Saitta Pty Ltd and Secretary, Department of Health and Ageing

[2008] AATA 681

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 681

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3964

GENERAL ADMINISTRATIVE DIVISION		)
Re		SAITTA PTY LTD

Applicant

And SECRETARY, DEPARTMENT OF HEALTH & AGEING

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date5 August 2008

PlaceMelbourne

Decision

The Tribunal decides:

(a)     In those circumstances in undertaking its role of a de novo hearing the Tribunal affirms the decision under review; and

(b)     For the purpose of implementing the proposal contained in paragraph 154(e) and for that purpose only the confidentiality order granted by the Tribunal on 11 January 2008 is lifted in respect of the respondent.

..............................................

Deputy President

CATCHWORDS

Aged Care Act 1997 – Accreditation Grant Principles – Accreditation Standards – whether approved provider was non compliant with Accreditation Standards – whether disqualified individual was a member of key personnel – responsibility for decision making – infection control – medication management – dignity of residents – whether documentation of the approved provider was adequate – whether residents were adequately cared for – whether residents received adequate dental care – whether approved provider engaged in continuous improvement – whether immediate and sever risk – whether subsequent improvements resolved non compliance – decision under review affirmed.

Accreditation Grant Principles 1999 ss 3.20, 3.21, 3.22, 3.23, 4.4, 4.6

Administrative Appeals Tribunal Act 1975 s 37

Aged Care Act 1997 ss 2-1(1), 3-4, 8-3, 10-2, 10A-1(1)(a), 10A-2, 41-3, 54-1, 65-1, 65-2, 66-1, 67-1, 67-2(2), 80-1, 85-4, 85-8, 96-1, Part 4.1, Part 4.2, Part 4.3, sch 1

Crimes Act 1958 (Vic) s 21A

Quality of Care Principles 1997 sch 2

Sanctions Principles 1997 s 22.17

Marnotta Pty Ltd (Receivers and Managers Appointed) and Secretary, Health and Ageing [2005] AATA 426

REASONS FOR DECISION

5 August 2008 Mr G L McDonald, Deputy President

Introduction

1.      This is an application by Saitta Pty Ltd (the applicant), an approved provider of aged care facilities to residents located at its premises known as Belvedere Park Nursing Home (Belvedere Park), for the review of a decision of a delegate of the Secretary (the Secretary) of the Department of Health and Ageing (the Department) dated 16 August 2007 to revoke the applicant’s approval as a provider of aged care services effective from 12pm on 23 August 2007.  The applicant is a proprietary limited company, the shares of which are held in equal proportions between the family companies of Messrs Russell Menere and Graeme Menere.

2.      On 22 August 2007 this Tribunal granted, subject to certain conditions, a stay which permitted the applicant to continue operating as an aged care provider pending the final determination of this appeal.  By the time the stay was granted all of the residents at Belvedere Park had been moved to other approved facilities.  Except for one person, for one 24 hour period, the applicant has not continued to operate Belvedere Park.  The employment of Belvedere Park’s staff was terminated in September 2007. Unless otherwise indicated the references to dates in these reasons is to dates in the 2007 calendar year.

The Aged Care Act

3.      This case concerns the provision of high level residential aged care to a maximum of 30 residents at Belvedere Park.  The governing Act is the Aged Care Act 1997 (the Act). The objectives of the Act are set out in s 2-1(1) and include :

(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 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;

…

(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;

…

Residential care is defined in s 41-3 of the Act as follows:

(1)Residential care is 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.

(2)      However, residential care does not include any of the following:

(a)care provided to a person in the person’s private home;

(b)care provided in a hospital or in a psychiatric facility;

(c)care provided in a facility that primarily provides care to people who are not frail and aged.

In this case all of the residents were classified as requiring the highest level of care.[1]

[1] The term “high level of residential care” is defined in Clause 1 of Schedule 1 of the Act.

4. Section 3-4 of the Act emphasises the responsibilities of approved providers with respect to the quality of care they provide, the user rights of those to whom care is provided, accountability for the care, and the suitability of those who perform the decision making functions of the provider.[2] Section 3-4 also provides that sanctions can be imposed on an approved provider who does not fulfil its obligations.

[2] The people who perform such duties are termed “key personnel” by the Act and defined in s 8-3 and Schedule 1 of the Act.

5. The Secretary may impose sanctions as provided under Division 65 of the Act. Section 65-2 of the Act relevantly provides that in considering whether to impose sanctions the Secretary must consider the following:

In deciding whether it is appropriate to 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, the Secretary must consider the following:

(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;

…

6. The Secretary is not limited in his/her consideration to the matters set out in s 65-2, but if other matters are considered, account must also be taken of the matters specified. Parts 4.1, 4.2 and 4.3 of the Act set out the responsibilities of approved providers. Part 4.1, among other things, deals with the quality of care to be extended to residents, including the provision of the care and services specified in the Quality of Care Principles 1997 (the Quality Principles). The Quality Principles are made by the Minister pursuant to s 96-1 of the Act. Schedule 2 of the Quality Principles sets out the Accreditation Standards (the Standards). This case concerns whether or not, and if so to what extent, the Standards may not have been complied with by the applicant. The Tribunal discusses the Standards later in these reasons.

7. The Secretary must provide written reasons for the imposition of sanctions. Section 67-1 sets out the procedure for imposing sanctions. Essentially, in the absence of a finding of immediate and severe risk, the procedure requires approved providers who are to be subjected to sanctions to be provided with various notices that specify timeframes in which the approved provider must respond to the notices. The sanctions which can be imposed are found in s 66-1 of the Act and include the power to suspend and revoke the authority of an approved provider to operate.

8. The Secretary is relieved of the need to provide notices required by s 67‑1(2) if a finding of “immediate and severe risk to the safety, health or well being of the care recipients” is found to exist. That was the finding made by the delegate of the Secretary in this case in a decision dated 16 August.

9. A decision to impose sanctions made pursuant to s 65-1 is a decision which can be internally reviewed by the Secretary.[3] Section 85-4(1) provides that the Secretary may reconsider a decision “if there is sufficient reason” to do so, that is, undertake an own motion review. After undertaking a review the Secretary may confirm the decision, vary it or set it aside and substitute a new decision.[4]  In this case the Secretary carried out an own motion review after receiving a report of an audit report in respect of Belvedere Park, and set aside the original decision of 11 August and substituted a new decision dated 16 August.  The revocation could be suspended if the applicant agreed to the appointment of an administrator, selected from a list of people approved by the Department, to operate Belvedere Park for a six month period.  The decision of 16 August revoked the applicant’s approved provider status from 12pm on 23 August, revoked allocation of all the places allocated to the applicant, and restricted the applicant to the provision of aged care to those residents to whom it was then providing care.

[3] s 85-1, Item 54.

[4] s 85-4(4).

10. Section 85-8 provides a right of appeal to this Tribunal from decisions made under s 85-4. The applicant is appealing for review of the substituted decision dated 16 August.

The Accreditation Grant Principles And Quality Of Care Principles And The Aged Care Standards And Accreditation Agency

11.     The Accreditation Grant Principles 1999 (the Accreditation Principles) are made by the Minister under powers found in s 96-1 of the Act. Section 80-1 gives power to the Secretary to establish the Accreditation Standards (the Standards) and Accreditation Agency (the Agency). The Agency has the functions of managing the accreditation process for approved providers, promoting high quality care and assisting in improving service quality and liaising with the Department concerning non compliance with the Standards. In effect, the Agency reports and makes recommendations to the Department.[5]  The Agency cannot impose sanctions. 

[5] See “Note: Part 5.4 of the Aged Care Act 1997” of the Accreditation Grant Principles 1999.

12.     The Accreditation Principles relevantly provide for the Agency to undertake support contact visits[6] and audit reviews.[7]  The Accreditation Principles set out the procedures for undertaking an audit review and what must be included in an audit report[8] and what the Agency must do in terms of notifying non compliance.[9] Section 4.6(1) of the Accreditation Principles requires the Agency to decide whether, in the case of non compliance, the safety, heath or wellbeing of the residents is placed at serious risk. Such a report was sent by the Agency to the Secretary concerning Belvedere Park on 10 August in accordance with s 4.6(2) of the Accreditation Principles.

[6] s 3.20.

[7] s 3.21.

[8] ss 3.22 and 3.23.

[9] That is, a copy of the report including the matters set out in s 4.4(2) is to be sent to the Secretary with a copy to the approved provider (s 4.4(1)).

13.     Part 4.1 of the Act entitled ‘Quality of Care’ sets out the responsibilities of approved providers to provide care for residents.[10] Schedule 2 of the Quality Principles sets out the Standards under the following headings:

[10] s 54-1.

Part 1Management systems, staffing and organisational development

Principle:Within the philosophy level of care offered in the residential care service, management systems are responsive to the needs of residents, their representatives, staff and stakeholders, and the changing environment in which the service operates.

Part 2Health and personal care

Principle:Residents’ physical and mental health will be promoted and achieved at the optimum level in partnership between each resident (or his or her representative) and the health care team.

Part 3Resident lifestyle

Principle:Residents retain their personal, civic, legal and consumer rights and are assisted to achieve active control of their own lives within the residential care service and in the community.

Part 4Physical environment and safe systems

Principle:Residents live in a safe and comfortable environment that ensures the quality of life and welfare of residents, staff and visitors.

14.     Each part contains reference to the Standards which are to be met.  In these reasons references are made to the Standard and Part followed by the Item number of the Standard expected to be met by the provider.

15.     The Agency is the only body authorised to undertake assessments of the compliance of nursing homes with the Standards and the Act.[11]  Such visits are termed ‘support contacts’.  The evidence before the Tribunal established the Agency undertakes at least one unannounced support contact to each Commonwealth subsidised nursing home in Victoria/Tasmania each year.  A support contact is undertaken by a team consisting of one, two or three members and is usually directed to a particular aspect or aspects of the provision of care.  A team may consist of employees of the Agency or consultants or a combination of both.  On completion of a support contact the team meets with senior staff of the approved provider and discusses its findings. This is referred to an ‘exit meeting’.  According to Mr Gerard Patrick Barry, an employed agency assessor, the Agency has developed modules against which assessments are made.[12]  The assessment process involves assessors examining documentation, talking to staff and, if possible, residents or their relations, and making and recording observations during the visit.  A report is then prepared which sets out the findings, the information relied on to support the findings, and identifies any areas of non compliance with the Standards.

[11] s 3.20 of the Accreditation Principles.

[12] Exhibit R7, paragraph 16.

16.     Every three years a more detailed site audit report of compliance is undertaken.  If the approved provider is found to comply with the Standards then its status is renewed for a further three year period.  The last such audit undertaken for Belvedere Park was on 16 and 17 November 2005.[13]  While no non compliance was notified, the following areas where improvement was needed were identified by the assessors:

•Updated audit tools,

•Greater use of small team sessions which would permit an increase in the amount of quality leisure time per day for a greater number of residents,

•An authorisation for the use of restraint belt for a resident when eating or using the commode (this was arranged during the audit), and

•A recommendation as to a change in the cleaning schedule.

[13] Exhibit R8.

17.     The Acting State Manager of the respondent (Ms Wendy Bateman), while she renewed the accreditation on 28 December 2005 for three years commencing 19 February 2006, noted delays in the provider’s response to issues raised at internal meetings, and the fact that there were numerous complaints to the Commonwealth Complaints Resolution Scheme which were listed as “issues in relation to food choice, staffing levels and attitudes, cleaning, specialised care needs, and paying for items that should be provided.”[14]  The Tribunal has no information about the outcomes of the complaints made to the Commonwealth Complaints Resolution Scheme.  The fact that complaints were made on a variety of issues, some of which concern similar issues to those which are raised in the case before the Tribunal, demonstrates that there was at the time a sufficient level of disquiet being expressed to warrant a mention of those concerns in the accreditation report.

[14] Exhibit R8.

18.     An audit can also be undertaken at any time at the Secretary’s request.[15]  The purposes of the two functions undertaken by the Agency – support visits and audits – need to be distinguished.  Professor Alan Pearson drew a distinction between undertaking a support contact, the purpose of which was to identify practices with a view to encouraging development and improvement in them, and an audit, which was designed to see if the practices were in fact meeting the Standards set out in the Quality Principles.[16]  The Tribunal accepts the different purposes in the two functions as outlined by Professor Pearson.

[15] s 3.21(6) of the Accreditation Principles.

[16] Transcript, pages 2411-2413.

19.     The respondent maintains that the sanctions were imposed as the result of the applicant’s non compliance with 42 of the 44 Standards. 

The Function Of The Tribunal In Reviewing The Decision

20.     In undertaking its review the Tribunal stands in the place of the Secretary to determine whether the decision appealed against is the correct or preferred decision.  In this case the decision is ‘correct’ in the sense that that word is to be understood, that is, it is within the authority of the Secretary to impose the sanction.  The issue for the Tribunal is whether on the material and evidence before it the decision reached was the preferred decision.  The Tribunal has the advantage of hearing from the witnesses, including Ms Jenny Clarke and Ms Lynne Sellers, who undertook the audit, as to their observations and the explanations given for their actions as well as the reasons for the conclusions they reached.

21.     The reviewable decision issued by the Secretary is dated 16 August.  The Tribunal requested the parties to address the date on which the Tribunal should assess the evidence on which its bases its determination.  While on behalf of the applicant no certain date was identified, the respondent stated that the date on which the Tribunal should base its findings is 16 August.  The Tribunal agrees that this is the date on which the Tribunal should make its assessment.

22.     The fact that 16 August is the date on which the assessment of evidence is to be based does not preclude evidence of events occurring later in time from being taken into account, provided that that evidence reflects the circumstances as they existed on 16 August.  Thus, evidence of what was observed by witnesses who may not have been present on 16 August or who may not have visited the premises on or before that date may be considered.  In this case evidence of the admission of a resident which occurred during the hearing is relevant to consider as it reflects on the applicant’s adherence to the terms of the stay granted by this Tribunal which in turn reflects on the applicant’s attitude to adherence with the Standards as well as to any conditions which may be imposed in any sanction.  The Tribunal will return to this later in these reasons.

23.     The Tribunal was assisted by the applicant’s counsel, Mr McKenzie, admitting that the applicant accepted “the direct observations of things, seen, smelt or heard made by assessors and Departmental visitors.”[17]  Additionally, the applicant accepted the evidence of one of the receiving homes as to urinary tract infections present in residents on their transfer from Belvedere Park.[18]  Some of the observations were relevant to more than one of the Standards, for example an observation about odour from a toilet may be evidence of a lack of infection control[19] and also of the dignity of the residents.[20]

[17] Transcript, page 686.

[18] Transcript, page 219.

[19] Standard Part 4 Item 4.7.

[20] Standard Part 3 Item 3.6.

24.     There were many circumstances addressed in extensive evidence before the Tribunal. Not every circumstance is able to be addressed in these reasons.

The Hearing

25. The Tribunal had before it the documents filed for purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) and a set of supplementary “T” documents. The applicant called the following witnesses:

(a)Ms Theresa Stekly the Care Services Manager at Belvedere Park from May 2000 until her resignation as the result of ill health on 18 August.  Ms Stekly is a Registered Nurse Division 1, which is the highest ranking general nursing qualification, and has worked in the aged care sector for 24 years.  Ms Stekly gave evidence on three occasions.

(b)Mr Graeme Menere was employed by the applicant in what was described as an administrative capacity until the closure of Belvedere Park in September.[21]  His role at Belvedere Park is the subject of consideration later in these reasons.  The Tribunal advised Mr Graeme Menere to obtain independent legal advice with respect to some of the questions asked of him and suspended his cross examination to permit this to occur.

(c)Ms Katrina Sharp is accepted as an expert in the operation of aged care facilities.  Ms Sharp, as well as having extensive experience in the aged care industry, is also a Registered Nurse Division 1.

(d)Ms Annette Papax was the occupational lifestyle activities therapist (recreation officer) at Belvedere Park.

[21] Transcript, page 1510.

26.     The respondent called the following witnesses:

Aged Care Standards and Accreditation Agency
Gerard Barry	Quality Assessor
Bronwyn Thompson	Quality Assessor
Lorraine Baker	Quality Assessor and Assessment Manager
Vicki Plummer	Registered Nurse Division 1, Quality Assessor
Dr Margaret Lett	Registered Nurse Division 1, External Quality Assessor
Lynne Sellers	Quality Assessor
Jenny Clarke	Registered Nurse Division 1, External Quality Assessor
Rita Rousso	Registered Nurse Division 1, Quality Assessor
Shirley Latham	Acting State Manager
Department of Health and Ageing
Virve Curtis	Registered Nurse Division 1, Commonwealth Nursing Officer
Mary Keast	Registered Nurse Division 1, Commonwealth Nursing Officer
Miranda Gretgrix	Registered Nurse Division 1, Commonwealth Nursing Officer
Michael Dalladay	Assistant Director, Investigation Section
Mary Knight	Registered Nurse Division 1, Commonwealth Nursing Officer
Tender Living Care Pty Ltd
Denise Tomaras	Registered Nurse Division 1, Principal of TLC
Jillian Slade	Diversional Therapist
Other nursing homes
Michael Lim	Registered Nurse Division 1, Executive Director of Nursing, Springtime, Sydenham Nursing Home
Leah Franklin	Registered Nurse Division 1, Facilities Manager, Cumberland Manor Nursing Home, Sunshine
Other
Ms R	Daughter of deceased resident Mrs ID
Paul Gilbert	Senior Industrial Officer, Australian Nursing Federation
Expert witnesses
Professor Alan Pearson	Professor of Nursing, University of Adelaide
Dr Michael Murray	Director of Geriatric Medicine, St Vincent’s Health, and Associate Professor of Aged Care, Latrobe University

27.     Additionally, the respondent produced a draft witness statement from Ms Veronique Tunacao, who was Ms Stekly’s deputy and acted as the Director of Nursing during periods in which Ms Stekly was on leave and after she resigned.  Ms Tunacao’s draft statement, prepared by the solicitors for the respondent, was admitted by consent.  There was disagreement between the parties as to which had responsibility to call those witnesses who had been employed at Belvedere Park during the relevant time.  Mr Russell Menere, a Director of the applicant company and a person responsible for the executive decisions as well as some management and possibly some of the day to day operations of the applicant, was present during the first day of the hearing but was not called to give evidence.  The failure to call him by the applicant is a matter of concern – particularly when, among other issues with which his evidence would have been of assistance, there was an issue concerning the extent of Ms Stekly’s role and the involvement of Mr Graeme Menere in the executive decision making and/or management and/or day to day operations of Belvedere Park.  The Tribunal will return to this issue later in these reasons.

28.     Mr McKenzie requested the Tribunal to undertake a view of Belvedere Park’s premises.  However, since there were no residents present and work had been carried out on the premises at the time and the Tribunal would only have been able to visit in the post 23 August period, the Tribunal declined to the request.  The Tribunal was concerned that, in the circumstances, undertaking a view may result in a picture far different from that presented in the evidence.

29.     As set out in paragraph 23 it was conceded at the outset that the applicant did not dispute “the direct observations of things, seen, smelt or heard, made by assessors and Departmental visitors.”[22]  Rather, the applicant was more concerned to demonstrate that it was the conclusions reached from the observations which were being challenged.[23]  In particular on behalf of the applicant the need to demonstrate ‘triangulation’ of the observations made was stressed.[24]  Ms Sharp and Mr Barry described triangulation as checking observations by asking questions of staff (for example how often did what was observed occur) and/or against documentation.[25]  Dr Margaret Lett described triangulation as using different sets of observations to verify one point.[26]  Professor Pearson stated that triangulation of data made “the evidence even more powerful and believable.”[27]  Ms Sharp expressed the view that she was amazed that Mss Clarke and Sellers could have completed such a detailed report (the audit report)[28] having spent only three and a half days at Belvedere Park, and queried if the time frame was sufficient to substantiate and triangulate the conclusions reached from the observations made.[29] In contrast and somewhat curiously, Ms Sharp felt she was able to complete her examination and report on the state of Belvedere Park in a time frame of four and a half hours spent at the premises on 20 August.

[22] Transcript, page 686.

[23] Transcript, page 480.

[24] Transcript, pages 480 and 613.

[25] Transcript, page 613 and 812 respectively

[26] Transcript, page 1068.

[27] Transcript, page 2420.

[28] T documents, T23.

[29] Transcript, page 628.

30.     While the Tribunal accepts that triangulation of evidence may provide added confirmation of what was observed, the fact that the applicant accepts what was “observed, smelt or heard” lessens the need to rely on triangulation where the observation is sufficient to sustain a conclusion.  The absence of triangulation does not automatically result in evidence being in some way inferior or suspect, or that the person giving that evidence lacks credit.  This is so particularly since the Tribunal has had the advantage of seeing and hearing the witnesses give evidence, something which was not available to the delegate of the Secretary at the time she reached the decision the subject of this appeal.  Further, the Tribunal is conscious of Professor Pearson’s instructive remark that some procedures carried out by staff should be so routinised that when a lapse occurs it may be indicative that procedures which ought to be followed are not being followed.

31.     Both parties attacked the independence of the other’s expert witnesses.  The Tribunal should state that Ms Sharp was called as an expert witness for the applicant and Professor Pearson and Dr Murray for the respondent.  Mr McKenzie’s cross examination of Professor Pearson suggested, for example, because the Professor was associated with research grants administered through the Agency his evidence may be biased in favour of the respondent.  Mr Gunst QC, counsel for the respondent, suggested that Ms Sharp had assisted the Meneres in previous proceedings before the Tribunal and was being used as a ‘hired gun’ by the applicant.  The Tribunal rejects these contentions and is satisfied that the expert witnesses were giving their evidence and applying their expertise to the facts as they understood them and that it was not tainted by bias.

32.     Mss Stekly and Papax, the agency staff and consultants as well as the departmental staff, Ms Franklin and Mr Lim, are all accepted by the Tribunal as being very experienced in the requirements of the provision of aged care.  The Tribunal has not approached their evidence on the basis that they were called as experts.  Ms Stekly was at times confused and contradictory in the giving of some of her evidence and while the Tribunal has not been able to accept all of it, that is different from her not telling the truth, as Mr Gunst suggested was the case at one point in his cross examination of her.  The Tribunal has dealt separately with the evidence of Mr Graeme Menere.

The Background

33.     The applicant was incorporated on 30 September 1977.[30]  The shareholders of the applicant are the family trusts of Messrs Graeme and Russell Menere, each holding a 50% interest.  At all relevant times Belvedere Park was the only business operated by the applicant.  The directors of the applicant are Mr Russell Menere and his wife Mrs Joan Menere.  The latter was appointed on 17 February 2001 and replaced Mr Graeme Menere who resigned as a director at or about the same time.  Mr Graeme Menere’s resignation followed his conviction for the indictable offence of stalking[31] for which he was sentenced to three months imprisonment suspended for two years.[32]  That conviction resulted in him being categorised as a “disqualified individual,”[33] a fact accepted by the applicant for the purposes of this hearing[34] but not accepted by Mr Graeme Menere.[35]  Mr Graeme Menere seems to take the view that since his conviction occurred in a Magistrates’ Court he has not been convicted of an indictable offence.  This is not so. The Tribunal is satisfied that he stands convicted of an indictable offence which was tried summarily.

[30] T documents, T14, page 190.

[31] s 21A of the Crimes Act 1958 (Vic).

[32] T documents, T5, page 111.

[33] s 10A-1(1)(a) of the Act.

[34] Transcript, page 109.

[35] Transcript, page 109.

34.     The applicant provided residential aged care for up to 30 residents in the current premises at Sydenham since 1993.[36]  The level of care needs of residents is assessed on a scale of one to eight where those who require the most care are at the upper end of the scale.  The residents at Belvedere Park were all classified as being “high care”.[37]  Many suffered cognitive impairment (Ms Stekly suggested that this was up to 90%,[38] whereas Ms Papax estimated it at 16 out of 27 residents, that is approximately 60%[39]), some experienced physical impairment and some a combination of both.  The greater care which is required to be provided, the higher the subsidy paid by the Commonwealth to ensure that the standard of care needed is able to be met.  In determining this case the Tribunal has borne in mind the undoubted added difficulties associated in the provision of care required for residents classified as being in need of high care.  

[36] Transcript, page 112.

[37] Transcript, page 213, per Ms Stekly.

[38] Exhibit A3, paragraph 6.

[39] Exhibit A8, paragraph 9.

35.     On 3 July an assessor from the Agency (Mr Barry) made an unannounced support visit to Belvedere Park.  In his report dated 5 July[40] Mr Barry outlined a number of areas where he felt there was non compliance with the Standards, including but not limited to a lack of cleanliness, a bad odour, the ground outside an emergency exit was unevenly paved posing a risk of tripping for infirm residents, the documentation was inadequate, and procedures and policies were “very outdated.”[41]  He found the policies had not been reviewed on an annual basis.  One example of this was the occupational health and safety policy, which Mr Barry concluded had not been reviewed since 1998.  Mr Barry concluded that there was no evidence of Belvedere Park undertaking a program of continuous improvement which was contrary to requirements set out in the Standards.  Mr Barry found that Belvedere Park was non compliant with six of the Standards.

[40] T documents, T10.

[41] Exhibit R7, paragraph 24.

36.     Two further visits from agency staff occurred on 23 July and 3 August in which a further six and 11 items, respectively, of non compliance were identified.[42]  Ms Clarke and Dr Lett, both external assessors, undertook the visit of 3 August.  After returning to the Agency later that day a discussion was held with a more senior manager of the Agency and it was decided to undertake an audit of Belvedere Park.[43]

[42] T documents, T11 and T12 respectively.

[43] Exhibit R19, paragraph 27 and Exhibit R14, paragraph 60.

37.     Ms Stekly commenced a period of annual leave and went abroad on 21 July.[44]  She returned on Sunday 5 August and went to work at Belvedere Park on Monday 6 August.  However, she was suffering from pneumonia and depression and commenced sick leave later that day.  She did not return to Belvedere Park between 6 August and her resignation on 18 August.

[44] Transcript, page 203.

38.     Between the morning of 6 August to lunch time 9 August Mss Clarke and Sellers were present during the day and the early evening at Belvedere Park undertaking the audit for the Agency.  At an exit meeting held on 9 August Mss Clarke and Sellers claimed to have notified staff of the non compliance of 42 of the 44 possible Standards.[45]  Both Ms Tunacao and Mr Graeme Menere attended that exit meeting.  Mr Graeme Menere claimed that the first he heard of sanctions being imposed was in a telephone conversation with Mr Russell Menere. [46]

[45] Exhibit R19, paragraph 58 and Exhibit R18, paragraph 72 respectively.

[46] Transcript, page 121.

39.     Mss Clarke and Sellers discussed their findings with Ms Latham.  A serious risk report was generated by Mss Clarke and Sellers on 10 August[47] and sent by the Agency to Mr Russell Menere[48] and to the Secretary.[49]  On 11 August the Secretary imposed sanctions on the applicant including revoking its approved provider status for a six month period but with the stipulation that the revocation would not come into effect if an approved administrator was appointed from a panel of names provided by the Secretary.[50]  Additionally the approval was restricted to the care of those residents currently being cared for by the applicant for the six month period.[51]  The applicant had a week in which to respond to the departmental sanctions.  

[47] T documents, T15.

[48] T documents, T16.

[49] T documents, T17.

[50] T documents, T3, pages 21-22.

[51] T documents, T3, page 22.

40.     A more detailed audit report, arising from their attendance at Belvedere Park between 6 and 9 August, was submitted to the Agency by Mss Sellers and Clarke on 15 August.[52]  It was this latter report which resulted in the Secretary undertaking an own motion review of the sanctions imposed on 11 August.  Those sanctions were set aside and replaced with the sanctions that are the subject of this appeal.[53]  Following these sanctions, there were five support visits (being one per day) between 16 August and 22 August by agency assessors and 11 visits by staff from the Department.  It was claimed on behalf of the applicant that the number of visits unduly disrupted the care which could be devoted to the residents.  The Tribunal will address this issue later in these reasons.

[52] T documents, T23.

[53] T documents, T2.

Was There A Campaign To Discredit The Meneres Or Interests Associated With Them?

41.     A matter which should be addressed at the outset was the concern expressed on behalf of the applicant that the action undertaken by the Department and/or the Agency resulted from a campaign by them to “get [the] Menere[s].”[54]  Of the assessors, Ms Clarke, when she had worked as an employee of the Agency between 2000 and 2002, had some contact with the Meneres and was aware that there had been previous litigation between interests of the Meneres and the Department, as did Mr Barry[55] and Ms Virve Curtis.[56]  Mss Mary Keast and Mary Knight were aware of the Meneres being associated with Kenilworth (an aged care facility also owned by the Meneres, or their interests, which subsequently closed down) but Ms Keast had no involvement as an assessor or otherwise with Kenilworth[57] and Ms Knight visited Kenilworth on one occasion.[58]  Ms Baker was aware that Mr Graeme Menere had become a disqualified person about 2000 or 2001.[59]  Ms Rita Rousso and Ms Miranda Gretgrix were not questioned on this aspect.  Ms Vicki Plummer[60] had no knowledge of or previous contact with the Meneres.  Mr Michael Dalladay had visited Belvedere Park in 2002 or 2003 in the course of his then employment with the Aged Care Complaints Resolution Scheme but had had no contact with Mr Graeme Menere.[61]  Ms Latham, who was ordinarily stationed in Western Australia and was relieving in Victoria for the period 6 to 31 August, had no knowledge of the Meneres.[62]

[54] Transcript, page 2020, per Mr McKenzie.

[55] Transcript, pages 699-700 and 774-778.

[56] Transcript, pages 1675 and 1697.

[57] Transcript, pages 1747, 1780-82 and 1790.

[58] Transcript, page 2113.

[59] Transcript, pages 850 and 853-856.

[60] Transcript, page 882.

[61] Transcript, pages 1973-1974.

[62] Transcript, page 1584.

42.     Mr Gunst outlined the history of litigation in this Tribunal, the Federal Court and the Victorian Supreme Court brought against the Commonwealth or its entities, all of which had been commenced by the Meneres or their interests.  It is only necessary for the Tribunal to observe that the litigation appears not to have involved any of the witnesses called by the respondent who have given evidence in this application and that it occurred well before the period of time relevant to the determination required to be made by the Tribunal in this case.  It bears no relevance to this case.

43.     The submission that there was a conspiracy or vendetta or plan to ‘get the Meneres’ or their interests was first evidenced in the attitude taken to Mr Barry’s visit of 3 July.  Correspondence dated 13 July addressed to the Agency and signed by Ms Stekly made 11 allegations as to Mr Barry’s attitude, the way in which he conducted himself and as to his report to the Agency.[63]  The oral evidence was that a number of people were involved in the composition of the letter. Ms Stekly said she requested assistance from Mr Graeme Menere to draft the letter,[64] Mr Graeme Menere stated Ms Stekly drafted the letter,[65] and that he only assisted with the English[66] and Ms Papax, while she could not recall the occasion, accepted that she had participated in its preparation.[67]  It was Mr Graeme Menere’s evidence that he had requested Ms Sharp to provide advice with respect to Mr Barry’s report of the 5 July.[68]  Ms Sharp initially thought that she had provided advice but this subsequently transpired not to be the case.[69]  The letter makes a number of broad based allegations concerning Mr Barry’s approach but it contains very little supporting factual material. 

[63] Exhibit  R1.

[64] Transcript, page 287.

[65] Transcript, pages 308-309.

[66] Transcript, page 311 he claims his involvement was “insignificant”.

[67] Transcript, page 640.

[68] Transcript, page 309.

[69] Transcript, page 523.

44.     While there was minimal cross examination as to whether Mr Barry was requested to prepare a response to the complaint,[70] there was very little cross examination of him as to the allegations set out in the letter apart from some questions on an item of continuous improvement made at Belvedere Park on which he had commented positively in his report.[71]  It was curious that this item was selected as the complaint letter stated that Mr Barry had “failed to provide…any recommendations in support of our continuous improvement goals.”[72]  Some questions were put as to what matters he may not have reported when they were favourable to Belvedere Park whereas he was (incorrectly) claimed to have reported all unfavourable matters.[73]  Largely, however, no factual material was put to Mr Barry which would have revealed a reasonable basis for either the allegations set out in the complaint letter or in support of the broad general proposition that he was part of a conspiracy against the interests of the Meneres, the applicant, or Belvedere Park.

[70] He was requested to prepare a response, see Transcript, page 747.

[71] T documents, T10, page 177 and Transcript, page 751.

[72] Exhibit R1.

[73] For example, Mr Barry stated he would have reported after questioning, see Transcript, pages 760 and 814-815.  Ms Tunacao is reported to have stated she had no knowledge of the need to report residents committing assaults but not if she indicated she knew of the need for guidelines to be introduced, see T Documents, T 10, page 168 and Transcript, pages 759-760.

45.     A question was asked of Mr Dalladay, an assessor, as to why he obtained a copy of a contact list[74] he found during his visit to Belvedere Park on 21 August.  The document seemingly lists Mr Graeme Menere under the heading of “Management”, as well as “Proprietor”.  It was put to Mr Dalladay that he was looking for a list of suppliers to Belvedere Park and that in taking a copy of the contact list his intention was “to get Menere.”[75]  The Tribunal accepts that Mr Dalladay had been given consent by the acting care service manager, Ms Tunacao, to take copies of documents in the file he was examining, which included the contact list.  It was a relevant document in Mr Dalladay’s mind as it categorised Mr Graeme Menere, someone Mr Dalladay knew was a disqualified person, as being ‘Management’.  It is fanciful to suggest, as occurred in this case,[76] an assessor undertaking a visit for one purpose, is limited to addressing him/herself to that stated purpose and that should he/she come across evidence of what appears to be non compliance in another area, he/she was required to seek permission from the approved provider to collect evidence of an apparent breach occurring in that other area.  It transpired the document was one produced by Mr Graeme Menere prior to him becoming a disqualified person and has no present relevance.

[74] T documents, T48, page 343.

[75] Transcript, page 2023.

[76] Transcript, page 2023.

46.     Despite there being knowledge amongst some of the assessors and Departmental officers about the earlier involvement of the Agency and/or department with the Menere interests there is no material which evidenced a ‘campaign’ against any of the Meneres or the applicant.  The Tribunal is satisfied that the allegation of there being a ‘campaign’ was totally unfounded and not supported by any, let alone any creditable, evidence.

47.     The applicant continued to denigrate the respondent’s professional witnesses, describing Ms Clarke as answering questions “absolutely, blithely and without thought” and “in the end this mess has arisen from a misguided, unintelligent and unskilled person’s failure to properly triangulate her inquiries.”[77]  This criticism also apparently extended to the way in which at least some of the staff at Belvedere Park perceived the initial visit of at least Ms Clarke.  Ms Papax expressed that view during her oral evidence.[78]

[77] Transcript, page 2742.

[78] Transcript, page 651.

48.     The Tribunal, having observed and listened to the assessors and Departmental officers, does not accept the submissions made on behalf of the applicant as to Ms Clarke's lack of intelligence or experience or the general denigration of the assessors or Departmental staff.  They are all professionally qualified, with tertiary degrees and many are Registered Nurses Division 1 and, as their backgrounds unquestionably and universally demonstrate, are very experienced in the requirements necessary in the provision of residential aged care. Most have practical experience in the provision of such care and many of the consultant assessors as well as those employed by the Agency, have or have had, managerial responsibility for such facilities.  Despite some knowing, whether in vague terms or more specifically, of the background of Mr Graeme Menere and/or the Menere interests in the operation of the applicant and another nursing home (Kenilworth), the evidence leaves the Tribunal satisfied that there was no campaign or any exercise of improper purpose by either the assessors or the departmental staff.

49.     In the case of Ms Latham, denigration at the outset changed to praise in the summation on behalf of the applicant without any apology.  The strident unfounded and unsubstantiated allegations made concerning agency staff and departmental employees were not sustained by the evidence.  In the absence of some supporting material such allegations constitute an attack on the characters of the witnesses, rather than address the manner in which those witnesses performed their functions.  Witnesses called to appear before Tribunals undertaking administrative review do not attend to be gratuitously denigrated and to do so reflects adversely on the party making the allegations.

The Submissions On Behalf Of The Applicant

50.     It was submitted on behalf of the applicant that while not perfect or “…fully compliant with all the multitude of items checked by the Agency and required by the system.  The evidence shows [the applicant] conducted a caring and effective home which provided well for a group of high care residents with a wide range of personal, medical and cultural backgrounds and conditions.”[79]  That being the case, it was submitted on behalf of the applicant that the correct and preferable determination is for the Tribunal to reinstate the decision and sanction of 11 August.  The following reasons were given:

[79] Submission dated 14 March 2008, paragraph 54.

(a)the sanctions decision was effectively reinstated by the Tribunal when it granted the stay on 23 August;[80]

[80] Submission dated 14 March 2008, paragraph 7.

(b)the imposition of [the sanctions of 16 August] would inhibit the continuous operation of Belvedere Park pending “ …an orderly realization of assets it had built up over the years”;[81]

[81] Submission dated 14 March 2008, paragraph 12.

(c)the sanctions imposed on 16 August did not result from a new set of findings of serious risk;[82]

[82] Submission dated 14 March 2008, paragraph 13.

(d)it is incompatible with the concept of “immediate and serious risk” that a delay of seven days occurred between the end of the audit on 9 August and the imposition of sanctions based on serious risk on 10 August and the imposition of sanctions based on immediate and severe risk on 16 August. Reference was made to the decision of Marnotta[83] where the Tribunal determined “immediate” referred to “instant”, “most urgent”, or “no time intervening”;[84]

[83] Marnotta Pty Ltd (Receivers and Managers Appointed) and Secretary, Health and Ageing [2005] AATA 426 at paragraph 40.

[84] Submission dated 14 March 2008, paragraphs 26-28.

(e)initially the submission referred to three areas where it claimed immediate and severe risk was not supported by the evidence and an example of each was referred to

(i)residents not receiving a range of clinical care to meet their needs;[85]

[85] Submission dated 14 March 2008, paragraphs 39-41.

The example: two male residents were noted as urinating in the public/communal areas.  One was controlled by a “pelican brief” which proved sufficient the other resulted in assistance being sought from specialists.

It was submitted -

-the residents required a very high level of care;

-alternatives to the staff monitoring would have required “…very significant reduction in the personal freedom and dignity of the resident";

-as 16 of the 25 residents suffered some degree of dementia the residents' conduct had to be evaluated against other options; and

-the care offered a balance between the existing tensions.

(ii)lifestyle activities;[86]

[86] Submission dated 14 March 2008, paragraphs 42-43.

The example:  the activities provided did not meet the needs of non English speaking residents or sufficiently provide for those with mobility needs.  It was claimed that the diversional therapist provided a range of activities of sufficient breadth and variety to constitute a suitable selection of activities.

It was submitted - that this was a “comparatively non critical non urgent aspect of the residents” well being and not sufficiently connected to “immediate and severe risk to support the sanction compared to issues such as intimidation, harassment or bullying (not any of which are asserted in this case).

(iii)environment;[87]

[87] Submission dated 14 March 2008, paragraph 44.

The example:  it was submitted that references to the smell or minor plumbing (by reference to the leaking pan flusher in the pan room) or electrical repairs could not reasonably constitute an “immediate and severe risk” as there was no direct threat [to the residents].  These, even in conjunction with other matters could not be regarded as a risk, and in any event the actions undertaken by the applicant obviated any risk.

To which the following three areas were added:

(iv)infection control;[88]

[88] Submission dated 14 March 2008, paragraph 48.

The example:  the general reference to a build up of grime and smell of the carpet is “...all that it comes down to.”

It was submitted: this did not constitute “serious” let alone “immediate and severe risk” or warranted Belvedere Park being closed down when a good clean and replacement of some carpet would rectify the situation.

(v)poor cleaning protocols;[89]

[89] Submission dated 14 March 2008, paragraph 49.

The example: smell and toilet brushes containing faeces could not constitute risk to health.  It was stated that it is unclear how often that [the latter] occurred or if the occurrences were “constant, multiple or offensive.”

It was submitted: the bathrooms (toilets) were regularly and effectively cleaned and no risk arose to any subsequent user of the toilet from any faecal deposit remaining on the brush. 

(vi)lack of dignity;[90]

[90] Submission dated 14 March 2008, paragraph 50.

Example given:  personal toiletries of the residents were not labelled, the interchange of toiletries in bathrooms was misconceived and there is little or no risk arising. 

It was submitted:  this did not constitute a serious risk to residents’ dignity.

[Tribunal note:  The Tribunal accepts that the examples are all referable to the matters contained in the audit report and not intended by the applicant to constitute the full gambit of what was covered in the evidence but are merely cited to exemplify the points being made.]

(f)it was submitted that the evidence relied on by the respondent was misstated and did not reflect accurately and fairly the true condition the services, did not support a finding of immediate and severe risk and did not support or sustain the conclusions reached having regard to the subsequent actions taken by the applicant in response to the notice (presumably 11 August notice).[91]

(g)that the sanctions imposed were not in accordance with s 22.17 of the Sanctions Principles 1997 in that there was a failure to consider,

(a)whether non compliance threatens or threatened the health, welfare or interests of the care recipients; and

(b)the period likely to be needed to establish whether any improvement in compliance can be sustained.[92]

(h)as to the accumulated effect of the non compliance the applicant submitted that “…repetition, misunderstandings and inaccuracies of those items which might, on the view favourable to same, still result in the sanction as imposed being a draconian and unsustainable abuse of power.”  In support of this the applicant submitted the history of litigation between the applicant and the Department (the Tribunal understands this to extend to other Commonwealth Departments) and the role of Mr Graeme Menere as being examples of things which inappropriately influenced the Department in the decision reached and which should not sway the Tribunal in reaching its determination.[93]

(i)the applicant submitted “…that the issue is really accepting Katrina Sharp, Annette Papax and Theresa Stekly or Jenny Clarke, primarily, and to a lesser extent Sellars (sic) as to the view they took.”[94]

[91] Submission dated 14 March 2008, paragraphs 31-33.

[92] Submission dated 14 March 2008, paragraph 35.

[93] Submission dated 14 March 2008, paragraphs 51-52.

[94] Submission dated 14 March 2008, paragraph 56.

The Respondent’s Submission

51.     The respondent submitted a detailed summary addressing the operation of the Act, the role of the Agency and the evidence upon which it relied in support of the decision under review.  Since the Tribunal has covered the evidence as it sees it and the conclusions which it is satisfied flow from the evidence there is little point in the Tribunal summarising the respondent’s submissions.

The Findings

The Role Of Mr Graeme Menere And The Responsibility For Decision Making At Belvedere Park

52.     A disqualified person is not entitled to hold a position as a member of the ‘key personnel’ of an approved provider.[95]  The term ‘key personnel’ is defined as including anyone in a role responsible for executive decision making or who is concerned in or takes part in the management of or the day to day operations of an approved provider.[96]  On behalf of the applicant it was submitted that the Tribunal was not the forum in which the disqualification issue should be addressed.[97]

[95] s 10A-2 of the Act.

[96] s 8-3(3)(a), (b), (c) of the Act.

[97] Transcript, page 2754.

53. The respondent submitted that s 65-2 of the Act sets out the issues that the Secretary is obliged to take into account when deciding sanctions once non compliance has been found to exist under Parts 4.1, 4.2 or 4.3 of the Act. While the participation of a disqualified person is not something addressed in any of those Parts of the Act it was submitted that that section should not be read down to exclude the Secretary considering only the issues identified. The Tribunal does not need to decide on the submission made on behalf of the respondent.

54.     The Tribunal notes that Standard Part 1 Item 1.2 requires “management systems in place to identify and ensure compliance with all relevant legislation …” Thus, if Mr Graeme Menere, as a disqualified person, is characterised as being a member of the applicant’s key personnel it is open to find that there was non compliance with a Standard.  Accordingly it is, in the opinion of the Tribunal, a matter which the Secretary is entitled to take into account when deciding non compliance and in deciding whether to invoke sanctions.  Of course a finding by the Tribunal does not equate to or have any effect in respect of any decision which the Act provides may be made by the Federal Court of Australia for any offence.

55.     The Tribunal accepts that Ms Stekly was the person responsible for the provision of nursing services and a person responsible for some of the day to day operations conducted by the applicant until her retirement.  She was thus a member of the applicant’s key personnel.  Mr Russell Menere, who is a person responsible for at least the executive decisions of the applicant, is also a member of the applicant’s key personnel.  Mr Graeme Menere, until he was disqualified from undertaking any role in the key personnel of the applicant in 2001, had approximately 20 years experience in operating nursing homes.[98]  An issue before the Tribunal is whether Mr Graeme Menere took responsibility for some executive decisions and/or for some of the management or day to day operations of the applicant, that is, did he take a role as a member of the key personnel.

[98] Transcript, page 116.

56.     On behalf of the applicant it was claimed that Mr Graeme Menere was an employee of the applicant undertaking administrative or clerical functions,[99] including the payment of bills,[100] staff wages,[101] ensuring grants were received,[102] and the preparation of annual budget for consideration by Mr Russell Menere. Mr Graeme Menere also claimed that he acted the conduit between the staff at the nursing home, conveying any requests which involved executive decision making to Mr Russell Menere and relaying the latter’s decisions to the staff.[103]  This was also Ms Stekly’s understanding.[104]  

[99] Transcript, pages 116 and 170.

[100] Transcript, pages 151 and 163.

[101] Transcript, pages 151 and 163.

[102] Transcript, page 151.

[103] Transcript, page 152.

[104] Transcript, pages 209-210 management or in the day to day operations of the applicant.

57. Mr Graeme Menere has also used other descriptions for his role since his disqualification, for example in December 2001 as the IT co-ordinator,[105] and at one point in his oral evidence he described himself as a collector and disseminator of information,[106] and at another that he was “a lackey, a pen pusher.”[107]  Dr Lett stated that Mr Graeme Menere described himself as being the bookkeeper.[108]  Mr Graeme Menere asserted his role, however described, whether as assistant to the managing director or, as he explained it, as “Queen of Australia”[109] or as pen pusher,[110] was to carry out instructions given to him by Mr Russell Menere.[111]  

[105] Transcript, page 315.

[106] Transcript, page 389.

[107] Transcript, page 382.

[108] Exhibit R14, paragraph 32 and Transcript, page 994.

[109] Transcript, page 389.

[110] According to what he said to Ms Sellers, see Exhibit R18, paragraph 46(g).

[111] Transcript, page 117.

58.     The respondent disputed Mr Graeme Menere’s role claiming he undertook functions involving the executive decision making and/or was concerned in or took part in management decisions and/or he undertook a considerable amount of the day to day operations of the applicant.[112]

[112] Submission of the respondent dated 6 March 2008, paragraph 7.2.1.

59.     The Tribunal experienced considerable difficulty with Mr Graeme Menere’s evidence.  The Tribunal found him to be obtuse.  For example, when asked about management he responded “…management has wide-ranging meanings.  A person manages how they dress…”[113]  He was argumentative, for instance, in relation to who had authority in Victoria to sign cheques on behalf of the applicant he stated “Russell was in Melbourne from time to time, why wouldn’t he be able to do that?”[114]   He was also unduly pedantic, for example when asked if he acted as a manager of the nursing home, he responded it was impossible to manage a nursing home as a nursing home was a building and that he did not know how to manage a building.[115] 

[113] Transcript, page 165.

[114] Transcript, page 164.

[115] Transcript, pages 165 and 174.

60.     In an affidavit, sworn on 21 August in support of an application to the Tribunal to stay the operation of the sanctions, Mr Graeme Menere stated that he had only visited Belvedere Park on “a few occasions…”[116]  It is evident that he was there more often.  Mr Barry had a discussion with him on 3 July,[117] Dr Lett stated he was present during the visit she and Ms Clarke made on 3 August and that he attended the exit meeting,[118] Mss Clarke and Sellers said he was there on 8 August.[119]  Mss Knight and Curtis[120] saw him there on 13 August and he was there on 20 August with Mr Russell Menere and Ms Sharp although on the latter occasion he did not participate in any meetings.  Mr Graeme Menere also attended the meeting of relations of the residents on the evening of 20 August.  It follows that the Tribunal is satisfied that Mr Graeme Menere made more visits than he was prepared to disclose and that Ms Stekly was mistaken in her evidence that Mr Graeme Menere only visited Belvedere Park about once every six months.[121]

[116] Exhibit A1, paragraph 17.

[117] Exhibit R7, paragraph 31.

[118] Exhibit R14, paragraphs 31-34 and Exhibit MAL-4 to that statement.

[119] Exhibit R19, paragraph 25 and Exhibit R18, paragraph 57 respectively.

[120] Exhibit R30, paragraph 67 and Exhibit R23, paragraph 9 respectively.

[121] Transcript, page 258.

61.     Mr Graeme Menere said he referred all issues requiring executive decisions to Mr Russell Menere.  In his affidavit, Mr Graeme Menere states that Mrs Menere is, in her capacity of a director of the applicant, a member of the “key personnel.”[122]  Mr Graeme Menere stated that he was unaware of whether Mr Russell Menere had assigned any part of the executive responsibilities to Mrs Menere.[123]  If Mrs Menere had exercised executive decision making authority under the Act then it would have been likely that there would be some mention of it in the material before the Tribunal or in the oral evidence.  There was not.  The only reference to Mrs Menere is a comment that Ms Tunacao made that she spoke to her once on the telephone.[124]  The Tribunal is satisfied that Mr Graeme Menere’s evidence on this point is designed to obfuscate the truth.  It stretches credulity beyond the bounds of reasonableness that as someone with an effectively ‘half interest’ in the applicant company and as the person who, according to his evidence, acted as the conduit to Mr Russell Menere for all executive decision making and because of the familial relationship between them, he would have no knowledge of Mrs Menere undertaking responsibility, either generally or in respect of specific areas, in the executive decision making associated with Belvedere Park.

[122] Exhibit A1, paragraph 18.

[123] Transcript, page 98.

[124] Exhibit R36, paragraph 25.

62.     That Mr Russell Menere attended the first day of the Tribunal’s hearing of this case but did not give oral evidence gives rise to an apprehension that he did not want to take responsibility for the executive decision making or management in respect of Belvedere Park.  In considering why this may be the case the Tribunal is left with two possible explanations.  The first is that Mr Russell Menere only nominally occupied that position and that in fact the role was fulfilled by the only other person who was contactable by Ms Stekly (or other staff), namely, Mr Graeme Menere.  The second is that both Mr Russell Menere and Mr Graeme Menere participated in fulfilling the role.

63.      Mr Graeme Menere stated that he prepared an annual budget and submitted it to Mr Russell Menere for approval.  If an item formed part of the budgeted expenditure and it related to the nursing care of the residents then Ms Stekly had authority to proceed with the purchase.  If it was not part of the budgeted expenditure then it was claimed that Ms Stekly would request Mr Graeme Menere to seek approval from Mr Russell Menere.  In relation to the repair and installation of new call bells at Belvedere Park it was suggested that it was Mr Graeme Menere, rather than Ms Stekly, who arranged for the repair and/or replacement of the non functioning bells.  Mr Graeme Menere stated that he undertook investigations after discussion with Mr Russell Menere and that he had cleared the expenditure needed to repair the bells with Mr Russell Menere.[125]  The Tribunal doubts this evidence which could have easily been confirmed by Mr Russell Menere had he been called.  The Tribunal has decided not to draw any conclusion as to the part played by Mr Graeme Menere on the issue of the repair of the residents' call bells.

[125] Transcript, pages 384-385.

64.     However, the following incidents leave the Tribunal satisfied that Mr Graeme Menere had greater responsibility with respect to the decision making at Belvedere Park than he was prepared to admit:

(a)it was Ms Stekly’s evidence that she had discussed with Mr Graeme Menere the notion of installing a key pad in place of a latch to control ingress and egress through the front door of Belvedere Park and that he approved the expenditure for the purchase and installation.[126]  The conversation reported by Ms Stekly was that Mr Graeme Menere said “Okay then … call the company.”  There was no suggestion that Mr Graeme Menere referred the request to Mr Russell Menere and the Tribunal is satisfied that Mr Russell Menere was not contacted.  Similarly the same sequence occurred when Ms Stekly raised the issue of installing new carpet;[127]

(b)Mr Graeme Menere participated in the exit meeting at the end of Dr Lett and Ms Clarke’s support visit of 3 August and asked questions, debating with Dr Lett whether Belvedere Park’s resident care plans were individualised or not, and drew to their attention that a complaint had been lodged concerning a previous assessor (Mr Barry).[128]  This suggests he participated in, rather than just observed, what would be an operational meeting;

(c)the role of Mr Graeme Menere as outlined by Mr Gilbert in negotiating an agreement confirmed in the Conciliation and Arbitration Commission for the salary to be paid to Belvedere Park’s nursing staff.  According to Mr Gilbert’s evidence, which the Tribunal accepts, Mr Graeme Menere gave assurances sought by the nurses in relation to industrial matters, gave assurances to Mr Gilbert concerning the financial status of the applicant and confirmed he was consulting with the union representing the Belvedere Park nurses.  It was Mr Gilbert’s evidence that no mention was made of Mr Russell Menere.[129]  Finally, Mr Graeme Menere notified the staff in writing of the agreement reached and commended it to them.[130]  Ms Stekly confirmed Mr Graeme Menere was the person responsible for negotiating the agreement and commending it to the staff;[131]

(d)his participation in the exit meeting held on 9 August;

(e)Ms Stekly’s evidence, which the Tribunal accepts, that Mr Graeme Menere participated in the drafting of a letter of complaint concerning Mr Barry’s attitude following the latter’s support contact visit of 3 July;[132]

(f)from his challenging Ms Sellers in a telephone conversation held on 6 August;[133]

(g)his directing Ms Papax to stop the relatives of the residents from undertaking work to level and cement the area outside the day room;[134]

(h)in actively participating in the departmentally arranged meeting on the evening of 20 August 2007;

(i)it was Ms Stekly’s evidence that Mr Graeme Menere undertook negotiations with the landlord to have items at Belvedere Park for which the landlord was responsible repaired or installed, for example the replacement of a keypad to the front door[135] or the replacement of the carpet;[136] and

(j)in ringing Ms Latham on 10 August to argue about the imposition of sanctions and threatening legal action.[137]  Mr Graeme Menere stated that he rang and “argued the point over serious risk and I argued the toss over their interpretation of serious risk.”[138]  Ms Latham recorded a contemporaneous note of the conversation which the Tribunal accepts as accurately recording what was said.[139]  In her witness statement Ms Latham recalls Mr Graeme Menere as being very angry, telling her that she “did not know what serious risk is” and that he threatened legal action if serious risk was found to exist.[140]

[126] Transcript, pages 258-259.

[127] Transcript, pages 261-262. Except on this occasion Mr Graeme Menere queried who was to pay for the carpet given the building was not owned by the applicant.

[128] Exhibit R14, paragraphs 30-34 and 52 and Exhibit MAL-4 to Exhibit R14 and Transcript, page 994.

[129] Transcript, page 1968.

[130] Supplementary T documents, T58, at p374

[131] Transcript, page 255.

[132] And that Mr Graeme Menere’s involvement was greater than assisting with suggestions as to the use of English.

[133] Exhibit R18, paragraph 46.

[134] Transcript, page 646.

[135] Transcript, pages 256-259 and 267.

[136] Transcript, pages 261-262.

[137] Exhibit R22, paragraph 71.

[138] Transcript, page 121.

[139] Exhibit SML-1 to Exhibit R22.

[140] Exhibit R22, paragraphs 48 and 71-73.

65.     The Tribunal rejects Mr Graeme Menere’s characterisation of the conversation with Ms Latham referred to in the previous paragraph “as an Australian citizen and dealing with Australian law…”[141]  The Tribunal is satisfied that, as a fact, Mr Graeme Menere was having a debate about a legal matter, namely the meaning of serious risk, as well as querying the processes and professionalism of the assessors and threatening legal proceedings in relation to the imposition of sanctions.[142]  Mr Graeme Menere did not suggest in his evidence that he made the telephone call on instructions from Mr Russell Menere, which leaves the Tribunal satisfied that he made it on his own initiative.  He was arguing the case on behalf of the applicant with the most senior person in the Agency at the state level.  In undertaking this function he was acting in a role which may be expected of someone who was part of the management team of the applicant.  The evidence leaves the Tribunal satisfied that Mr Graeme Menere was more than a bookkeeper or pen pusher and that he had responsibilities in the executive decision making, the management, and the day to day operations of Belvedere Park.  The Tribunal does not accept Ms Stekly’s statement that Mr Graeme Menere “doesn’t know really what’s going on in the nursing home”[143] or accept it as being limited to the provision of nursing care only.

[141] Transcript, page 122.

[142] Transcript, page 122.

[143] Transcript, page 207.

66.     It was Ms Stekly’s evidence that she had only met Mr Russell Menere twice, on one occasion at the end of 2006 or early in 2007 at Mr Graeme Menere’s wedding.  Otherwise she had telephone contact with him “maybe once a year.”[144]  Mr Graeme Menere was unable in his evidence to say how often Mr Russell Menere visited Melbourne to attend to business associated with Belvedere Park.  Aside from not accepting this as plausible, the Tribunal concludes from Ms Stekly’s evidence that Mr Russell Menere did not visit during the period she was in charge of nursing care between 2000 and 18 August 2007 (a visit to celebrate Mr Graeme Menere’s wedding does not constitute a visit to attend to any business associated with Belvedere Park.  Indeed there was no suggestion from Ms Stekly that Mr Russell Menere visited Belvedere Park’s premises or discussed any issues relating to Belvedere Park on that occasion).  The Tribunal additionally notes the delegate’s conclusion that on 20 August Mr Russell Menere was unable to name the person who was currently managing Belvedere Park following Ms Stekly’s resignation.[145]  It would seem reasonable to conclude, and the Tribunal does conclude, that Mr Russell Menere was a very remote executive decision maker who took very little active involvement in Belvedere Park and rarely participated in the management of the facility.  The Tribunal is satisfied that both Ms Stekly and Mr Graeme Menere participated in the responsibility for the executive decision making and management of the applicant.

[144] Transcript, page 272.

[145] T documents, T2, pages 14-15 under the heading “Suitability of key personnel.”

67.     There remains a question as to whether Mr Graeme Menere also participated in the day to day operations of the applicant.[146]  Ms Stekly was responsible, until her resignation on 18 August, for the delivery of the nursing services at Belvedere Park.  In Ms Stekly’s absence Ms Tunacao, also a Registered Nurse Division 1, assumed on an acting basis the role ordinarily fulfilled by Ms Stekly until the appointment of an administrator which occurred later in August.  The evidence establishes that Ms Stekly, and in her absence Ms Tunacao, was responsible for the day to day operations of Belvedere Park in as far as they concerned the responsibility for the provision of nursing care.

[146] s 8-3(3)(d) of the Act.

68.     Ms Stekly stressed her primary role was as the person in charge of the nursing care.  However, the limits of Ms Stekly’s authority were somewhat unclear. Ms Stekly had access to a petty cash account of $300 which was for discretionary expenditure.[147]  The Tribunal accepts that Ms Stekly used the petty cash to purchase non standard food items which she knew particular residents would like and, no doubt, for other minor purchases.  Her authority extended to ordering food supplies and other items connected with the day to day care of the residents such as linen, kylies and incontinence aids.  There was a part time staff member who could undertake minor maintenance repairs and Ms Stekly had responsibility to direct him in this.[148]

[147] Transcript, page 235.

[148] Transcript, page 152, per Mr Graeme Menere.

69.     It was Ms Sharp’s evidence that in small residential care facilities such as Belvedere Park it was not uncommon for the director of nursing to have dual responsibility for the nursing care and the day to day operations of the facility.  While this may be so it is not a universally adopted arrangement.  Each case will depend on the facts.  While the Tribunal concludes that Ms Stekly was one of the people responsible for some of the day to day operations of Belvedere Park, she had limited authority and it could not be said that she had the sole responsibility.  There is no evidence before the Tribunal which suggests that there was any correspondence, including email contact, between Ms Stekly and Mr Russell Menere.  The Tribunal accepts that Mr Russell Menere lived initially in Brisbane and latterly in Sydney.  At all relevant times he worked in a capacity which had nothing to do with the applicant’s business.  The evidence suggests that the first time since 2000 that Mr Russell Menere visited Belvedere Park was on 20 August.

70.     The Tribunal finds that Ms Stekly had limited authority for the day to day operations at Belvedere Park.  If she, or in her absence other staff, needed something or expenditure to be approved then this was referred to Mr Graeme Menere.  However, the Tribunal is satisfied that Ms Stekly’s responsibility did not extend to a number of matters which properly fell within the ambit of the day to day operations, for example arranging for the repair of the uneven paving in the area outside the day room or to have the premises painted or to purchase furniture to replace items which may have reached their use by date.  In theory, Mr Graeme Menere referred such decisions to Mr Russell Menere.  However, the Tribunal is satisfied that the evidence discloses that sometimes Mr Graeme Menere took it upon himself to decide and implement what ought be done in repair of day to day operations without reference to Mr Russell Menere.

71. The evidence establishes to the Tribunal’s satisfaction that Standard Part 1 Item 1.2 has not been complied with. This is, in the Tribunal’s view, a serious matter as the legislature has expressly directed in s 65-2(a) of the Act that no disqualified person is to be responsible for the decision making of an approved provider. In the circumstances outlined by the Tribunal, if this was the only non compliance relied on by the respondent, it could establish an immediate and severe risk existed to the residents, for the reason that the legislature viewed it as being important to exclude disqualified people from participating in the decision making of an approved provider, and that approved providers should have in place systems to ensure, among other things, that compliance accords with the legislation. However, because of the decision reached by the Tribunal in respect of other areas of non compliance it is not necessary for the Tribunal to consider that in more detail.

Infection Control

72.     A major area of concern of the respondent relates to the risk to residents which may arise from infection.  It is accepted that in the frail and aged, infections are more likely to be serious, spread more readily between the residents and to be more life threatening than is the case with younger people.[149]  Professor Pearson commented that older people living in nursing homes are more vulnerable to infection than the general population and that “Therefore, the maintenance of hygiene and the imposition of really strong infection control mechanisms … are quite critical…”[150]  Infection can arise from many sources in a nursing home including but not limited to, the handling of food, the handling of soiled linen and clothes, dealing with infectious waste, the general state of cleanliness, particularly of the toilets and bathrooms, treatment of wounds and wound management[151] and continence control.[152]  Accordingly, knowledge of activities which may give rise to infections occurring and the ways in which it can be avoided or the risk minimised should be given to all staff.  

[149] Transcript, page 222, per Ms Stekly.

[150] Transcript, page 2375.

[151] Transcript, page 226, per Ms Stekly.

[152] Transcript, page 222, per Ms Stekly.

73.     The only infection incurred at Belvedere Park of which Ms Stekly was aware was an outbreak of gastroenteritis occurring in 2005 which had been quickly controlled, without adverse consequences to residents or staff.[153]  This, it was claimed, was indicative of a low infection rate at Belvedere Park.[154]

[153] Transcript, page 233, per Ms Stekly and Exhibit A3, paragraph 9 and Transcript, page 674, per Ms Papax and Exhibit A8, paragraph 25.

[154] Exhibit A3, paragraph 9 and Transcript, page 217.

74.     It was Ms Stekly’s evidence that her deputy, Ms Tunacao, was the registered nurse who was responsible for monitoring infection control measures, including staff training in infection control.[155]  Ms Stekly said that she had been encouraging Ms Tunacao to attend an infection control training course since 2005.  Ms Stekly stated that she experienced no problems in releasing staff to undertake training programs and pointed out that five of the laundry, cleaning and kitchen staff were or had been enrolled to undertake a certificate in health support services, of whom three had completed the course and one was still undertaking it.[156]  Ms Stekly had identified a suitable course,[157] but Ms Tunacao had not attended.  Curiously Ms Stekly maintained that while Ms Tunacao could attend during working hours, she also said that Ms Tunacao had been unable to do so because of her family commitments.[158]  On the other hand, Ms Tunacao’s draft statement records that Ms Stekly had undertaken to engage someone to give in house infection control training but it had never happened.[159]  These explanations, as to who had responsibility to organise on going training in an area as important as infection control, are unsatisfactory.

[155] Transcript, page 217 and Exhibit A3, paragraph 8.

[156] Transcript, pages 227-228.

[157] Transcript, pages 2577-2578.

[158] Transcript, pages 2690.

[159] Exhibit R36, paragraph 37.

75.     In any event, Ms Stekly maintained to the Tribunal that a Registered Nurse Division 1 should not need to attend such a course as he/she would be expected to have the necessary knowledge to ensure adherence to infection control standards.  Ms Knight confirmed this in her oral evidence.[160]  However, as earlier pointed out, the provision of infection control is not limited to the actions of Registered Nurse Division 1.  Carers, kitchen and laundry staff also need to exercise infection control measures.  Further, even a Registered Nurse Division 1 would benefit from ensuring his/her knowledge of what changes to practices are contemplated or may be being implemented so that his/her knowledge is current.  The Standards emphasise the need for continuous improvement and this can only, realistically, be achieved by the provision of further education, whether given orally or in written form.  

[160] Transcript, page 2190.

76.     Usually, care staff would seek guidance from an infection control manual.  Mr Barry was provided with such a manual on his visit of 3 July.  The manual was dated 15 January 2001 but was out of date as he claimed it contained material largely dating from 1999.[161]  Mr Barry noted that no reference was made to emerging infection issues such as severe acute respiratory syndrome and, perhaps more topically, avian flu.[162]  Mr Barry acknowledged that staff maintained that they had received training in infection control, but that no record of what topics were discussed or when the training occurred were available.

[161] T documents, T10, page 169 in his report of 5 July 2007.

[162] T documents, T10, page 169.

77.     Later, evidence given by Ms Stekly resulted in the production of a continuous improvement training schedule for 2007.[163]  Ms Stekly maintained that she organised training sessions on fire drills, manual handling,[164] chemical handling, choking and dementia.[165]  The continuous improvement training schedule revealed a minimalist approach to all areas of training and while listing infection control as a topic, and Ms Tunacao as the presenter, it contained no mention of any training program dates for the 2007 calendar year in infection control and did not identify any particular area of infection control which was to be addressed.  Further, the training schedule did not display what Ms Stekly maintained was the case, namely, that training was spread over the year “so that we don’t do that in one hit in one month.”[166]  Ms Stekly also maintained that notices on standard precautions as to infection control were located throughout the building.[167]  While the Tribunal accepts the latter point, that does not obviate the need for continuous improvement training.  The evidence does not support Ms Stekly’s conclusion as to the existence of a continuous training program in infection control and certainly not one which could be described as being of a satisfactory standard.  The Tribunal is satisfied that continuous improvement was not being actively pursued and that the applicant was not compliant with Standard Part 4 Item 4.1. 

Do Changes Made Post 16 August 2007 Resolve The Non Compliance?

162.   By the time of his visit to Belvedere Park on 14 August Mr Barry noted that “The home is starting to look cleaner and more welcoming.  Staff were observed to be working with residents in as dignified a manner as the conditions allowed.”[470] Mr Barry noted on his visit of 21 August a start had been made on painting the walls, protocols had been instituted covering the cleaning of the mop heads, wearing aprons by staff, changes to medication management, for a continence supplier to visit on 21 August, food in the kitchen was now labelled and dated, refrigerator temperatures were being monitored, the medication trolley was being used and nurses instructed on changes (as to the distribution of medications), a plumber had visited but not yet commenced work, and discussions had occurred with the landlord about property improvements.[471]  The Tribunal has noted some of the things commented on by Ms Sharp as the result of her visit on 20 August were indicative of positive changes occurring.[472]

[470] T documents, T21, page 219.

[471] Exhibit GPB-2 to Exhibit R6.

[472] Exhibit A6

163.   Some things which were capable of quick resolution had begun to be implemented, and the fact of their being implemented confirmed the evidence which clearly pointed to serious non compliance in a large number of areas.  A Project Plan[473] prepared by the appointed administrator and dated 9 September lists a large number of strategies which were recommended for implementation.  Many would be required to be carried out before any residents were readmitted, for example the introduction of new systems covering incident reporting, infection control, medical management, comment/complaints system, satisfactory surveys, care documentation, information systems, document controls, manuals, repairs, resident and staff handbooks, education calendar, reporting mechanisms, review of education training and performance of staff.  In substance they cover many of the issues canvassed in the evidence before the Tribunal.  The issues identified in the Project Plan clearly envisage a comprehensive reorganisation which would take more time to implement than existed between the calling of immediate and severe risk and the closure of Belvedere Park on 23 August.  The sheer number of changes are such that the Tribunal is satisfied that the time required to correct the non compliance would more likely than not have seen the residents remaining in a state of immediate and severe risk for an unacceptably extended period.

[473] T documents, T63.

Do The Circumstances Amount To Immediate And Severe Risk?

164. Section 65-1 of the Act provides that the decision maker can impose sanctions if the matters set out in ss (a)-(c) inclusive are met. The reviewable decision dated 16 August of the delegate did not expressly rely on individual items of non compliance but on the ground that “non compliance is deep rooted, systemic and indicates a fundamental breakdown in systems across a wide front. I consider that the deficiencies are so widespread and interrelated that allowing the provider to seek to work though them would expose the care recipients to an immediate and severe risk to their safety, health and well-being and an increased risk of death.”[474]  The Tribunal agrees with that conclusion.  The risks identified are exacerbated by the hands-off approach taken as evidenced by a lack of executive responsibility in decision making, a lack of direction in the management and the day to day operations of the facility, the involvement of a disqualified individual as part of the key personnel, and a failure to address manifest deficiencies prior to the imposition of sanctions.

[474] T documents, T2, page 7, Part C.

165.   The Tribunal has taken account of the undoubted difficulties faced by the staff of residential care facilities in the provision of care to the aged. Behavioural irregularity associated with residents’ suffering dementia pose particular problems not only to the sufferers and their families but also to the staff and other residents. The offering of a loving and friendly service by the staff, as was maintained was the case by the applicant, is but only one element in the provision of aged care. Management including ensuring various aspects of safety (for example of the physical environment and in the delivery of services including of medication), the administration of clinical care across a broad spectrum of need, the provision of a comfortable environment along with some stimulation consistent with residents’ backgrounds, needs and capabilities all form part of what is expected of those who offer residential aged care.  Since the subsidy is paid from Commonwealth funds, there must also be systems which provide accountability for taxpayers’ money expended in the giving of these services. The latter extends to not only ensuring reasonable standards in the provision of care are established and maintained to meet the objectives set out in the Act but also to ensure that financial accountability is provided. 

166.   The applicant regarded it as an inconsistent that as recently as February 2007 the Agency could renew approval for a three year period, but by August 2008 there was such a high level of non compliance that sanctions, involving revocation of approval, were required. It was correctly maintained that the applicant’s staff were long term employees and that no great changes had occurred to the services offered or to the physical conditions of the home such as to justify the imposition of sanctions.  The Tribunal cannot give any satisfactory explanation for this other than to point out that the 2007 approval notice contained some concerns and that there may have been a relatively rapid deterioration in maintenance of the standards. Ms Papax noted Ms Stekly’s depression following a person loss occurring early in 2008 seemed to result in a change in Ms Stekly. Clearly Ms Papax, while qualified in other areas, is not qualified to pass any professional opinion on Ms Stekly’s health condition.  The Tribunal has considered this aspect but in the end has determined that it is not required to provide any answer. The Tribunal’s position is to determine, by undertaking a de novo review, whether the material and evidence before it supports the correct or preferred decision as being reached.  The correctness or otherwise of the February 2007 decision does not arise for consideration.

167.   The Tribunal has set out in paragraph 50 of these reasons the detailed written submissions made on behalf of the applicant. The Tribunal appreciates that these were incomplete, that they must be read in conjunction with the oral submissions made and that the factual issues mentioned are but examples and do not purport to represent a total picture of the facts analysed.  There is, however, a danger in taking isolated factual matters and quoting them as examples. The danger is that viewed by themselves, and out of context, the examples will result in an overly simplistic analysis of the issues required to be considered. This, in the Tribunal’s view, is what has occurred in as far as the examples contained in the written summary are concerned.  The Tribunal has also considered the evidence of Ms Sharp when reaching the conclusions of fact outlined in the reasons. Ms Sharp’s evidence is at variance with the assessments made by a large number of equally qualified and experienced assessors and departmental officers. The Tribunal is satisfied that Ms Sharp’s views, while independently given, have been unduly influenced by her visit occurring after initial steps had been taken to commence improving the standards at Belvedere Park, her visit notified in advance, and was only of a short duration (four and a half hours). Against this there were many visits of the assessors and departmental staff which had occurred between 3 July to 20 August (the latter being the day on which Ms Sharp visited), which were not notified in advance and the Audit Review occurred over a three and a half day period undertaken by two assessors.  The Tribunal is satisfied Ms Sharp had much less opportunity to make the detailed analysis and assessments made by the assessors and departmental staff.

168.   The Tribunal could accept as being reasonable the submission made on behalf of the applicant that there may be innocent explanations for some of the observations etc made by the assessors and Departmental staff, if there were not such wholesale non compliance.  That there were so many areas of non compliance leaves the Tribunal satisfied that more likely than not the failures were not all amenable to innocent explanation.  The Tribunal accepts, as Professor Pearson pointed out, that isolated errors occur and that this is acceptable at a minimal level.[475]  The evidence in this case leaves the Tribunal satisfied that much more than the occasional isolated error occurred.  There was non compliance at a level which establishes to the satisfaction of the Tribunal that there was systemic failure to satisfactorily meet the standards required. 

[475] Transcript, page 2390.

169.   The Tribunal is satisfied, and the applicant admits, that Belvedere Park was not compliant with all of the Standards.  The issue is whether that non compliance is of a minor or serious nature (s 65-2(a) of the Act).  The Tribunal is satisfied that there is a combination of some minor and some serious non compliance.  The Tribunal is satisfied that in the area of infection control because of lack of the maintenance of clean premises, including the toilets, toilet brushes and the risk arising from an inability to thoroughly clean toilets/shower recesses because of the presence of cracked tiles,  the storage of pathological specimens, and on occasions cool drinks, in the medicinal refrigerator, the ineffective washing of residents’ clothes, the use of threadbare kylies not capable of absorbing urine, the unsecured infectious waste bin in the vicinity of the kitchen door through which food is delivered, the staff failure to consistently use protective clothing when dealing with dirty clothing and kylies, the dirty mop heads being left in buckets and not rinsed and hung to dry, the lack of control which led to  toiletries being left in shower recesses, the lack of up to date training provided to staff, and failure to institute a regime of continuous improvement in infection control, all demonstrate failures in Belvedere Park complying with infection risk management.  The Tribunal is satisfied that all of the issues identified, in combination, present an immediate and severe risk   Non compliance could result in an infection outbreak with serious, even life threatening, consequences to an older and more fragile resident population.  Aside from any other issue the Tribunal accepts that an immediate and severe risk existed at Belvedere Park from the lack of adequate infection control measures.

170.   The storage, preparation and distribution to residents of medicines also evidences serious non compliance.  The failure of systems to ensure all carer staff, including agency staff, could correctly identify residents to whom drugs were being administered, the failure to ensure that residents took the medication, the leaving of prescribed creams in residents’ rooms, the leaving of the unlocked medicine trolley where residents had access to it (both in the drug section of the nurses’ station and while medicines were being distributed), the administering of drugs by carrying unprotected needles to the patient, the completion of the drug record before the drugs were administered, the storage of drugs in the medicine refrigerator without any temperature monitor, changing the time medication was to be given to a resident without reference first to the prescribing medical practitioner, and the administering of treatment to a patient while suspended in a lifting machine again in combination, leave the Tribunal satisfied that the degree of non compliance is such that it is correctly categorised as being of a serious nature which presents an immediate and severe risk to the safety and wellbeing of the residents.

171.   The Tribunal notes that the principle at the introduction to Standard Part 4 extends the living environment standards to both staff and visitors.  The Tribunal accepts that visitors complained of the state of the premises, including the foul smell from the toilet allocated for their use.  The fact that some staff and residents may get used to the strong smell of urine is not a satisfactory answer to the existence of the problem.  Ms Stekly maintained that even after 34 years of nursing she experienced difficulty with the smell of urine.[476]  The constant objectionable smell resulted in residents, visitors and staff being unable to enjoy a comfortable living and working environment.  Residents have the right to enjoy, as far as they are able, the time they spend in nursing home care – they have the right and should be properly dressed in clean clothes, permitted as much independence as is consistent with their ability to enjoy it, be provided with toothpaste and toothbrushes, and clean serviceable furniture, and their dignity is infringed when they are required to live in dirty, smelly accommodation, dressed in some cases in unclean clothes and in others not appropriately accoutred in a manner which behoves the maintenance of the residents’ dignity. The lack of adequate and suitable stimulation for residents adds to the unsatisfactory nature of the living conditions. 

[476] Transcript, page 260.

172.   Mr McKenzie submitted that this aspect of care could not result in a finding of immediate and severe risk such as may be found to exist for instance with infection control.  However, the Tribunal is satisfied that when residents are expected to live day after day in substandard circumstances this aspect assumes a more direct and concrete perspective.  As is clear from the requirements found in Standard Part 4, the subsidy is being provided in part for older frail people to be enabled to live their lives not only safely but also in an acceptable social setting. Residents’ well being is only to be confined to just the maintenance of the physical aspects of life.  A real and identifiable risk to the wellbeing of the residents is presented when they are required to constantly live in substandard conditions and with unsatisfactory stimulation.  Accordingly, it is open to find and the Tribunal so finds, that the non compliance with the lifestyle standards also constitutes an immediate and severe risk to the wellbeing of the residents.

173.   The Tribunal is satisfied that the physical environment provided at Belvedere Park was well below a standard which may reasonably be expected by residents.  The smell emanating from the carpet and the visitor’s toilet, the use of ineffective kylies and worn and substandard linen, the lack of proper washing of residents’ clothes and the unclean state of some residents, the unsafe outdoor area off the day room and the lack of independence curtailed by the need for residents to be accompanied when using the outside, the lack of staff knowledge of where the key was to open the gate in an emergency, the provision of unsafe egress points outside the day room and at the exit on the other side of the building from the day room, the stained furniture, the storage of disused furniture and lack of consciousness of safety issues, the lack of provision of constant regulated hot and cold water for showering, the use of the lifting machine for a purpose for which it was not designed without checking suitability, the ‘shovelling’ of food into residents mouths, the lack of functionality of the bathroom (as distinct from the shower recesses), the lack of operation of the resident call bells, the lack of action to clean the premises and have the landlord take ameliorative action to correct building defects, and the generally less than satisfactory state of the cleanliness of the premises, leaves the Tribunal satisfied that there is serious non compliance with the Standards requiring the provision of safe and comfortable environment for residents.

174.   Standard Part 2 requires that residents’ health and personal care is to be achieved and promoted.  In this case there was non compliance in several of the standards, for example in not properly managing the residents’ medication and not ensuring it was ingested, with the skin care and other clinical treatment of residents as in the treatment of Messrs S’s and Z’s and Mrs A’s excoriation and the lack of apparent understanding of the consequences in the misplacement of Mr S’s catheter bag, the leaving of those residents who may be in danger of choking to feed themselves as in the case of Mr ST, the lack of prompt attention to Mrs FW’s leg ulcers in circumstances where she was diabetic, and the lack of attention provided to Mrs IW’s bowel management resulting in her having to attend hospital on an unnecessary number of occasions and the lack of oral care all contribute to substantiate a finding of immediate and severe risk.

175.   There was clearly a lack of management systems and Mr Graeme Menere’s involvement in the executive decision making, management and day to day operations when he is a disqualified person is such that it demonstrates no proper systems were in place to identify all relevant legislative requirements are met.  In view of the legislative requirement that a disqualified person should not participate as part of the key personnel the Tribunal is satisfied that this constitutes serious non compliance with the Standards.  This must be taken as being serious because of Parliament’s express exclusion of disqualified people from involvement in the levels of decision making.  It was the responsibility of Mr Russell Menere to ensure that he had in place systems which would alert him in the case of non compliance – particularly knowing, as he must be taken to have been aware, that his brother was a disqualified person.  The Tribunal however, as stated earlier, does not need to determine whether this issue alone constitutes immediate and severe risk. It is sufficient for the Tribunal to conclude that when viewed in the context of the other issues canvassed these concerns raise an issue of serious risk, which when combined with other issues supports a finding of immediate and severe risk.

176.   The Tribunal considered the level of sanction which should be applied. However, the immediacy and seriousness of the areas identified left the Tribunal satisfied that the sanction decided by the delegate was the correct and preferred sanction. In addition to the immediate and serious risk to residents there were a number of other factors which influenced the Tribunal in reaching its determination.  The Tribunal could gain no satisfaction from the fact that Mr Russell Menere was not prepared to give evidence that improvements would be properly planned and that leadership would be provided as required by Standard Part 1 Item 1.5.  The Tribunal was not assured from Mr Graeme Menere’s evidence that he would not continue to participate in the executive decision making, the management or the day to day operations of Belvedere Park, as he does not accept that he has a conviction which disqualifies him from participating as a member of the key personnel.  Finally, the fact that the applicant reopened without informing the appointed administrator, and contrary to the Tribunal’s direction, does not inspire confidence that compliance with any conditions imposed would be maintained.  While these other factors do not play any part in the determination of the serious and immediate risk they do not act to bolster confidence that any lesser sanction than those applied would be more appropriate.

177.(a)      In those circumstances in undertaking its role of a de novo hearing the Tribunal affirms the decision under review; and

(b)For the purpose of implementing the proposal contained in paragraph 154(e) and for that purpose only the confidentiality order granted by the Tribunal on 11 January 2008 is lifted in respect of the respondent.

I certify that the 177 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed .....................................................................................

Grace Hortzitski  Associate

Date/s of Hearing  21, 22, 23, 24, 25, 29, 30, 31 January 2008

1, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 21, 22, 25 February 2008

3, 5, 7 March 2008
Date of Decision  5 August 2008
Counsel for the Applicant         Mr M. McKenzie

Solicitor for the Applicant          Mr V. Harcourt

Russell Kennedy Solicitors

Counsel for the Respondent     Mr C. Gunst QC and Mr R. Knowles

Solicitor for the Respondent     Ms C. Petre

Clayton Utz