Riverside Nursing Care Pty Ltd and Secretary, Department of Healt H and Aged Care
[2003] AATA 248
•17 March 2003
CATCHWORDS – HEALTH AND AGED CARE – nursing home – decision to revoke approval as a provider of Aged care – decision to revoke all places allocated to it under the legislation – whether nursing home complied with responsibilities under the Aged Care Act 1997 – whether serious risk to the safety, health or well-being of care recipients - whether appropriate to impose a sanction or sanctions – nature of sanctions to be imposed – decisions affirmed.
Aged Care Act 1997 ss. 2-1, 3-1, 7-1, 8-1, 8-3, 9-1, 10-1, 10-3, 10-4, 11-1, 11-2, 18-1, 18-2, 18-3, 18-4, 18-5, 41-3, 42-1, 42-4, 42-5, 43-3, 53-1, 54-1, 54-2, 54-3, 54-4,
54-5, 63-1, 65-1, 65-2, 66-1, 66-2, 67-1, 67-2, 67-3, 67-4, 67-5, 68-1, 68-2, 68-3,
68-4, 72-5, 80-1, 80-2, 85-1, 85-4, 85-5, 85-8, 86-1, 86-3, 92-5 and 96-1
Quality of Care Principles 1997 ss. 18.10, 18.11 and 18.12
Quality of Care Principles (No. 1) 1998
Sanctions Principles 1997 s. 22.3, 22.5, 22.7, 22-9,22-11, 22.12, 22.13, 22.14, 22.15, 22-17, 22.18, 22.19 and 22.20
Sanctions Amendment Principles 2001
Corporations Law ss. 436A and 445F; Part 5.3A
Commonwealth Authorities and Companies Act 1997
Accreditation Grant Principles 1998 ss. 2.5, 2.6, 2.7, 2.9 and 2.10
Accreditation Grant Principles 1999 ss. 3.1, 3.2, 3.3, 3.4, 3.5, 3.7, 3.8 and 4.2
National Health Act 1953 ss. 4, 40AA, 42, 44, 45E, 45EA, 45D, 45DA, 46D, 49A, 51, 51A, 51B, 54 and 61
Aged Care (Consequential Provisions) Act 1997 ss. 7 and 2
Record Keeping Principles 1997
Broadcasting and Television Act 1942 (Cth) s. 19.
Residential Care Standards ss. 2-1, 18.11 and 18.12
Safety, Rehabilitation and Compensation Act 1988 s. 93
Transport Accident Act 1986 (Vic) s. 93
Riverside Nursing Care Pty Ltd v Honourable Bronwyn Bishop [2000] FCA 1147, 63 ALD 27
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
Jebb v Repatriation Commission (1988) 80 ALR 329
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re McGourty and Repatriation Commission (1988) 9 AAR 87
Riverside Nursing Care Pty Ltd v Honourable Bronwyn Bishop [2000] FCA 434
Saitta Pty Ltd v Commonwealth [2001] FCA 817
Briginshaw v Briginshaw (1938) 60 CLR 366
Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Hardcastle v Commissioner of Police (1984) 53 ALR 593
McDonald v Director-General of Social Security (1984) 1 FCR 354
Australian Postal Commission v Burgazoff (1989) 10 AAR 296
Elleissy v Australian Telecommunications Commission (unreported, Federal Court, No G836 of 1988, 14 July 1989)
Barker v Australian Telecommunications Commission (1990) 95 ALR 72
Casarotto v Australian Postal Commission (1989) 10 AAR 191
Commonwealth v Muratore (1978) 141 CLR 296
Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291
Secretary, Department of Social Security v Lowe (1999) 92 FCR 26
Esso Standard Oil (Australia) Ltd v Bennett (1972) 46 ALJR 404
Prabowo v Republic of Indonesia and Others (1995) 133 ALR 701
Re Peterson and Australian Postal Corporation (1994) 19 AAR 9
Re Grime and Telstra Corporation (1994) 20 AAR 43
Fleming v Hutchinson (1991) 66 ALJR 211
Humphries v Poljak [1992] VR 129
Turner v Love and Another 21 MVR 314
Mobilio v Balliotis and Ors (unreported, No. 8101 of 1995, Court of Appeal)
Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2001] AATA 1063
DECISION AND REASONS FOR DECISION [2003] AATA 248
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2000/533
GENERAL ADMINISTRATIVE DIVISION )
ReRIVERSIDE NURSING CARE PTY LTD
Applicant
AndSECRETARY, DEPARTMENT OF HEALTH & AGED CARE
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Associate Professor J.H. Maynard (Member)
Date: 17 March, 2003
Place: Melbourne
Decision:The Tribunal affirms the decisions of the respondent dated 5 March, 2000.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 11 May, 2000, the applicant, Riverside Nursing Care Pty Ltd (“Riverside”) applied for review of decisions of a delegate of the respondent, the Secretary of the then Department of Health and Aged Care (now the Department of Health and Ageing) (“the Department”) (“the Secretary”) dated 5 March, 2000. One decision revoked Riverside’s approval as a provider under the Aged Care Act 1997 (“the Act”) and the other revoked all places allocated to it under that legislation. The delegate’s decision was confirmed by another delegate of the Secretary in a decision dated 4 May, 2000.
At the hearing, Riverside was represented by Mr Monotti with Mr Hanson of counsel and the Secretary by Mr Gunst QC with Ms Kennedy of counsel. A considerable amount of evidence, both oral and documentary, was given at the hearing over the course of the hearing of some five weeks. In view of its volume, we have not attempted to summarise it in these reasons. An order was made that:
“… until further order, publication of the names of any former patient of the Riverside Nursing Home situated at 68 Gladesville Boulevard, Patterson Lakes, Victoria or of any material tending to identify any such person be restricted to the members and staff of the Tribunal, to the parties and their legal representatives, to staff of the Aged Care Standards and Accreditation Agency, to officers of the Department of Health and Aged Care and, in so far as any such names and material are revealed during any oral evidence given by Ms Michelle Van Harten, to Ms Beth Thompson.”
THE ISSUES
There were four issues in this case. Together with their key sub-issues, they were:
the time at which the merits of the decision under review are to be considered;
whether Riverside complied with its responsibilities under Part 4.1 of the Act:
identification of those responsibilities;
whether either party carried an onus of proof;
the standard of proof; and
whether Riverside complied with the Residential Care Standards;
whether it was appropriate to impose a sanction or sanctions; and
the nature of the sanctions that should have been imposed.
THE WITNESSES AND MANUALS
Four relatives of residents gave evidence. In view of the confidentiality order that we have made, we have not set out their names or material identifying them. Apart from those witnesses whose evidence is affected by a confidentiality order, the witnesses who were called are grouped by organisation together with a brief statement identifying their position or role:
| Organisation | Name | Position or role in relation to Riverside |
| Riverside | Ms Allyson Taylor Mr Salo Howard Rabinowitz Ms Sandra May | Director of Nursing, nursing home Approved Provider, Riverside Declined appointment offered at nursing home but played a support role to Ms Taylor from 29 February, 2000. She chaired and attended residents and staff meetings from 2 March, 2000 until 7 March. On 3 March, she was engaged by Mr Lofthouse, the administrator, to be the nurse administrator at the nursing home. She spent approximately 37 hours at the nursing home in this period as well as being available on call on the telephone. |
| General medical practitioners | Dr Roy Francis Richards Dr Rodney Phillip Hain Dr John William Dickman | Treating GP of 2 residents at nursing home |
| The Aged Care Standards and Accreditation Agency Limited (“the Agency”) | Ms Veronica Susan Dockrell Mr David Wheeler Ms Wendy Bateman Ms Astrid Sophia Tolstoshev Ms Melanie Verena Hendrata | Quality Assessor Quality Assessor Quality Assessor Quality Assessor Quality Assessor |
| St Vincent’s Hospital (“St Vincent’s”) | Ms Susan Blake Dr Mary Josephine Waters Dr Michael Murray Dr Eve Finkelstein | Acting Manager, Service Development & Strategy Unit, Sisters of Charity Health Service Pathologist, Director of Microbiology Physician/Gerontologist, Consultant Physician at St George’s Health Service. Dermatologist but now works overseas in a position unassociated with St Vincent’s. |
| The Department | Ms Maree Bowman Mr Russell Williams Ms Jane Bailey | State Manager (Victoria) in 2000 and delegate of Secretary making decisions under review Acting Assistant Director, Compliance Senior Team Leader of the Complaints and Compliance Task Force |
| Unassociated with parties | Associate Professor Elizabeth Percival | Adjunct Associate Professor of Nursing, Flinders University |
| Associate Professor Sally Garratt | Adjunct Associate Professor of Nursing, La Trobe University |
In relation to a number of witnesses, their professional qualifications are not necessarily implicit in, or suggested by, the description of their position or role. Therefore, we have briefly noted relevant professional qualifications in relation to the following witnesses:
Ms Bateman:
Bachelor of Applied Science, Certificate of Gerontology and a Registered Nurse Division 1 (Exhibit 21).
Ms Dockrell:
Registered Nurse Division 1; Certificate of Intensive Care Nursing; Cardiac and Cardio Thoracic Nursing; Bachelor of Applied Science. Night Supervisor at a major gerontology care facility in Hobart comprising 120 beds for two years; and Senior Nurse Educator (post registration critical care course –10 years) (Exhibit 18).Ms Hendrata:
Ms Hendrata is a Registered Nurse Division 1 and has been a nurse since 1988.Ms Tolstoshev:
Degree in Applied Science Speech Pathology, Arts Degree and a Diploma in Education (Exhibit 31).Mr Wheeler:
Registered Psychiatric Nurse Division 1 (Exhibit 24).
In the course of the hearing, reference was made to a number of documents. For ease of reference, they were:
| Document | Origin |
| Accreditation Standards | Specify standards for the quality of care and quality of life for the provision of residential care on and after accreditation day i.e.1 January, 2001. Comprise standards for Management Systems, Staffing and Organisational Development, Health and Personal Care, Care, Residential Lifestyle and Physical Environment and Safe Systems Provided for in s. 54-1 of Part 4.1 and 4.3 of the Aged Care Act 1997. Made by the Minister as part of the Quality of Care Principles. |
| Accreditation Grant Principles 1998 | Set out the procedures to be followed by the accreditation body in assessing residential care services. Commenced 22 July, 1998 and intended to operate during the transitional period until, but not including, 1 January, 2001. Revoked by the Accreditation Grant Principles 1999 on 15 September, 1999. |
| Accreditation Grant Principles 1999 | Set out the procedures to be followed by the accreditation body in assessing residential care services. Commenced 15 September, 1999 and amended on 22 December, 2000 and intended to operate during the transitional period until, but not including, 1 January, 2001. |
| Allocation Principles | Together with Part 2.2 of the Aged Care Act 1997, the Allocation Principles regulate the allocation of places for the provision of aged care. Made by the Minister pursuant to s. 96-1 of the Aged Care Act 1997. |
| Documentation and Accountability Manual | First published in 1995 and revised in November, 1997. Prepared by the Department for use by all care staff employed in residential aged care facilities after 1 October, 1997. Addressed the process of care delivery and the documentation of that care in the context of accreditation. |
| Guidelines for the Control of Infectious Diseases | Commonly known as The Blue Book. Published by the Department of Human Services (Vic). Widely available and regarded as the “Bible of infection control”. |
| NH 20 forms | Form formerly required to be lodged by 31 December each year by Riverside as it received Commonwealth benefit under s. 40AA(6)(ce) of Part VA of the National Health Act 1953. Information provided in respect of the financial year ending 30 June that year. Information required included such as the hours worked by the DoN, registered nurses, enrolled nurses/aides/assistants and therapists/therapist’s assistants, the salaries, wages and allowances paid to nursing and personal care staff and for sessional, agency or contract staff, Riverside’s annual leave and sick leave liability and its other expenses including payroll tax and workers’ compensation premiums. |
| Quality of Care Principles | Specify care and services in respect of various aspects of aged care. Comprise the Accreditation Standards, the Residential Care Standards, Community Care Standards and Flexible Care Standards. Provided for in s. 54-1 of Part 4.1 and 4.3 of the Aged Care Act 1997. Made by the Minister pursuant to s. 96-1 of the Aged Care Act 1997 as the Quality of Care Principles 1997 and later amended them by virtue of the Quality of Care Principles (No. 1) 1998 with effect from 21 August, 1998. |
| Residential Care Standards | Specify standards for the quality of care and quality of life for the provision of residential care from 1 January, 1998 until 1 January, 2001. Standards deal with health and personal care, resident lifestyle and physical environment and safe systems. The standard for each consists of a Principle and the expected outcome for each Matter Indicator for the matter. Provided for in s. 54-1 of Part 4.1 and 4.3 of the Aged Care Act 1997. Made by the Minister as part of the Quality of Care Principles. |
| Sanctions Principles 1997 | Specify matters relevant to operation of sanctions process. Made by the Minister pursuant to s. 96-1 of the Aged Care Act 1997 with effect from 1 October, 1997. |
| The Standards and Guidelines for Residential Aged Care Services Manual | Issued in May, 1998 by the Department and the Aged Care Standards and Accreditation Agency. Developed to assist service providers to comply with their obligations under the Aged Care Act 1997. |
CHRONOLOGY
As a point of reference, we will set out a chronology of some significant events affecting the nursing home, its residents, its proprietors and those regulating its operations. We have made relevant findings of fact regarding these matters later in these reasons.
| Year(s) | Event |
| 1978-1999 | Riverside failed to lodge taxation returns. Other companies in Illawong group of companies also fail to lodge taxation returns in all or some of the years from 1985 to 1999. |
| 1989-1998 | Riverside late in lodging NH 20 forms. Overpayments raised and repaid. |
| 1993 | Declaration that nursing home had not reached care standards under National Health Act 1953.. Sanction imposed i.e. the non-payment of Commonwealth benefit in respect of any residents admitted on or after date of declaration. |
| 1 October, 1997 | Chapter 4 of the Aged Care Act 1997 relating to responsibilities of approved providers comes into operation. |
| 6, 7 and 13 May, 1998 | The Standards Monitoring Team visited the nursing home and concluded that the nursing home had met three of the outcomes but that action was required in relation to further four. Urgent action was required in relation to another 22. |
| 13 May, 1998 | Supreme Court of Victoria orders that Riverside be wound up. Mr Gregory Stuart Andrews appointed liquidator. |
| 28 July, 1998 | Mr Martyniuk resigns as director of Riverside and replaced by Mr Grinwald and Mr Irving. |
| 4 February, 1999 | Deed of Company Arrangement made among Riverside, Mr Gregory Andrews (as the Deed Administrator), Illawong Retirement Equity, Mr Grinwald and Mr Irving. It was made after the directors of Illawong Retirement Equity approached the Deed Administrator to implement a deed pursuant to Part 5.3A of the Corporations Law.. Riverside’s creditors approved the deed. Illawong Retirement Equity covenanted with the Deed Administrator that, on being requested by the Deed Administrator, it would contribute to Riverside such capital as would put the Deed Administrator with sufficient funds to make all the payments required by clause 8 of the Deed. Clause 8 required the payment of preferential creditors and debts and claims of Admitted Participating Creditors. The effect of clause 5 of the Deed was that, provided he did not lodge a proof of debt and did not give notice that he intended to prove his claim as a participating creditor, Mr Martyniuk was not bound by clauses 8, 9 and 10 relating to the proof and distribution as payment of debts. If he did not exercise that right , Mr Martyniuk had what was called a “special entitlement”.. Provided enforcement of his claim did not involve the Deed Administrator and did not in any way affect him in the performance of his duties, Mr Martyniuk’s special entitlement meant that his claim against Riverside survived as though the company were not subject to the Deed. |
| 13 and 15 April, 1999 | Assessment of nursing home by Agency. |
| 4 June, 1999 | Delegate of the Secretary, gave Riverside notice that it had not complied with its responsibilities under the Residential Care Standards prescribed under s. 54-1 of Part 4.1 and 4.3 of the Act. |
| 8 June, 1999 | Copy of the assessment of the nursing home conducted by the Agency conducted between 13 and 15 April, 1999 sent to Riverside on or before this date. |
| 8 June, 1999 | Riverside sent an Action Plan to the Agency. |
| 30 June, 1999 | Mr Andrews certified that the deed had been wholly effectuated and terminated it. |
| 26 and 27 October, 1999 | Agency’s assessment of nursing home. |
| 5 January, 2000 | Ms Taylor requested more staff. |
| 16 January, 2000 | Residents of Riverside bathed in water to which kerosene had been added. |
| 14 February, 2000 | Ms Taylor tendered her resignation as Director of Nursing at the nursing home with effect from 17 March, 2000. |
| 16 and 17 February, 2000 | Review audit at nursing home leading to First Serious Risk Report. |
| 18 February, 2000 | First Serious Risk Report prepared by Aged Care Standards and Accreditation Agency Limited (“the Agency”) of its review audit of 16 and 17 February, 2000. Conclusion was that the Agency had found evidence that the approved provider has not complied with the Residential Care Standards and that serious risk existed to the health, safety or well being of persons receiving care at the nursing home. |
| 22 February, 2000 | First Sanctions Decision by Secretary, or delegate, imposed sanctions on Riverside as the approved provider of the nursing home. Decision made on the basis that the problems at the nursing home were extremely serious and that there was an immediate and severe risk to the health, safety and well-being of the residents in the nursing home. |
| 23, 24 and 25 February, 2000 | Support Contact Visits by Agency; report prepared. |
| 26, 27 and 28 February, 2000 | Support Contact Visits by Agency; report prepared. |
| 28 February, 2000 | Agency advises Department of First Review Audit Report. |
| 29 February, 2000 | Ms Bowman responded to both of the Agency’s reports regarding its Support Contact Visits on 23, 24 and 25 February, 2000 and on 26, 27 and 28 February, 2000 in two separate letters dated 29 February, 2000. Each contained a copy of the relevant report. |
| 29 February, 2000 | Riverside responds to Department’s imposition of sanctions 22 and 29 February, 2000. |
| 29 February, 2000 | Riverside nominates Mr Chris Whitehead of CW Aged Care Consultants as administrator (interim) to be the approved provider in place of Mr Rabinowitz. |
| 29 February and 1 March, 2000 | Support Contact Visits by Agency; report prepared. |
| 2 March, 2000 | Second Serious Risk Report prepared by Agency following its review audit of 29 February, 2000 and 1 March, 2000 (“Second Serious Risk Report”). |
| 2 March, 2000 | Ms Bowman wrote to Mr Whitehead advising him that she would not make a decision regarding his appointment until he had given her a written summary of or description of the action that he proposed to take or to remedy Riverside’s non-compliance with its responsibilities under the Act. |
| 3 March, 2000 | Ms Bowman interviewed Mr Whitehead. |
| 3 March, 2000 | Mr Lofthouse appointed as voluntary administrator of Riverside after a resolution by Mr Irving and Mr Grinwald as directors. |
| 3 March, 2000 | Mr Lofthouse gave Ms Bowman written notice of his appointment and meets with her. |
| 5 March, 2000 | Second Sanctions Decision made revoking Riverside’s approval under Part 2.1 as an approved provider of aged care services and to revoke the allocation of all of the places allocated to Riverside. |
| 7 March, 2000 | Employment of staff at nursing home terminated. All residents had left the nursing home by that date. |
| 4 April, 2000 | Mr Grinwald resigns as a director of Riverside. |
| 16 June, 2000 | Riverside enters Deed of Arrangement. |
| 14 August, 2000 | Supreme Court orders appointment of receiver to Riverside. |
LEGISLATIVE SCHEME
The scheme of the Act
In general terms, the Act provides for the Commonwealth to give financial support through the payment of subsidies for the provision of aged care and through the provision of grants for other matters connected with the provision of aged care (s. 3-1). Its objects are more specifically set out in s. 2-1:
“(a) to provide for funding of aged care that takes account of:
(i)the quality of the care; and
(ii)the type of care and the level of care provided; and
(iii)the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and
(iv)appropriate outcomes for recipients of the care; and
(v)accountability of the providers of the care for the funding and for the outcomes for recipients;
(b)to promote a high quality of care and accommodation for the recipients of aged care services that meets the needs of individuals;
(c)to protect the health and well-being of the recipients of aged care services;
(d)to ensure that aged care services are targeted towards the people with the greatest needs for those services;
(e)to facilitate access to aged care services by those who need them, regardless of race, culture, language, gender, economic circumstance or geographic location;
(f)to provide respite for families, and others, who care for older people;
(g)to encourage diverse, flexible and responsive aged care services that;
(i)are appropriate to meet the needs of the recipients of those services and the carers of those recipients; and
(ii)facilitate the independence of, and choice available to, those recipients and carers;
(h)to help those recipients to enjoy the same rights as all other people in Australia;
(i)to plan effectively for the delivery of aged care services that:
(i)promote the targeting of services to areas of the greatest need and people with the greatest need; and
(ii)avoid duplication of those services; and
(iii)improve the integration of the planning and delivery of aged care services with the planning and delivery of related health and community services;
(i)to promote ageing in place through the linking of care and support services to the places where older people prefer to live.” (s. 2-1(1)).
In construing these objects, s. 2-1(2) provides that:
“… due regard must be had to:
(a)the limited resources available to support services and programs under this Act; and
(b)the need to consider equity and merit in accessing those resources.”
“Aged care”, for which the Act makes provision for the payment of subsidies, means either residential care, community care or flexible care or any combination of them (Schedule 1, clause 1). Only residential care is relevant in this case. It is defined as “residential care” as:
“… personal care or nursing care, or both personal care and nursing care, that:
(a)is provided to a person in a residential facility in which the person is also provided with accommodation that includes:
(i)appropriate staffing to meet the nursing and personal care needs of the person; and
(ii)meals and cleaning services; and
(iii)furnishings, furniture and equipment for the provision of that care and accommodation; and
(b)meets any other requirements specified in the Residential Care Subsidy Principles.” (s. 41-3(1))
The word “care” is defined to mean:
“… services, or accommodation and services, provided to a person whose physical, mental or social functioning is affected to such a degree that the person cannot maintain himself or herself independently.” (Schedule 1, clause 1)
Subsidies are paid under Chapter 3 but both Chapters 2 and 4 are relevant in determining their payment. Residential grants are paid under Chapter 5, which is not relevant in this case. Residential care subsidies are relevant in this case. They are payable under Part 3.1 of the Act. Subject to certain exceptions that are not relevant in this case, s. 42-1 provides that an approved provider is eligible for residential care subsidy in respect of a day if the Secretary is satisfied that, during that day, the approved holder holds an allocation of places, provides residential care to a care recipient in respect of whom an approval is in force under Part 2.3 as a recipient of residential care and the residential care service through which care is provided meets its accreditation requirement, if any, applying at that time (s. 42-1).
Approval of providers
Among other matters, Chapter 2 provides both for the approval of providers and for the allocation of places. Payments of a subsidy cannot be made under Chapter 3 to a person for providing aged care unless that person is approved under Part 2.1 (s. 7-1). Those who may be approved as a provider of aged care and the manner in which approval is sought are set out in that Part. The Secretary must approve a person as a provider if that person meets the criteria specified in s. 8-1(1). Among those criteria is that the Secretary is satisfied that the person is suitable to provide aged care (s. 8-1(1)(c)). In deciding whether a person is suitable to provide aged care, the Secretary must have regard to:
“(a) the suitability and experience of the applicant’s key personnel; and
(b)the applicant’s ability to provide, and its experience (if any) in providing, aged care; and
(c)the applicant’s ability to meet (and, if the applicant has been a provider of aged care, its record of meeting) relevant standards for the provision of aged care (see Part 4.1); and
(d)the applicant’s commitment to (and, if the applicant has been a provider of aged care, its record of commitment to) the rights of the recipients of aged care; and
(e)the applicant’s record of financial management, and the methods that the applicant uses, or proposes to use, in order to ensure sound financial management; and
(f)if the applicant has been a provider of aged care – its record of financial management relating to the provision of that aged care; and
(g)if the applicant has been the provider of aged care – its conduct as a provider, and its compliance with its responsibilities as a provider and its obligations arising from the receipt of any payments from the Commonwealth for providing that aged care; and
(h)any other matters specified in the Approved Provider Principles.” (s. 8‑3)
Unless an approved provider is a State or Territory, his, her or its “key personnel” are each of the following people:
“(a) a member of the group of people who are responsible for the executive decisions of the approved provider;
(c)any other person who is concerned in, or takes part in, the management of the approved provider;
(d)any person who is responsible for the overall nursing care provided, or to be provided, by the aged care service conducted, or to be conducted, by the applicant;
(e)any person who is responsible for the day-to-day operations of an aged care service conducted by the approved provider, whether or not the person is employed by the approved provider.
…” (s. 9-1(2))
A person who is responsible for the overall nursing care provided, or to be provided, within the meaning of s. 9-1(2)(c) must hold a recognised qualification in nursing (s. 9-1(3)).
Responsibilities of approved providers
Chapter 4 of the Act is headed “Responsibilities of approved providers”. Approved providers, s. 53-1 provides, “… have responsibilities in relation to aged care they provide through their aged care services.” The section then provides that those responsibilities relate to:
“·the quality of care they provide (see Part 4.1);
·user rights for the people to whom care is provided (see Part 4.2);
·accountability for the care that is provided (see Part 4.3).”
In so far as quality of care is concerned, the responsibilities of an approved provider are set out in Part 4.1 of the Act. Section 54-1 sets out the responsibilities and they are expanded upon in the remaining sections in the Part. The responsibilities of an approved provider in relation to the aged care it provides are:
“(a) to provide such care and services as are specified in the Quality of Care Principles in respect of aged care and the type in question;
(b)to maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met;
(c)to provide care and services of a quality that is consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles for the purposes of paragraph 56-1(1), 56-2(i) or 56-3(j);
(d)if the care is provided through a residential care service after the accreditation day – to comply with the Accreditation Standards made under section 54-2;
(e)if the care is provided through a residential care service before the accreditation day – to comply with the Residential Care Standards made under section 54-3;
(f)if the care is provided through a community care service – to comply with the Community Care Standards made under section 54-4;
(g)if the care is provided through the flexible care service – to comply with the Flexible Care Standards (if any), made under section 54-5, that apply to a flexible care service of that kind;
(h)such other responsibilities as are specified in the Quality of Care Principles.” (s. 54-1)
The “accreditation day” was 1 January, 2001 (Schedule 1, clause 1, 42-4(2) and Residential Care Subsidy Principles).
Of the responsibilities set out in s. 54-1, those set out in and ss. 54‑1(1)(a) and 54-1(e) appear on their face to be relevant in this case but require a little further consideration. Taking first s. 54-1(1)(a), it refers to the approved provider’s responsibility to provide the care and services specified in the Quality of Care Principles. Those principles are made by the Minister under s. 96-1. Sections 54-2 to 54-5 specify that the standards that may be set out in the Quality Care Standards i.e. the Accreditation Standards, the Residential Care Standards, Community Care Standards and Flexible Care Standards. Under s. 96-1, the Minister made the Quality of Care Principles 1997 (“Quality of Care Principles 1997”) setting out each of the four standards and later amended them by virtue of the Quality of Care Principles (No. 1) 1998 with effect from 21 August, 1998.
As s. 54-1(1)(a) requires that an approved provider provide such care and services as are specified in the Quality of Care Principles in respect of aged care of the type in question, only the Accreditation Standards and the Residential Care Standards appear, on the face of the section, to be relevant.
Taking first the Accreditation Standards, they are “… standards for quality of care and quality of life for the provision of residential care on and after the accreditation day” (s. 54-2). As the decisions we must review relate to matters before 1 January, 2001 and so before the accreditation day, Accreditation Standards are not, on their face, relevant. As an approved provider must comply with the Accreditation Standards in so far as he or she is providing residential care on and after 1 January, 2001, then, as a matter of practicality, he or she had to comply with them at some time before that date.
Section 18.9 of the Quality of Care Principles 1997 provides that:
“(1) The Accreditation Standards are intended to provide a structured approach to the management of quality and represent clear statements of expected performance. They do not provide an instruction or recipe for satisfying expectations but, rather, opportunities to pursue quality in ways that best suit the characteristics of each individual residential care service and the needs of its residents. It is not expected that all residential care services should respond to a standard in the same way.
(2) The Accreditation Standards apply equally for the benefit of each resident of a residential care service, irrespective of the resident’s financial status, applicable fees and charges, amount of residential care subsidy payable, agreements entered into, or any other matter.”
The four standards comprising the Accreditation Standards are set out in Schedule 2 to the Quality of Care Principles 1997 and comprise Management Systems, Staffing and Organisational Development, Health and Personal Care, Care, Residential Lifestyle and Physical Environment and Safe Systems. Within each Accreditation Standard is a paragraph describing the principle behind the standard and another setting out the intention of the standard. There is then set out the Matter Indicator and the Expected Outcome. An examination of the Accreditation Standards reveals that, apart from their numbering and a part dealing with Management systems, staffing and organisational development, its parts match those in the Residential Care Standards set out in Schedule 3 to the Quality of Care Principles 1997. Those parts are Health and personal care, Residential lifestyle and Physical environment and safe systems match the Residential Care Standards.
Under s. 54-1(1)(e) of the Act, an approved operator had to comply with Residential Care Standards made under s. 54-3 where residential care was provided before the accreditation day. Residential Care Standards are standards for the quality of care and quality of life for the provision of residential care before the accreditation day (s. 54-3(1)). Examples of matters with which they might deal are health and personal care of care recipients, the lifestyle of care recipients and safe practices and the physical environment in which residential care is provided (s. 54‑3(2)).
As we have said, Residential Care Standards were formulated as part of the Quality of Care Principles 1997 (ss. 18.10 and 18.11 and Schedule 3) as amended. Except for 6 provisions relevant in this case, they commenced on 1 October, 1997. Items 1.1, 1.3, 2.1, 2.3, 3.1 and 3.3 of Schedule 3 commenced on 1 January, 1998. These items are concerned with the Matter Indicators of continuous improvement and education and staff development.
Section 18.10 of Part 4 of the Quality of Care Principles 1997 provides that the Residential Care Standards “… are standards for the quality of care and quality of life for the provision of residential care before the accreditation day” (i.e. 1 January, 2001). They deal with the following matters: health and personal care, resident lifestyle and physical environment and safe systems (s. 18.11(2)). The standard for each matter consists of the Principle and “the expected outcome for each matter indicator for the matter” (s. 18.11(3))
Section 18.12 of the Quality of Care Principles 1997 provides that:
“(1) The Residential Care Standards are intended to provide a structured approach to the management of quality and represent clear statements of expected performance. They do not provide an instruction or recipe for satisfying expectations but, rather, opportunities to pursue quality in ways that best suit the characteristic of each individual residential care service and the needs of its residents. It is not expected that all residential care services should respond to a standard in the same way.
(2)The Residential Care Standards apply equally for the benefit of each resident of a residential care service, irrespective of the resident’s financial status, applicable fees and charges, amount of residential care subsidy payable, agreements entered into, or any other matter.”
The Principles specified in Schedule 3 were:
“Principle: Residents’ physical and mental health will be promoted and achieved at the optimum level in partnership between each resident (or his or her representative) and the health care team.
| Col. 1 Item | Column 2 Matter Indicator | Column 3 Expected Outcome |
| 1.1 | Continuous improvement | The organisation actively pursues continuous improvement |
| 1.2 | Regulatory compliance | The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about health and personal care |
| 1.3 | Education and staff development | Management and staff have appropriate knowledge and skills to perform their roles effectively |
| 1.4 | Clinical care | Residents receive appropriate clinical care |
| 1.5 | Specialised nursing care needs | Residents’ specialised nursing care needs are identified and met by appropriately qualified nursing staff |
| 1.6 | Other health and related services | Residents are referred to appropriate health specialists in accordance with the resident’s needs and preferences |
| 1.7 | Medication management | Residents’ medication is managed safely and correctly |
| 1.8 | Pain management | All residents are as free as possible from pain |
| 1.9 | Palliative care | The comfort and dignity of terminally ill residents is maintained |
| 1.10 | Nutrition and hydration | Residents receive adequate nourishment and hydration |
| 1.11 | Skincare | Residents’ skin integrity is consistent with their general health |
| 1.12 | Continence management | Residents’ continence is managed effectively |
| 1.13 | Behavioural management | The needs of residents with challenging behaviours are managed effectively |
| 1.14 | Mobility, dexterity and rehabilitation | Optimum levels of mobility and dexterity are achieved for all residents |
| 1.15 | Oral and dental care | Residents’ oral and dental health is maintained |
| 1.16 | Sensory loss | Residents’ sensory losses are identified and managed effectively |
| 1.17 | Sleep | Residents’ are able to achieve natural sleep patterns |
Principle: Residents retain their personal, civic, legal and consumer rights, and are assisted to achieve active control of their own lives within the residential care service and in the community.
| Col. 1 Item | Column 2 Matter Indicator | Column 3 Expected Outcome |
| 2.1 | Continuous improvement | The organisation actively pursues continuous improvement |
| 2.2 | Regulatory compliance | The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about resident lifestyle. |
| 2.3 | Education and staff development | Management and staff have appropriate knowledge and skills to perform their roles effectively. |
| 2.4 | Emotional support | Each resident receives support in adjusting to life in the new environment and on an ongoing basis |
| 2.5 | Independence | Residents are assisted to achieve maximum independence, maintain friendships and participate in the life of the community within and outside the residential care service |
| 2.6 | Privacy and dignity | Each resident’s right to privacy, dignity and confidentiality is recognised and respected |
| 2.7 | Leisure interests and activities | Residents are encouraged and supported to participate in a wide range of interests and activities of interest to them |
| 2.8 | Cultural and spiritual life | Individual interests, customs, beliefs and cultural and ethnic backgrounds are valued and fostered |
| 2.9 | Choice and decision-making | Each resident (or his or her representative) participates in decisions about the services the resident receives, and is enabled to exercise choice and control over his or her lifestyle while not infringing on the rights of other people |
| 2.10 | Resident security of tenure and responsibilities | Residents have secure tenure within the residential care service, and understand the rights and responsibilities |
Principle: Residents live in a safe and comfortable environment that ensures the quality of life and welfare of residents, staff and visitors
| Col. 1 Item | Column 2 Matter Indicator | Column 3 Expected Outcome |
| 3.1 | Continuous improvement | The organisation actively pursues continuous improvement |
| 3.2 | Regulatory compliance | The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about physical environment and safe systems |
| 3.3 | Education and staff development | Management and staff have appropriate knowledge and skills to perform their roles effectively |
| 3.4 | Living environment | Management of the residential care service is actively working to provide a safe and comfortable environment consistent with resident’s care needs |
| 3.5 | Occupational health and safety | Management is actively working to provide a safe working environment that meets regulatory requirements |
| 3.6 | Fire, security and other emergencies | Management and staff are actively working to provide an environment and safe systems of work that minimise fire, security and emergency risks |
| 3.7 | Infection control | An effective infection control program |
| 3.8 | Catering, cleaning and laundry services | Hospitality services are provided in a way that enhances residents’ quality of life and the staff’s working environment |
Allocation of places
Even if a person is an approved provider, a subsidy may only be paid to that person under Chapter 3 for providing aged care in respect of which a place has been allocated (s. 11-1). The allocation of places is the subject of Part 2.2 of the Act and is also the subject of the Allocation Principles made by the Minister for Health and Aged Care (“Minister”) under s. 96-1 (s. 11-2). Part 2.2 deals with matters such as the Commonwealth’s planning its allocation of places, how people apply for allocations and how they are decided, the transfer of allocations and the variation of conditions for the allocations of places. Division 18 of Part 2.2 is concerned with when allocations cease to have effect. Of relevance in this case is s. 18-1(1), which provides that the allocation of a place ceases to have effect if either of the following happens:
“(a) the place is relinquished (see section 18-2);
(b)the allocation is revoked under section 18-5 or Part 4.4.”
Cessation of approvals and allocations by relinquishment or revocation
Cessation of approval as a provider
Approval as a provider of aged care ceases in the circumstances set out in s. 10-1. Those circumstances are:
“(a) the approval lapses under section 10-2; or
(b)the approval is revoked under section 10-3 or 10-4; or
(c)the period (if any) to which the approval is limited under subsection 8‑1(3) expires; or
(d)the approval is revoked under Part 4.4.”
Revocation is relevant in this case. Under Part 2-1, it may occur on the request of the approved provider (s. 10-4) or on the initiative of the Secretary. If the latter, the Secretary may revoke the approval in the circumstances set out in s. 10‑3. Among those is the Secretary’s being satisfied that the approved provider has ceased to be suitable for approval (s. 10-3). Before being so satisfied, the Secretary is required to have regard to the matters set out in s. 8-3 in relation to the approved provider (see paragraphs 11 above). We will return to the revocation of an approval under Part 4.4 below.
Cessation of allocations
If an approved provider relinquishes an allocated place, it either no longer conducts an aged care service that includes that place or no longer includes that place in an aged care service that continues to be conducted. It does not mean that the place has been transferred. (Schedule 1, clause 1) The manner in which an approved provider relinquishes places is the subject of s. 18-2.. Among other things, the approved provider must set out his, her or its “… proposals for ensuring that care needs are appropriately met for those care recipients (if any) who are being provided with care in respect of the places to be relinquished” (s. 18-2(e)). Those proposals must deal with the matters specified in the Allocation Principles (s. 18-2(3)). The Secretary must decide whether the proposals are satisfactory and may take certain steps if they are not (s. 18-3). An approved provider must not relinquish allocated places in respect of which care recipients are being provided with care without complying with any proposal accepted by the Secretary under s. 18-3 (s. 18-4).
Revocation of allocations is also the subject of s. 18-5 and Part 4.4. Section 18-5 provides the means by which the Secretary may revoke the allocation of places if the approved provider has not, for a continuous period of 12 months, or such other period as is set out in the Allocation Principles, provided care in respect of that place. We will consider revocation under Part 4.4 in the following paragraphs.
Revocation of an approval as a provider or of allocation of places under Part 4.4
Part 4.4 sets out the consequences of an approved provider’s not complying with its responsibilities under Part 4.1, 4.2 or 4.3 of the Act. In general terms, those consequences include the imposition of sanctions, undertakings in lieu of sanctions or agreements to undertake specified courses of action.
Revocation of an allocation may also occur under Part 4.4 as it may in the case of the approval of the provider of aged care. That part provides that the Secretary may impose sanctions if:
“(a) the approved provider has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3; and
(b)the Secretary is satisfied that it is appropriate to impose sanctions on the approved provider (see section 65-2); and
(c)the Secretary complies with the requirements of Division 67.” (s. 65-1)
In deciding whether or not to impose sanctions in respect of an approved provider’s non-compliance with his, her or its responsibilities, the Secretary must consider:
“(a) whether the non-compliance is of a minor or serious nature;
(b)whether the non-compliance has occurred before and, if so, how often;
(c)whether the non-compliance threatens the health, welfare or interests of care recipients;
(d)whether the approved provider has failed to comply with any undertaking to remedy the non-compliance;
(e)any other matters specified in the Sanctions Principles.” (s. 65-2)
The sanctions that may be imposed by the Secretary include:
“(a) revoking or suspending the approved provider’s approval under Part 2.1 … as a provider of aged care services;
(b)restricting the approved provider’s approval under Part 2.1 as a provider of aged care services to aged care services that are being conducted by the approved provider at the time the sanction is imposed;
(c)restricting the approved provider’s approval under Part 2.1 as a provider of aged care services to either:
(i)care recipients to whom the approved provider is providing care at the time the sanction is imposed; or
(ii)care recipients other than those to whom the approved provider commenced providing care, through one or more specified aged care services, after the time the sanction is imposed;
(d)revoking or suspending the allocation of some or all of the places allocated to the approved provider under Part 2.2;
(e)varying the conditions to which the allocation of some or all of those places is subject under section 14-5;
(f)prohibiting the further allocation of places under Part 2.2 to the approved provider;
(g)…
(h)…
(i)…
(j)…
(k)…
(l)such other sanctions as are specified in the Sanctions Principles.” (s. 66‑1)
If revocation of an approved provider’s approval as a provider of aged care services is imposed as a sanction, the revocation does not take effect if two things happen. The first is that the Secretary specifies in the notice imposing the sanctions that the sanctions will not take effect if the approved provider agrees to a course of action specified in the notice (s. 66-2(1)(a)). The second is that the approved provider so agrees within the specified time (s. 66-2(1)(b)). The courses that may be specified are set out in the remainder of the sub-section and are:
“(i) providing, at its expense, such training as is specified in the notice for its officers, employees and agents;
(ii)providing such security as is specified in the notice for any debts owed by the approved provider to the Commonwealth;
(iii)appointment by the approved provider, in accordance with the Sanctions Principles, of an adviser approved by the Commonwealth to assist the approved provider to comply with its responsibilities;
(iv)appointment by the approved provider, in accordance with the Sanctions Principles, of an administrator approved by the Commonwealth to administer an aged care service in respect of which the approved provider has not complied with its responsibilities;
(v)transferring some or all of the places allocated to the approved provider under Part 2.2 to another approved provider;
(vi)such other matters as are specified in the Sanctions Principles”. (s. 66‑2(1)(a))
The Sanctions Principles 1997 (“Sanctions Principles 1997”), which were made pursuant to s. 96-1 of the Act and came into operation on 1 October, 1997, set out the circumstances in which the Secretary might approve an appointment of a person nominated by an approved provider as an adviser. The provisions have since been amended by the Sanctions Amendment Principles 2001 but those amendments are not relevant. If the Secretary gave an approved provider a notice specified in s. 66-2(1) of the Act and the approved provider agreed to nominate a proposed adviser, the nomination had to be made within 14 days. The Secretary then had to decide whether to approve or refuse to approve the appointment within 14 days of receiving his or her nomination (Sanctions Principles, 1997, s. 22.7(1)). He or she may only approve the appointment if satisfied that the person meets the eligibility criteria for appointment, has a sufficient understanding of the issues that need to be addressed to remedy non-compliance and has complied with any request he or she has made of the person under s. 22.7(2) (s. 22.7(3)). That request is to provide a summary or description of the advice, or type of advice, that the person nominated proposes to give to the approved provider to assist the approved provider to comply with its responsibilities under the Act. In order to be eligible, a person must have had:
“(a) … at least 3 years’ experience in senior positions in managing, or providing professional advice and support to, an aged care service or similar undertaking; and
(b)has not been one of the key personnel of an approved provider whose approval under Part 2.1 of the Act has been revoked; and
(c)has not been one of the relevant personnel of a body whose application for approval as a provider of aged care has been refused; and
(d)has not been convicted, within 3 years before the proposed date of the appointment, of an offence punishable by imprisonment of 1 year or longer.” (Sanctions Principles 1997, s. 22.5)
“Key personnel” are those people coming within the descriptions in s. 9-1(2) of the Act (Sanctions Principles 1997, s. 22.3(1)).
Within seven days of the Secretary’s making a decision to regarding the person nominated, he or she must notify the approved provider of that decision (s. 22.7(4)) and may ask the approved provider to nominate another person (Sanctions Principles 1997 s. 22.9(1)).
The Sanctions Principles 1997 also provided for the appointment of an administrator instead of revocation. If a person were to be eligible for appointment as an administrator, he or she had to meet the same standards as those set for an adviser (Sanctions Principles 1997, s. 22.11). His or her appointment had to be approved by the Secretary, who followed a similar procedure to that prescribed for the nomination of an adviser (Sanctions Principles 1997, ss. 22.12 to 22.15).
The procedure for the imposition of sanctions is the subject of Division 67 of Part 4.4. Section 67-1 provides that the Secretary must not impose sanctions on an approved provider for non-compliance with one or more of its responsibilities under Part 4.1, 4.2 or 4.3 unless the Secretary has completed each of the steps set out in s. 67-1(1). Those steps include giving the approved provider notice of non-compliance, a notice of intention to impose sanctions or to remedy the non-compliance or both and notice of the Secretary’s decision whether to impose sanctions. Each notice is detailed in following sections in the Act.
The Secretary may give an approved provider notice of his or her intention to impose sanctions in respect of its non-compliance with its responsibilities under Part 4.1, 4.2 or 4.3. He or she may do that if the approved provider has not made any submissions addressing the issues in response to a notice given to him, her or it under s. 67-2 or has made submissions but are unsatisfactory for one of the reasons specified in s. 67-3(1)(b)). The notice must set out the details included in s. 67-4(2) and the Secretary is required to consider any submissions made by the approved provider.
If the Secretary considers that the submissions provided by the approved provider pursuant to a notice under s.67-2 propose appropriate action to remedy the non-compliance, set out sufficient reason for the non-compliance or are otherwise satisfactory, the Secretary may give the approved provider a notice to remedy the non-compliance with his, her or its responsibilities under Part 4.1, 4.2 or 4.3 (s. 67-4(1)). That notice must inform the approved provider that, within 14 days after receiving the notice, or within a shorter period specified in the notice, it must give the Secretary a written undertaking to remedy the non-compliance. It must also inform the approved provider that the Secretary may impose sanctions on the approved provider if the undertaking is not given or complied with (s. 67-4(2)). The undertaking must be in the form set out in s. 67-4(3).
The Secretary must give the approved provider written notification of whether he or she intends to impose a sanction for non-compliance with responsibilities under Part 4.1, 4.2 or 4.3 (s. 67-4(1)). If a sanction is to be imposed, the Secretary must give the approved provider a notice setting out the nature of the non-compliance, the sanction to be imposed, the consequences of the imposition of the sanction, the sanction period and the reasons for the sanction’s imposition (s. 67‑5(2)). If the Secretary decides not to impose a sanction, the notice must specify the nature of the approved provider’s non-compliance and the reasons for not imposing a sanction (s. 67-5(3)).
While the notices to which we have referred are the usual procedure, all but the notice given under s. 67-5 of the Secretary’s decision on whether to impose sanctions may be dispensed with. The effect of s. 67-1(2) is that all but that notice may be dispensed with if:
“… the Secretary is satisfied that, because of the approved provider’s non-compliance, there is an immediate and severe risk to the safety, health or well-being of care recipients to whom the approved provider is providing care.”
The Full Court of the Federal Court has held that s. 67-1(2), when read with ss. 67-1, 67-2 and 67-3, clearly excludes the rules of natural justice when the Secretary is satisfied that there is an immediate and severe risk to the safety, health or well being of care recipients (Riverside Nursing Care Pty Ltd v Honourable Bronwyn Bishop [2000] FCA 1147, 63 ALD 27, Ryan, Marshall and Emmett JJ). Their Honours went on to explain why that should be so:
“12 There are good policy reasons why, in the circumstances contemplated by s 67-1(2), the right to be heard should be excluded. The exclusion takes place only if the secretary is satisfied that there is an immediate and severe risk to the safety, health or well-being of care recipients. The object of excluding the steps referred to in s 67-1(1) in such circumstances is to ensure that the taking of those steps does not occasion a delay which might imperil the safety, health or well-being of care recipients. Any delay resulting from allowing an approved provider to exercise a common law right to be heard could jeopardise the safety, health or well being of care recipients. There would be no utility in excluding the steps contemplated by s 67-1(1) if a common law right to be heard remained.”
In general terms, a sanction imposed for non-compliance with responsibilities under Part 4.1, 4.2 or 4.3 remains in effect until either the sanction period determined under s. 68-2 ends or the Secretary decides under s. 68-3 that it is appropriate for the sanction to be lifted (s. 68-1(1)). Those general provisions do not apply to sanctions revoking the approved provider’s approval under Part 2.1 (revocation of approved provider’s approval) or 2.2 (revocation of allocation of places), revoking the extra service status of a residential care service (or a distinct part of a residential care service) conducted by an approved provider, revoking the certification of the residential care service in respect of which the approved provider has not complied with its responsibilities or requiring repayment of some or all of any grants paid to the approved provider under Chapter 5 in respect of an aged care service in respect of which the approved provider has not complied with its responsibilities (s. 68-1(2)). The length of any sanction period is determined by the Secretary having regard to any matters specified in the Sanctions Principles (s. 68-2).
The Sanctions Principles 1997 specify that the Secretary must have regard to the following matters in determining the length of a sanction period:
“(a) whether the non-compliance is of a minor or serious nature; and
(b)whether the non-compliance has happened before, and, if so, how often; and
(c)whether the non-compliance threatens or threatened the health, welfare or interests of care recipients; and
(d)whether the approved provider has failed to comply with any undertaking to remedy the non-compliance; and
(e)the period likely to be needed to establish whether any improvement in compliance can be sustained.” (Sanctions Principles 1997, s. 22.17)
An approved provider may apply to the Secretary for the sanction to be lifted (s. 68-4). In deciding whether or not to lift it, the Secretary must have regard to whether the approved provider is complying with its responsibilities under Parts 4.1, 4.2 and 4.3 and any other matter specified in the Sanctions Principles. Under the Sanctions Principles 1997, the Secretary must have regard to the matters specified in s. 22.17 in deciding whether it is appropriate to lift a sanction and the requirements that must be met by an application to lift a sanction (ss. 22.18 and 22.19). In addition, he or she must have regard to whether any changes made by the approved provider are likely to result in a sustained improvement in the approved provider’s compliance with his, her or its responsibilities (s. 22.19(b)). Among the matters that the application must deal with are what the approved provider has done to remedy non-compliance for which the sanction was imposed, any assessment carried out while the sanction has been in effect, staffing and organisational development against the Accreditation Standards, consultations with staff and care recipients or their relatives and the approved provider’s proposals for sustaining its compliance with its responsibilities (Sanctions Principles 1997, s. 22.20).
The process of assessing approved provider’s compliance with obligations
In view of these findings, we have concluded that an indefinite period would have been required to get the nursing home to a stage where its non-compliance had been rectified and a further period beyond that to establish whether compliance could be sustained.
We are satisfied that Riverside was a nursing home that was on a list maintained by the Kingston Centre indicating that it was a home with the imprimatur of the Victorian Government. Some of the residents’ relatives who gave evidence had been guided by that list. That it could be on that list and yet be in non-compliance with its responsibilities first under the NH Act and then under the Act and to be in non-compliance to an extent that the health, welfare of safety of its residents is threatened is a matter for deep conjecture. Matters that require contemplation are the manner in which information is communicated from the Department to relevant State authorities. Also requiring consideration is the inter-relationship among three matters: the community’s need for nursing home places, the cost of providing places that meet the standards specified under the Act and the understandable need of private enterprise, which provides many of those nursing home places, to operate profitably. Those three matters are not always compatible with each other and do not, as illustrated in this case, always lead to an outcome that meets the needs of one of the most vulnerable groups in the community i.e. those who can no longer live independently. The Tribunal is not, however, an appropriate forum to consider such matters as we are limited to the matters within our jurisdiction.
Also requiring consideration, but again outside our jurisdiction, is the marrying of funding with a system that requires non‑compliance to be reported but does not appear to assist a nursing home in meeting its obligations. Ms Dockrell said that the role of the Agency is not prescriptive and it is not its role to draw the attention of nursing staff on the floor to the needs of residents even if those needs are immediate (transcript, page 1595). If that is indeed its role, it is a system that values its system over the health, welfare and interests of the residents of nursing homes. On the one hand, it leaves at risk the nursing home’s residents while the Agency assessments are undertaken, reports prepared and decisions made by the Department. On the other, it does not provide “hands on” guidance to a nursing home as to how it may rectify its non-compliance. In other words, the system that has been put in place is not directed to accreditation as that word is generally understood by accreditation bodies or in the Manual issued by the Department (see paragraph 65 above). Accreditation as it is generally understood is directed to assisting the public, the users and the government that they will have a service of an appropriate quality. The standard setting authority, the accrediting authority, the payment authority and the inspecting or compliance authority are separate bodies operating independently so that each can carry out its function appropriately and the system as a whole can ensure that the public receives services of an appropriate quality. Having heard from Ms Bowman and considered the various documents to which we have referred, we have formed the view that the necessary separation of the four functions is absent. Ms Bowman held the position of Manager of the Department in Victoria and was the decision-maker required to consider whether or not Riverside had complied with its responsibilities. At the same time, she was privy to the day to day oral assessments of the Agency, staff of the Department and for whom she was responsible were located at the nursing home and, some time around 24 February, 2000, was involved in looking at alternative accommodation for the residents of the nursing home. All this is happening while she must consider not only the Agency’s reports but information put to her by Riverside and reach her decision on all of the information. We do not question that she tried to do that. What we do say is that the appearance of Ms Bowman’s being a decision-maker who brings an independent mind to the issues and considers all information from all sources has been severely compromised by the very system within which she is required to operate. The Manual prepared by the Department and the Agency fails to distinguish between what is a guideline and what is required by the Act and the Residential Care Standards. It leads to confusion and would seem to the product of a failure to delineate between the roles of standard setting and of inspection and compliance checks. So too would the naming of the Agency’s visits as “support visits” when they are in fact visits to monitor compliance. They were certainly not to support the nursing home in any way. Indeed, there was no indication in the evidence that the Agency ever fulfilled in relation to the nursing home or to Riverside the second of the four core functions it identified in its Annual Report 1998-1999, which the Tribunal requested from the Minister at the hearing and which was subsequently forwarded to it:
“Assistance to services to improve service quality through education and training, information dissemination and identification of best practice to promote and encourage better quality aged care”
Although the matters in the previous two paragraphs are matters that concern us, they are not relevant in reaching our decision as to whether it was appropriate to impose a sanction on Riverside for its non-compliance under Part 4.1.. The matters we have identified in all but the preceding two paragraphs are relevant and lead us to conclude that it was appropriate given the extent of the non-compliance, its repetitive and serious nature, the serious risk to which it exposed the residents of the nursing home and its being unlikely that compliance could be effected in any reasonable time given its financial situation and its ongoing dispute with the landlord of the nursing home.
What sanctions should have been imposed?
This is a matter that we can deal with very shortly. In view of our findings, we consider that the sanctions of revocation of Riverside’s approval as a provider under the Act and of revocation of all places allocated to it were the sanctions that should have been imposed. Riverside’s non-compliance was on-going and had been for many years both under the NH Act and the Act. Given its management and financial exigencies, was unlikely to be able to rectify that non-compliance in the near future. The consequences of that non-compliance were of a serious nature threatening the health, welfare or interests of the residents. Indeed, as we find below, the consequences were such that they posed an immediate and severe risk to the safety, health or well-being of care recipients. Riverside could not meet its responsibilities under the Act and so could not provide the personal care or nursing care required by the Act for those whose physical, mental or social functioning is affected to such a degree that he or she cannot maintain himself or herself independently.
We can well understand the upset that was caused to the residents and to their relatives as a result of the imposition of those sanctions. They led inevitably to the closure of the nursing home. For all of its shortcomings, it was the place in which they lived and regarded as their home. It was the place to which, after due investigation of all available nursing homes, they or their relatives had entrusted their care.
Given the objects of the Act, though, we do not consider that considerations of that sort can sway the manner in which the discretion is exercised. In the previous decision in Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2001] AATA 1063:
“…The essential objects of the Act are to provide for planned distribution of a limited amount of funds to undertakings that provide residential, community or flexible care (i.e. aged care) and to provide for the distribution in such a way that it meets a number of needs or objects. Among those needs and objects include the protection of the health and well-being of the recipients of aged care services. It is arguable that this object would influence the matters that would need to be taken into account in deciding whether or not to cancel an approval or an allocation. It is arguable that the need to protect the health and well-being of the recipients of aged care services would mean that regard would need to be had to their health and well-being were the approval and allocations of their aged care provider to be cancelled. Arguably, that would cover not only alternate arrangements to be made for them by another approved provider of aged care but the arrangements to transfer them.” (paragraph 20)
Given the findings that we have made, we consider that the risk to the residents’ health, welfare or interests outweighed the deep upset that many of them and their relatives suffered as a result of their leaving the place that was their home. If it is relevant to consider matters relating to the manner in which the health, welfare or interests of residents were to be attended to after the sanctions were imposed, we find that such arrangements were made. They were made at St Vincent’s. For the reasons given in Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care, we do not consider the implementation of those arrangements to have any relevance in reviewing the sanctions decisions. The Tribunal’s role is limited to reviewing whether the decisions to impose sanctions were the correct or preferable decisions at the time they were made. It may take account of evidence available after the date of those decisions but its role does not extend to an examination of events relating to the implementation of the decisions.
Was it appropriate to impose sanctions without following the procedures in s. 67‑1(1)(a) and (b)?
Whether it was appropriate to impose sanctions without following the procedures in s. 67-1(1)(a) and (b) is a matter addressed at the hearing but it is not a matter in relation to which we consider that we have jurisdiction. The Tribunal may review a reviewable decision confirmed, varied or set aside under ss. 85-4 or 85-5 of the Act (s. 85-8). “Reviewable decisions” have been specified in s. 85-1. As a decision under s. 67-1(2) is not among them, it cannot be reconsidered by the Secretary under ss. 85-4 or 85-5.
Should we be incorrect in this view, we have considered the question whether it was appropriate to impose sanctions without following the procedures in s. 67-1(1)(a) and (b).. This question can only be answered by first answering the question whether, because of Riverside’s non-compliance with its responsibilities under Part 4.1, there was an immediate and severe risk to the safety, health or well-being of the residents (i.e. the care recipients) at the nursing home as required by s. 67-2(2) of the Act. The expression “immediate and severe risk to the safety, health or well-being of care recipients” must be considered as a whole but, first, we will consider the meanings of its individual words. We have already considered “safety”, “health” and “well-being” as well as “severe”.
In its context, the word “immediate” is concerned with time and bears its ordinary meanings. In so far as those meanings are relevant, they include:
“… 4 Present or nearest in time; most urgent, occurring or taking effect without delay; done at once, instant. …” (The New Shorter Oxford English Dictionary, 3rd edition, 1993)
“… 1. occurring or accomplished without delay; instant: an immediate reply. 2. pertaining to the present time or moment: our immediate plans. 3. having no time intervening; present or next adjacent: the immediate future. …” (The Macquarie Dictionary, 2nd edition, 1991)
That leaves only the word “risk” whose ordinary meanings include:
“…1 Danger; (exposure to) the possibility of loss, injury, or other adverse circumstance. …” (The New Shorter Oxford English Dictionary, 3rd edition, 1993)
“… 1. exposure to the chance of injury or loss; a hazard or dangerous chance …” (The Macquarie Dictionary, 2nd edition, 1991)
Returning to s. 67-1(2), it is providing that the Secretary need not follow the procedural steps in s. 67-1(1)(a) and (b) if, as a result of an approved provider’s non-compliance, the safety, health or well-being of the residents is exposed at the very moment to adverse consequences in the extreme. That is to say, they need not be followed if there is an immediate and severe risk to the safety, health or well-being of the care recipients because of the approved provider’s non-compliance.
In our view, the consequences of Riverside’s non-compliance had reached a stage beyond where there were merely serious consequences for the safety, health and well-being of the residents. There was a systemic breakdown and that systemic breakdown on all fronts as evidenced by the breakdown in the documentation to the breakdown in the medication management and administration and all aspects to which we have touched upon, have led us to conclude that there was no need to follow the procedures in s. 67-1(1)(a) and (b).
Decision
For the reasons we have given, we affirm the decisions of the respondent dated 5 March, 2000.
I certify that the three hundred and eighty-one preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Associate Professor J.H. Maynard (Member)
Signed: ................................................................
P. Paczkowski Associate
Date/s of Hearing 2 to 5 October, 2001
8 to 12 October, 2001
15 October, 2001
17 to 19 October, 2001
22 to 26 October, 2001
29 October to 1 November, 200111 December, 2001
Date of Decision 17 March, 2003
Counsel for the Applicant Mr B.F Monotti with Mr C. Hanson
Solicitor for the Applicant Efron & Associates
Counsel for the Respondent Mr C. Gunst QC with Ms M.E. Kennedy
Solicitor for the Respondent Clayton Utz
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