shift came on duty.
It follows that the decision refusing certification of Belvedere and the decision imposing sanctions on Belvedere must both be set aside.
The next question is what should we do in substitution for the decision refusing certification. As we have already said the review audit is full of favourable findings. It was acknowledged by both the decision makers on the certification issue that the report "indicated that the overall standard of care was adequate". The executive summary reads as follows:
The service is implementing systems to ensure that residents' care needs are comprehensively assessed on admission and that individualised care plans are developed, implemented, evaluated and reviewed. The systems are not well established nor reviewed by management to ensure consistency and compliance by all levels of staff. Residents and relatives generally expressed satisfaction with the level of care provided by care staff. Policies and procedures in relation to all areas of the Residential Care Standards have been introduced and are in the process of being made available to care staff.
The service generally provides residents with a supportive environment by ensuring their integration into the service and that their privacy and dignity is respected. A program is offered to assist residents to persue their basic leisure interests. The service has systems to identify and document their preferences and cultural and spiritual needs. Systems could be further developed to foster community involvement. There are established systems in place for residents and relatives to raise their concerns.
The service provides a safe environment through the establishment of an infection control program and a maintenance program. The service minimises risk of fire, security and other emergency through staff education and provision of appropriate equipment. A committee has recently been established to monitor the effectiveness of the environmental programs and incorporate continuous improvement.On 29 June 2000 two assessors from the Agency, Ms Thompson and Ms Dockrell, attended at Belvedere for a support contact visit. Their report is very favourable. Ms Dockrell was returning to the service after the difficult assessment of 22 and 23 March. There were no problems with access to staff or relations between management and the assessors. The team spoke to Ms Persaud, to a new activities co-ordinator and to a kitchen assistant. The team noted many improvements and only two minor areas still requiring improvement. There were improvements to clinical care records, nutrition and hydration, skin care, continence management and assessment of sensory loss, leisure activities, occupational health and safety matters and catering. The only areas identified as still requiring improvement were:
The team observed that Specified Care and Services such as analgesics, aperients and skin creams have chemist labels with individual resident names. This was discussed with the Unit Manager and she undertook to bring it to the attention of the DON. The team also advised that a preventative maintenance program would need to be documented for accreditation.
The support visit team asked for a Review Audit as soon as the schedule permitted. For reasons which were not explained to the Tribunal that did not occur until 31 October 2000 and 1 November 2000. Although we have not seen that report it seems to have made a number of adverse findings as to Quality of Care. We acceded to an application by Ms Hampel to strike out of the affidavits of Ms Persaud and Ms Iles the sections dealing with that report. The affidavits of Ms Stekley and Ms Dekker cannot be relied on as there was no time for them to appear, and be cross examined. Thus we can make no findings as to that report. We can say only that we are surprised and disappointed that care which was generally adequate in March 2000 and had improved by 29 June 2000 has been rated less well four months later.
Ms Hampel said that there is discussion between the parties as to Saitta asking for a reconsideration of the findings of that report. That should be done without further delay.
It seems very unfortunate that the adequate care in March 2000 and the further improvement in June 2000 did not result in a favourable certification decision. That might have brought to an end the conflict or misunderstanding between the Department and the Agency on the one hand and the applicant on the other hand.
We see at T16(x-xii) pp. 255-261 that as far back as June 2000 the solicitor for Saitta was endeavouring to resolve issues of concern "in an amicable way" and was proposing that Mr Menere not be present at the nursing home during lawful inspections by the Agency. We made a similar suggestion during the hearing.
We have considered whether on the basis of the favourable, but allegedly incomplete review audit and the more favourable support contact visit we should ourselves substitute a decision that the service be certified from 23 March or 29 June 2000 being the date of the support contact visit. We note that Ms Thompson and Ms Dockrell did not make that recommendation. They seem to have accepted that a review audit under the accreditation principles was necessary to assess the standard of care for certification as well as for monitoring continuous improvement under Quality of Care Principles. We are not convinced of that matter but the issue was not sufficiently addressed during the hearing for us to conclude that we do have sufficient information as to standard of residential care to make a certification decision ourselves.
We have noted paragraph 26 of the letter from Clayton Utz to the Registrar of the AAT dated 13 December 2000. It reads:
Given the Applicant's foreshadowed challenge to the findings of the Review Audit Report in respect of Saitta of 31 October - 1 November 2000, it is the Respondent's submission that it is inappropriate in any event in the time available for the AAT to consider whether the current standard of care complies with the Residential Care Standards. Such a finding would only be necessary for the Tribunal to make if it were to consider substituting its own decision for the challenged certification decision. The Desk and Site Audits which will consider the current standard of care must be conducted for the accreditation decision. The Agency is organising an interstate team to conduct the Desk and Site Audits. The accreditation decision will be made by an interstate officer of the Agency. The Agency will endeavour to conduct the Desk Audit before Christmas and the Site Audit early in the New Year. The decision will be made as soon as possible based on the need to comply with the legislation and principles, to accord with procedural fairness and ensure that it is a proper decision. If the Tribunal is of the view that the certification decision should be set aside, the Respondent submits it should be remitted to the Secretary for the current standard of care to be decided by reference to the findings of the accreditation review audit. If the impede finding is set aside, or the sanction varied, then the setting aside or variation, and its consequential effect on the refusal of certification, will be put before the accreditation decision maker, thus ensuring that the decision maker has before it the matters favourable to the Applicant arising out of any successful outcome from this Tribunal.
We have concluded that because of the time pressure and the procedural uncertainties surrounding the issue we are not in a position to ourselves make a decision as to certification. The matter will be remitted to the Secretary with a direction that Belvedere be assessed as soon as possible by a person or body authorised by the Secretary under s. 38-4 to assess the standard of residential care for certification purposes. We expect that the assessment and certification decisions will be made by interstate authorised officers as proposed by Clayton Utz in regard to the accreditation procedures.
As we have not found that Saitta by Mr Menere did breach its responsibilities under either s. 63-1(1)(j) or s. 63-1(1)(l), the sanctions imposed in the sanctions decision made on 16 August and confirmed on 4 September 2000 will be set aside.
The Neviskia DecisionsThe Tribunal has four Neviskia decisions to review. V00/1095 relates to sanctions imposed in respect of a withdrawal of consent for an audit review and a refusal to consent to an audit review of Kenilworth ("the access decision"). V00/1063 and V00/1274 relate to sanctions imposed under s. 67-1(2) of the Act without prior notice. That procedure applies where in the Secretary's opinion "there is an immediate and severe risk to the safety, health or well-being of care recipients". The fourth decision V00/1472 also relates to sanctions imposed under the immediate and severe risk provision. As we have said earlier we have not had time to hear sufficient evidence to make a decision in respect of that matter. It will have to be adjourned to next year.
The access decision V00/1095
This application seeks review of a decision of 24 May 2000 (T3) made by a delegate of the Secretary to impose sanctions on Neviskia for non-compliance with its responsibility under s. 63-1(1)(l) of the Act by not allowing people acting for the Agency to have such access to the service as is specified in the Accountability Principles. The occasions on which access was said to have been denied were 16 December 1999 and 31 January 2000.
The reviewable decision was confirmed on reconsideration (T5) on 11 September 2000. The sanctions imposed were:
1.To restrict for the period of 12 months your approval under Part 2.1 of the Act as a provider of aged care services to care recipients to whom you are providing care at the time this sanction is imposed, in accordance with s. 66-1(c)(i) of the Act.
2.To prohibit for the period of 12 months, the further allocation of places under part 2.2 of the Act, in accordance with s. 66-1(f) of the Act.
The applicant, by its representative Mr Menere, in a letter from its solicitor dated 21 June 2000 (T20(xiv)) requested reconsideration of the 24 May 2000 decision. Mr Menere had written to a delegate of the Secretary and to the Agency about the relevant issues on 25 January 2000 in response to a Notice of Non-Compliance arising out of that review audit. (T20(vi) & (vii)). He did not make further submissions with regard to the Notice of Non-Compliance dated 24 February 2000 (T10) and Notice of Intention to Impose Sanctions dated 20 April 2000 (T13).
The matters which gave rise to the findings were stated in T5 p. 31 to be:1.Withdrawing consent on 16 December 1999 for the review audit of 15 and 16 December 1999, and
2.Refusing consent on 31 January 2000 for the review audit notified for 31 January 2000 and 1 February 2000 to proceed.
Legal Issues
The applicant relies on s. 1.8 of the Accountability Principles and specifically the following:
1.8 Consent to access service
(1)A representative must not access an approved provider's residential care service unless the approved provider has consented to the access.
(2)The approved provider may withdraw consent at any time.
(3)The representative must leave the premises of the service if the approved provider asks the representative to do so.
(4) …
(5) …
(6)An approved provider must not reasonably withhold consent if access to the service is required in circumstances where the representative believes, on reasonable grounds, that there is a serious risk to the safety, health or wellbeing of a person receiving care through the service.
NoteAn approved provider who refuses to consent to a representative's access to the service or withdraws consent for a representative's access to the service may not be complying with the approved provider's responsibilities under paragraph 63-1(1)(j), (l) or (m) of the Act. Failure to comply with a responsibility can result in a sanction being imposed under Part 4.4 of the Act. However, some acts of an approved provider will not constitute failure to comply with those responsibilities (see section 1.13).
Completion of comprehensive risk assessments for all residents to determine the need for restraint.
To further develop the system for restraint review.
Immediate provision of appropriate height beds for all resident.
Development and exploration of alternatives to restraint.
Regular and consistent consultation with resident's relatives regarding the use of restraint.
Development of a system to identify, document and evaluate the use of chemical restraint.
The second serious risk report (T19) stated as to the use of bedrails:
Evidence of risk
Examination of documentation including eight residents' files, progress notes, care plans and daily action plans showed that residents who are restrained do not have risk or safety assessments prior to restraint being applied.
Eight residents' progress notes and restraint authorisation forms show that alternatives to restraint are not trialled, or alternative strategies implemented, prior to restraint being applied. Examination of eight residents' files showed that three of the residents' restraint authorisation forms are dated the same day of their admission, and one dated the day after admission.
…
Another resident with visual impairment, who is in a fixed height bed, was observed to have bedrails up during the two days of the audit. There was no physical restraint authorisation form in the resident's files, or any evidence of consultation with relatives or the resident. The services' policy states that 'Careful and minimal use of bedrails is the preferred option at this Nursing Home. Where bedrails are used (a clear reason must be documented), they should be released when care is given and the resident checked as necessary between times according to individual requirements this should be noted on the Nursing Care Plan'. The team found no instructions to check on this resident on the care plans. During the audit, the team noted that two residents were in bed all day with bedrails in situ. The team did not observe staff supervising the residents while they were restrained, other than during giving care, or feeding them.
Bedrails can be dangerous. One resident fell out of bed while one of the bedrails was up. The resident suffered a broken upper thighbone. Progress notes of another resident state that the resident 'wriggled to the end of the bed and was in danger of falling'. This resident also had bedrails up. Progress notes of a third resident show that the resident fell from a shower chair despite restraint being ordered.
14 of 20 residents are physically and or chemically restrained.
Examination of eight residents' restraint documentation in detail shows that evaluation and review is limited to monthly statements such as 'still needs bedrails for safety and protection'. There is no documentation of a thorough review and evaluation of the need for restraint in the restraint reviews or progress notes.
The team observed that 13 of the 20 residents' beds had bedrails attached. Two residents remained in bed all day had bedrails up on both days of the audit. Staff confirmed that all 13 residents have bedrails up at night, and when residents are in bed.
Thirteen of the twenty residents are in beds that are fixed in height. This does not allow residents safe access in and out of their beds. The team reviewed 24 incident reports from May to August, nine of these were incidents involving falls. Residents commented that they find it difficult to get out of the fixed height beds. The team noted that one resident had been recently transferred to a wind down bed 'to assist with transfers' (help get in and out of bed).
Staff reported that there are three staff on duty during the morning, including the Charge Nurse, and two in the evening and at night.
Consequence of risk
Residents are at serious risk of injury because they may be seriously injured climbing out over the bedrails while attempting to get out of bed. The height that they fall from is greater than the height that they would fall from if no bedrails were up, thus increasing both the seriousness of injury and the potential for injury. Residents may also wriggle down the bed and fall out the end of the bed attempting to escape from the restraint of the bedrails.
Lack of consultation prior to restraint leads to restraint without consent.
Lack of risk assessment, trials of alternatives, and regular review and evaluation of restraint leads to inappropriate and/or unnecessary restraint.
Residents in restraint are not adequately supervised, leading to increased risk of injury if residents are restless and attempt to escape from restraint.
Improvement outline considered appropriate by the Agency
Immediate education of all staff in restraint assessment, documentation and practices.
Immediate risk assessments of all 14 residents currently restrained to accurately assess their current need for restraint.
Further develop and consistently implement systems of review of restraint.
Ensure that staffing levels are adequate to include appropriate supervision of residents with restraint.
Regularly consult with residents and or relatives on restraint.
There was some challenge to the matters raised in those reports. Mr Awarsi the DON at Kenilworth and Ms Sharp denied many of the allegations both as to lack of care and supervision and lack of documentation. Further the Tribunal received an affidavit from Ms Poulter who is the daughter of Linda Collins. She stated that her mother broke her thigh while in St Georges Hospital and that for that reason she had requested that bedrails be used on her mother's bed at night. She also detailed occasions when she had renewed her authorisation of cotsides and explained why her mother's trial of a concave mattress had been unsuccessful. She said that she could not speak highly enough of the nursing care her mother was receiving at Kenilworth.
The issue for us to consider is whether the use of bedrails without fully documented assessment and trials of other alternatives constitutes "an immediate and severe risk to the safety, health or well-being of care recipients". We can readily accept that it is not best practice and constitutes non-compliance with appropriate standards of residential care. The question in these reviews however is whether we are satisfied that it constitutes "immediate and severe risk …" so as to allow for imposition of sanctions without prior notice under s. 67-1(2) of the Act.
There was a lack of agreement as to what constituted restraint between the professional witnesses asked to comment on their understanding of the term. Ms Koch was called as an expert witness for the respondent. She has set out in paragraph 3 of her affidavit her nursing and academic experience. Her particular academic interest is the physical restraint of elderly patients. She is currently writing a doctorial thesis on that topic. She was quite clear that the use of bedrails constitutes restraint, even when used to prevent falling. The only exception in her opinion was in situations where a person asked for them. She said that ten years ago restraint was commonly used but that aged care was moving exponentially away from its use, and now there are places that do not use restraints at all. She advanced the idea that elderly people with dementia had the right to take risks. She did not explain how one ascertains whether they wish to exercise that right. She also acknowledged that bedrail use was still very common.
Mr Monotti asked Ms Koch (Trans. 248):
In hospitals the use of bedrails is still very common, is it not, in Australia?---Yes, it is.
And particularly in the care of elderly people in hospitals?---Yes. Some acute hospitals have a policy that anyone over the age of 65 requires bedrails.
That is a policy, would you accept, as one which is related to the hospitals' duty of care to protect the patient against injury?---I would probably argue that it seems to be a tradition as opposed to being utilised under any evidence that it is the best practice you can offer.
But would you accept that hospitals which have that policy would be likely to have it in place by reason of concerns of protection of the resident against injury or the patient against injury?---I would assume that would be their argument, yes.
Ms Sharp is an expert witness called by the applicant. She stated that in her definition, if the prevention of injury were the only reason for using bedrails, it was not restraint. She went on to say that good practice involved documentation only if it were deemed to be restraint, thus supporting Mr Menere's argument. Ms Sharp stated that she had found the policy on restraint in the Kenilworth manual was not very clear, so the staff were not clear as to whether they were following the guidelines. She considered that Kenilworth policy was inadequate in its definition of restraint in that it did not define it. It therefore did not provide a clear guideline. Ms Sharp acknowledged that there were "lots" of risks associated with bedrails, the most common being to fall over them. Ms Hampel asked Ms Sharp if she accepted the definition in a document put out by the Nurse's Board of South Australia on restraint. Ms Sharp who comes from New South Wales said that she preferred the New South Wales publication as it states that restraint purely relates to the control of behaviour. Both those publications are set out as recommended reading in a Standards and Guidelines for Residential Aged Care Services Manual produced by the Department. It set out the following resources on restraint:
RESTRAINT
Report of the Ministerial Taskforce on Psychotropic Medication Use in Nursing Homes, Use of Restraint in Nursing Homes. Appendix 3. May 1997. NSW Health Department, 73 Miller Street, North Sydney NSW 2060. Ph: (02) 9391 9000.
Guidelines for the Use of Restraint in Nursing Homes. Nurses Board of South Australia, 200 East Terrace, Adelaide SA 5000. Ph: (08) 8223 2630.
Australian Society for Geriatric Medicine. Position Statement on Physical Restraint Use in the Elderly. Dr Leon Flicker. Australian Journal on the Ageing, 15, 1996.
The Tribunal received in evidence the three publications on restraint specified in the Manual. They do contain different definitions of physical restraint. They all suggest that the less use of physical restraint the better, but they do not advance that theory to the extent that the respondent's expert witnesses Ms Koch and Professor Garratt did. Flicker (published in 1996) writes that one of the major reasons for use of restraints is to "decrease the risk of falling in those patients who are able to initiate transfers but not in a safe manner". He adds later: "…the indication for the chronic use of restraints in the long term care setting is for the prevention of falls in the cognitively impaired patient". He then comments that the indications for restraint are far from clear and that it is surprising that "there is not a single randomised study reported in the literature, evaluating the efficacy of chronic use of physical restraints" for "the prevention of falls in the cognitively impaired patient". He concludes: "There has not been a valid study showing the efficacy of restraints and the recent literature has highlighted the possible deleterious effects."
The Report of the New South Wales Task Force deals mainly with chemical restraint but quotes Flicker's comments as set out above and refers to a decrease in use of restraint in nursing homes in the last decade and to an increase in the number of restraint free nursing homes. It suggests those are desirable trends. We accept that is the current expert view but we find there is still confusion as to definition among professionals in the field.
The New South Wales Task Force definition requires that the restriction be for behavioural purposes. It is as follows:
Physical Restraint: is the intentional restriction of a person's voluntary movement or behaviour by the use of a device or physical force for behavioural purposes. Restraints may include lap belts, table tops, posy restraints, bedrails, and waterchairs and deep chairs that are difficult to get out of."
That definition may well not apply to restraint use for the frail elderly who are "able to initiate transfers but not in a safe manner".
Ms Richards, a witness for the respondent, somewhat to our surprise, shared Ms Sharp's opinion that bedrails are not necessarily restraint. She said that when used for safety reasons, bedrails do not technically constitute restraint. She did not consider that a restraint authority was required in such cases, but she still considered that people requiring restraint needed assessment to show that the most appropriate measures were being used.
It is not difficult to appreciate that frail, fragile and elderly people, particularly those also suffering from confusion, are at risk of injury from falling, including falling from bed. Various strategies are used in an attempt to reduce that risk. One of those strategies is the use of some form of restraint such as bedrails. The Tribunal is of the opinion that any means to restrict a person's mobility, whether it is judged to be for that person's protection or to control their behaviour, constitutes restraint.
Bedrails are used in hospitals and nursing homes to restrict the movement of elderly people in an attempt to reduce injury associated with falling.
The Tribunal during the hearing expressed some reservations about whether the evidence established that less than minimal use of bedrails constituted "an immediate and severe risk of injury". We were then provided with three further articles on the issue. One was a study carried out by Hanger, Bell and Wood, titled, "An Analysis of Falls in the Hospital: Can We Do Without Bedrails?" The study was carried out in New Zealand in 1999 and states that no randomised trial of the use of bedrails had previously been carried out. The Hanger study is concerned with patients admitted in an assessment, treatment and rehabilitation unit for older people. The study found that:
…the introduction of an educational and policy program on bedrail use, together with physically removing rails from beds, was accompanied by a significant reduction in serious injuries to patients, mainly fewer head injuries. The reasons for this reduction are not clear, but it was not because of an overall reduction in the fall rate; rather the falls that did occur were less serious. One can speculate that a fall that occurs climbing over or around a bedrail is from a greater height (or more precarious position) and, thus, is more likely to result in a head injury.
We accept the findings of the study and the evidence of Professor Garratt. She set out her qualifications and experience in paragraph 4 of her affidavit of 9 November 2000. She currently works as a Director of Nursing at Vision Australia as well as holding a position as Adjunct Associate Professor of Nursing at the LaTrobe University School of Nursing. She said in her affidavit:
Risk management procedures entail the balancing of risk of danger to the resident from falling or risk from being restrained. Research suggests that if incorrect alternatives for safety are in place, the risk from being restrained is higher than the risk from falling.
The Tribunal finds that whatever the motive for restricting mobility, it is a form of restraint, and in some cases may be associated with the possibility of additional risk of injury. Furthermore, the concepts of restraint applied for safety, and restraint used to control behaviour are so interrelated that care staff and assessors alike in their evidence demonstrated difficulty distinguishing between them. The point is illustrated by the evidence of Ms Richards, the assessor responsible for the serious risk report made in relation to restraint by the use of bedrails following the review audit visit to Kenilworth on 2 and 3 March 2000. She observed that 18 out of 30 residents were restrained with bedrails. She conceded that this was usually at night. She wrote that the restraint was used inappropriately. When giving evidence she said that in all 18 cases the rails were being used for restraint (according to her understanding of the term) and not for safety. When it was pointed out to her that in the two cases she had commented on, about beds with broken height mechanisms, she had stated that bedrails were being used to prevent residents from falling, her confusion in the area was highlighted. In her earlier evidence she had agreed with Mr Monotti that if bedrails were used for safety, ie to prevent falling they were not restraint.
The findings in the review audit report of 14 March 2000 (T17) were challenged by Mr Awarsi who gave evidence at the last day of hearing. He is now the Care Manager at Kenilworth, but he did not work there in March 2000. However he is familiar with some of the patients referred to in that report and with their medical history and records. He did not accept the comments about there having been no assessment for restraint purposes in respect of some of the patients. As an example he produced records showing monthly restraint reviews in respect of one care recipient throughout 1998, 1999 and 2000 (Exhibit A4). That care recipient seems to have been referred to in T19.
We did not have time to allow Mr Awarsi to go through all the bulky files of progress notes at the hearing, to show the Tribunal whether similar documentation existed in respect of other residents mentioned in T16 and T19. That should have been done at the time he swore his affidavit and referred to in detail in the affidavit. He had difficulty working out to which residents the assessors were referring from their comments and descriptions.
The review audit report of 20 September (18) stated that:
Restraint is used for residents without risk or safety assessments, trials of alternatives have not been undertaken, and in some instances there is no authorisation.
The serious risk report (T19) detailed similar concerns about restraint documentations. Mr Awarsi disputed a number of statements in that report both in paragraph 4(v) of his affidavit and in evidence. Ms Hampel explained that it is acknowledged that the documentation has improved since September 2000, but claimed there were still significant problems at the time of the review.
Ms Sharp gave evidence that she had examined the records of 16 residents at Kenilworth, which extended over a 12 month period. She said that she accepted that the documentation at Kenilworth prior to and at the time of the September review audit was less than ideal. She spoke of there being a lot of inconsistencies in the records and she was emphatic about the need for them to be improved. She conceded that systemic problems with restraint issues could pose an immediate risk. She said that most of the system at Kenilworth came from the progress notes. It was her opinion that it did not matter where the information was, as long as staff knew where to look for it. Earlier in her evidence she had conceded that progress notes were for the purpose of keeping an historical record and that it took longer to read them than a summary. She said that some nursing staff were more likely to look at a care plan, but at Kenilworth they were more likely to be looking at progress notes. In her evidence Ms Koch said that progress notes are quite bulky and that is why there are care plans; they can alert agency nurses who come in.
The Tribunal agrees with Ms Koch on this point. Given that residents are nursed in shifts and on some occasions agency staff may be used, it is essential that information relevant to the residents' care can be transferred efficiently from one carer to another. Progress notes are too voluminous to enable this to happen. A care plan is necessary for the efficient transfer of information to take place with any degree of consistency. Without a risk assessment being documented and accessible it is not possible to demonstrate that it has taken place, or to know what the findings were. It cannot be used effectively if is buried somewhere in the notes.
We do not accept all the allegations as to inadequate documentation in the serious risk reports T16 and T19, but we do find that as at September 2000 there was a need for improvement in the documentation of restraint assessment, authorisation and review.
We also accept that there could have been more use of alternatives to bedrails such as more high/low beds. There is evidence of trials of concave mattresses.
The question is whether these matters satisfy us, standing in the Secretary's shoes that there was at the date of imposition of sanctions under s. 67-1(2) of the Act "an immediate and severe risk to the safety, health or well-being" of care recipients at Kenilworth.
The Hanger, Wood and Ball Study, which it must be remembered was only published last year, tends to support Professor Garratt's view of the use of bedrails however it is the first study which has compared falls and injury rates among the elderly with and without bedrails. We accept that Professor Garratt's opinions represent the leading edge in aged care nursing practice. Although it now appears that bedrails may not achieve all that is intended, the fact that there is evidence that they are often used in acute hospitals and are still widely used in nursing homes around the country makes it difficult to find that their use is associated with severe and immediate risk to the safety, health or well-being of care recipients. We find that there is risk associated with the use of bedrails but we are not satisfied that there is an "immediate and severe risk to … safety, health and well-being".
It is logical that risk assessment and trials of alternatives is good practice and, whilst not reducing the incidence of falls, may reduce the risk of serious injury in some cases. Ms Sharp gave evidence that documentation of risk assessment, trial of alternatives, and review appeared in Kenilworth's nursing notes, but that care plans and authority forms were absent or incomplete.
The Tribunal finds that this deficiency in the documentation may affect efficient communication and as such represents a non-compliance and the possibility of an increase in the risk of injury. However we are not able to conclude that this constitutes immediate and severe risk of injury.
We note that in Folder 2 T13, Ms Hughes, in respect of Belvedere, wrote on 15 February 2000 as to similar restraint issues:
I consider that the non-compliance does threaten, but does not present a serious risk to, the health, welfare or interests of care recipients. In particular the following non-compliance threatens the health, welfare or interests of care recipients:
the non compliance with Item 3.4 Living Environment Outcome relating to the use of restraints threatens the health and well being of residents as alternatives to restraints are not explored or options made available.
Further the assessors who attended Kenilworth on 2 and 3 March 2000 and who raised the restraint issues in their report only recommended monthly support visits in their review audit report (T18). That does not indicate that they had formed the view that the matters raised in their report constituted an immediate and severe risk to the safety of residents. It was not until 20 September 2000 that daily support visits were suggested (T20). As Mr Monotti pointed out, although monthly contact visits were suggested in March 2000 (T18) they did not take place.
Exhibit R4 which shows contacts with Kenilworth by the Agency shows that on 14 March 2000 the serious risk report (T16) was sent to Neviskia and to the Department. There were no support contact visits until 29 June 2000 and then the next visit was not for two months ie on 24 August.
That history does not indicate that the Agency or the Secretary had formed the opinion that the review audit indicated "an immediate and severe risk to the safety … of care recipients" at Kenilworth. We share that view. We find that there was evidence suggesting non-compliance with residential care standards which increased the risk to residents, but not to such an extent as to satisfy us that there was "an immediate and severe risk to safety, health or well-being".
Although the issues were taken more seriously in September 2000, so that there are now daily contact visits and we were told that there has been considerable improvement, the characterisation of the risk does not change. We are still not satisfied, for the reasons set out in paragraph 139, that there is an immediate and severe risk.
The matter of chemical restraint was not strongly relied upon. The evidence is that all medication with a sedative effect is prescribed by a doctor for medical conditions. It seems to be accepted that in those circumstances it is not properly described as chemical restraint. We accept Mr Awarsi's evidence that the man described in the serious risk report (T19), had been assessed by a psycho-geriatric team. We also note another example of such a team assessment by the Aged Psychiatry Assessment and Treatment Team is exhibited to Dr McColl's affidavit.
Where medication is medically prescribed, particularly where that is done by an expert medical team we find it is not properly described as chemical restraint. We find further that in general, where medication is administered to a care recipient in accordance with a doctor's prescription the administration of that medicine does not constitute an "immediate and severe risk to the safety … of the care recipient". Thus we are not satisfied that the matters as to chemical restraint constitute an immediate and severe risk to the safety, health and well-being of care recipients at Kenilworth.
There is an issue of fire safety raised in the serious risk report arising out of the September 2000 review audit (T19). The problems mentioned in that report concern the building and locks and keypads and issues of fire training.
The issues as to the building are the same issues that were dealt with in the January 2000 letter from the Metropolitan Fire and Emergency Services Board. We accept the evidence that at Kenilworth staff undergo annual fire training as required. We accept Ms Sharp's evidence at paragraph 12 of her affidavit that from her inspection of Kenilworth on 6 and 13 September 2000 she considers the allegations as to fire safety in the serious risk report to be without substance.
Ms Sharp stated:
The allegation that a night staff member would be unable to evacuate residents in the event of a fire or other emergency ignores the fact, which is recognised throughout the nursing home industry and in other similar facilities, that evacuations are not expected to be performed by staff of that facility, but are performed by emergency services which in the ordinary course attend promptly. There is a well known standard procedure which applies to nursing homes and all other similar institutions in Australia, under which particular actions are taken in a particular order. This system is as follows:
(a) First, remove residents from immediate danger.
(b) Secondly, alert emergency services.
(c) Thirdly, confine the fire if possible.(d)Proceed with evacuation if it is required. At this stage emergency services would be expected to be present to proceed with the evacuation.
Any expectation on the part of the assessors that this nursing home or any other nursing home ought to have sufficient staff on hand to evacuate residents in the case of an emergency is manifestly unreasonable. From my conversations with staff during the course of my visit, I was satisfied that all staff to whom I had spoken had received adequate education and training in relation to fire, security and emergency systems and procedures, and I observed that there were prominently displayed throughout the building notices giving clear information as to the service's fire policies and evacuation procedures. The Care Manager also showed me a sample of an orientation checklist for new staff, in the form of a questionnaire. I considered that this was satisfactory for the education of new staff in these respects. I was informed by the Care Manager that the most recent fire drill was conducted in January this year, and that the next fire drill has been booked for later this month, and that annual fire drills accord with State Health Department requirements. If these facts are correct, I would have no reason at all for criticising the arrangements at the nursing home for fire drills. The allegations that there is a serious risk in relation to matters of fire, security and other emergencies are without any proper foundation.
We formed the view that Ms Sharp is a sensible and practicable person with a great deal of relevant expertise in the field both as a DON in Aged Care and as a consultant to Nursing Homes and as an external contractor for the Agency. A full curriculum vitae is set out in Exhibit 1 to her affidavit. We prefer Ms Sharp's opinion to that of the Agency assessors. We find on the basis of her evidence that there is no "immediate and severe risk" due to fire safety issues.
We are not satisfied that because of the matters relied on in the two serious risk reports there is an "immediate and severe risk to the safety, health or well-being of care recipients" at Kenilworth. Thus the two decisions imposing sanctions under s. 67-1(2) must be set aside.
That does not of course mean that further action may not be taken to impose sanctions for non-compliance under s. 67-1(1). There is one matter which seems relevant to mention. It may prevent further litigation in the future. There does not seem, so far as we can see in the documents before us, to have been compliance with Principles 3.7 and 3.8 of the Accreditation Grant Principles prior to the imposition of sanctions. We have not noticed reference to the parties agreeing on a timetable to make improvements in matters in respect of which improvements would be necessary. There is a blank timetable at T18 p. 179 but there is a requirement in Principle 3.7(1) which seems to be a precondition to the sanctions procedure in Principle 3.8. The Tribunal during the hearing and earlier in these reasons expressed some concern about how effective sanctions are likely to be in achieving desired improvements. We see that the legislative scheme appears to expect there to be an agreed timetable for such improvements and for sanctions to only apply if the improvements are not achieved at the end of the timetable.
I certify that the 154 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Mr I.L.G. Campbell, MC, Member
Dr P.D. Fricker, MemberSigned: .....................................................................................
Personal AssistantDate/s of Hearing 20, 21, 22, 23, 24 November 2000,
7, 8, 13, 14 and 15 December 2000
Date of Decision 22 December 2000
Counsel for the Applicant Mr B. Monotti
Solicitor for the Applicant C.R. LloydCounsel for the Respondent Ms F. Hampel QC and Mr D. Murphy of Counsel
Solicitor for the Respondent Clayton Utz
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