Samir Pty Ltd and Aged Care Standards and Accreditation Agency
[2012] AATA 333
•5 June 2012
CATCHWORDS – AGED CARE – revocation of accreditation of residential care service – application to stay implementation or operation of decision
Re Repatriation Commission and Delkou (1985) 8 ALD 454
Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642; (2005) 87 ALD 747; 41 AAR 97
Shiv Migration Institute of Australia [2003] FCA 1304; (2003) 134 FCR 326; 78 ALD 281
Windshuttle v Commissioner of Taxation (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88
Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15
Administrative Appeals Tribunal Act 1975 s 41(1) and (2) and 43(1)
Aged Care Act 1997
Accreditation Grant Principles
Accreditation Standards
DECISION AND REASONS FOR DECISION [2012] AATA 333
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2012/1812
GENERAL ADMINISTRATIVE DIVISION )
ReSAMIR PTY LTD
Applicant
AndAGED CARE STANDARDS AND ACCREDITATION AGENCY
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 5 June 2012
Place: Melbourne
Decision:The Tribunal decides to:
refuse the applicant’s request lodged on 4 May 2012 to make an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 staying or otherwise affecting the operation or implementation of the decision of the Agency made on 29 March 2012 and confirmed on 30 April 2012.
S A Forgie
Deputy President
REASONS FOR DECISION*
Following audits conducted on 8 and 9 December 2009, the Curie Nursing Home (Curie) had been accredited in accordance with the Accreditation Grant Principles made under the Aged Care Act 1997 (Act) for a period of three years. The Aged Care Standards and Accreditation Agency Ltd (Agency) had decided that it would be accredited for a period of three years until 13 March 2013. It was satisfied that Curie complied with all 44 expected outcomes of the Accreditation Standards and that the nursing home would undertake continuous improvement measured against those Standards. In the meantime, the Agency would undertake support contact visits to monitor progress with those improvements and its compliance with the Accreditation Standards. Samir Pty Ltd (Samir) was appointed as the approved provider for Curie.
On 29 March 2012, the Agency decided to revoke the accreditation of the Curie Nursing Home (Curie) with effect from 10 May 2012. The Agency had decided that Curie did not meet 16 of the expected outcomes of the Accreditation Standards. It confirmed that decision on 30 April 2012. Samir made a request under
s 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) that the implementation or operation of the Agency’s decision be stayed pending the hearing of its application for review of the Agency’s decision. On 9 May 2012 and again on
31 May 2012, I made orders to that effect in order to give Samir the opportunity to present its case in support of its request. I have decided to refuse Samir’s request. That means that, from 4.00pm on Wednesday 6 June 2012, the decision will be implemented and come into operations in accordance with its terms.
THE TRIBUNAL’S POWER TO STAY A DECISION
Legislative power
In general terms, s 41(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that:
“Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.”
Section 41(2) then goes on to provide that:
“The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.”
Matters to be taken into account
The operation of s 41(2) is not affected or varied by any provision in the Act. That does not mean, however, that the Act is irrelevant for that is the source of the power under which the Agency has made its decision and the framework in which Samir’s rights and obligations are determined. It is part of the background against which I must consider the interests of any persons affected by the review of the Agency’s decision and decide whether it is desirable to make an order staying the operation or implementation of s 41(2). I have set out a summary of the main provisions of the Act and the relevant Accreditation Principles at Attachment A to these reasons.
It is clear from the early authority of Re Repatriation Commission and Delkou[1] and the subsequent Federal Court authority of Yolbir v Administrative Appeals Tribunal.[2]
[1] (1985) 8 ALD 454 at 457-458; Deputy President Hall
[2] [1994] FCA 910; (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 at 249; 11; 18 per Davies, Burchett and O’Connor JJ. In Shiv Migration Institute of Australia [2003] FCA 1304; (2003) 134 FCR 326; 78 ALD 281 at 332; 286, TamberlinJ came to a conclusion consistent with that reached in Yolbir.
For reasons I have previously given in cases such as Re VBJ and Australian Prudential Regulation Authority,[3] it seems to me that the word “desirable'” connotes a “positive aspiration” and “something worthy of achievement” rather than “merely advisable”. What is worthy of achievement, and so desirable, can only be decided upon after having regard to the interests of the persons who may be affected by the review. If they are persons affected by the review, they will also be persons affected by the decision itself for the review may either leave that decision in place, vary it or set it aside and replace it with another.[4]
[3] [2005] AATA 642; (2005) 87 ALD 747; 41 AAR 97
[4] AAT Act, s 43(1)
Samir, the applicant, is clearly a person whose interests are affected by the review of the decision and the decision itself. If the decision to revoke Curie’s accreditation remains in place, Samir will no longer be entitled to receive residential care subsidies from the Commonwealth. That, in turn, affects its ability to provide a residential service to the residents of Curie. Consequently, their interests are affected by the review of the decision. The Agency’s interests too are affected but in a different way. Its interest in this matter is in ensuring the administration of the Act in so far as it has responsibilities and obligations under it. That does not mean that its interest is in maintaining its decision as such but in ensuring that the correct or preferable decision, whatever that decision may be, is reached at the end of the review.
Having regard to those interests, other matters become relevant in considering whether or not I should make an order under s 41(2) are:
(1)the prospects of success of Samir’s application for review of the Agency’s decision:
(a)In assessing prospects of success, this passage from the judgment of Von Doussa J in Windshuttle v Commissioner of Taxation[5] in the context of an application to extend time to apply to the Tribunal is relevant:
“…It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. …”;
(2)the consequences, if any, for the Agency in carrying out its functions under the Act if the stay is, or is not, granted;
(3)the consequences, if any, for the residents of Curie if the stay is, or is not, granted; and
(4)any conditions, such as undertakings, that could ameliorate any consequences of either granting, or refusing to grant, a stay.
BACKGROUND
[5] (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88
Mrs Kahn, Curie and Rosehill
Since late April 2012, Mrs Laila Kahn has been the sole director of Samir, which is the approved provider in relation to Curie. She is also the Executive Director of Nursing at Curie, which Samir had purchased in 2002. Before it was closed, Mrs Kahn had held the same position at the Rosehill Nursing Home (Rosehill). Samir operated Rosehill until it was closed on 27 April 2012 and had done since 1993.
Mrs Kahn is divorced from her former husband. On 27 November 2008, an order was made in the Family Court regarding their joint property. In relation to Rosehill and Samir, Mrs Kahn was required to:
“1. … do all acts and things and execute all deeds, documents, instruments and writings necessary to cause the Rosehill Nursing Home to be transferred and assigned to the husband or a corporation or other entity nominated by him for that purpose, together with all relevant aged care licences, permits and approvals with respect to the said nursing home.
2. That upon compliance with Order 1 hereof, the husband transfer to the wife or her nominee his shareholding in Samir Pty Ltd and resign as a director of Samir Pty Ltd.”
Mrs Kahn would indemnify her husband in relation to Samir’s liabilities and he would do the same in respect of Rosehill.
As matters turned out, Mr Kahn could not obtain approval as an approved provider as he was required to do under the Act before he could take charge of Rosehill. Mrs Kahn’s evidence is that she continued to fund Rosehill because she had a statutory and moral duty to do so. She has lodged proceedings in the Family Court seeking approximately $1 million from Mr Kahn to recompense her for managing Rosehill since 2008.
Review audits by assessment team from 9 to 16 March 2012
Review audits subsequently made by an assessment team appointed by the Agency from 9 to 16 March 2012 led to an Audit Report that Curie met 30 expected outcomes but did not meet 14 of them. Audit Assessment Information reported the major findings of the review audit in similar terms.
Serious Risk Report made by Agency on information conveyed by assessment team on 14 March 2012
On 14 March 2012, the assessment team reported evidence of serious risk to the health, safety or well-being of a persons’ receiving care at Curie. It reported the matter to the Agency which made a Serious Risk Report on 15 March 2012. The Agency did so under s 2.64 of the Accreditation Grant Principles to the effect that there was serious risk in relation to:
“∙ The needs of residents with challenging behaviours are not managed effectively.
∙Appropriate supervision and assistance is not provided to residents.
∙There are inappropriate practices by staff which have a negative impact on residents.
∙There are ineffective care assessment and care planning processes.
∙There are insufficient staff to care for residents.”[6]
[6] Serious Risk Report at 2 of 7: Affidavit of VA Harcourt; VAH1
The Agency noted the information received from the assessment team and set out the 14 expected outcomes that, on the information conveyed by the assessment team, Curie might not meet.
Imposition of sanctions by Secretary of Department on 16 March 2012
On 16 March 2012, a delegate of the Secretary of the Department of Health and Ageing (Department) notified Samir that she had decided to impose sanctions upon it in respect of the non-compliance at Curie. She imposed the sanctions because she was satisfied that Samir was not complying with one or more of its responsibilities under Parts 4.1, 4.2 and 4.3 of the Act in respect of Curie and, because of its non-compliance, there was an immediate and severe risk to the safety, health and well-being of residents at Curie and it was appropriate to impose the sanctions.
The Secretary imposed four sanctions, three of which would not take effect if Samir took the action specified in the decision. The sanction with immediate effect was the sanction to restrict the payment of subsidy under Chapter 3 of the Act to the provision of care to care recipients other than those already cared for on 16 March 2012. That sanction would stay in place for six months until 15 September 2012 unless lifted at an earlier time.
The effect of the three other sanctions was that revocation of Samir’s approval as an approved provider would not be revoked if, at its expense:
(1)Samir trained its officers, employees and agents in the:
(a)assessment, planning, delivery, evaluation and monitoring in relation to behaviour management, clinical needs of residents, care assessment and care planning processes, and residence privacy and dignity;
(b)roles and responsibilities of key personnel, including directors, and care staff; and
(c)governance training for all key personnel to ensure that they understand and meet their regulatory responsibilities and specifically those in relation to compliance with the Act;
(2)appoint an adviser approved by the Secretary with clinical background and nursing experience and skills meeting the criteria listed in the notice of decision including a sufficient understanding of the issues that need to be addressed to remedy the non-compliance at Curie; and
(3)appoint an administrator approved by the Secretary and meeting the criteria listed in the notice of decision including a sufficient understanding of the issues that need to be addressed to remedy the non-compliance at Curie.[7]
[7] Notice of Decision to Impose Sanctions: Affidavit of VA Harcourt; VAH2
Appointment of Nurse Adviser to Curie on 22 March 2012
Dr Devi Ranasinghe is a Clinical and Quality Consultant in Aged Care and holds a doctorate in Business Administration (Aged Care Continuous Improvement). She has 25 years’ experience in clinical and administrative aged care matters and has been appointed to the Adviser Panel by the Secretary in accordance with Division 66A of the Act. Previously, Dr Ranasinghe has held 13 appointments as Nurse Adviser. She was appointed to that position on 22 March 2012.
Dr Ranasinghe has worked with the staff at Curie to remedy the non-compliance identified by the Department in its Sanctions Notice and by the Agency. She has also worked with the Administrator to achieve compliance.
When Dr Ranasinghe swore her affidavit on 7 May 2012, she stated that she expected that Curie would achieve full compliance within 12 weeks. In her view, the steps set out in a Plan for Continuous Improvement (PCI) prepared on 8 April 2012 and referred to in Attachment B to these reasons, were appropriate measures to achieve compliance and a state of sustainable continuous improvement in that time.
In Dr Ranasinghe’s opinion:
“… while the facility is currently not entirely compliant with respect to a number of expected outcomes, there is no serious risk to any resident, let alone a severe or immediate risk. My reasons for that include:
(a)the Plan for Continuous Improvement;
(b)the fact that, in my opinion, DOHA nor the Agency has identified any non-compliance which materially affects any specific resident or has caused any harm;
(c)the presence and assistance of myself and the Nurse Administrator mitigating any risks to residents;
(d)I have witnessed no evidence of inadequate care being provided to the residents or dissatisfaction with the standards at the facility by the residents’ families.”[8]
[8] Affidavit sworn on 7 May 2012 at [10]
Agency’s decision to revoke Curie’s accreditation on 29 March 2012
On 29 March 2012, a delegate of the Agency decided to revoke Curie’s accreditation. She found that Curie did not meet 16 of the expected outcomes of the Accreditation Standards. These are noted in the Summary of Assessment Contact Reports at Attachment B to these reasons.
Appointment of Administrator on 13 April 2012
Ms Sue Brown was appointed as Administrator on 13 April 2012. I accept Ms Kahn’s statement that she had been looking for a person to fill that role since approximately 16 March 2012. Her first nominee had not been approved by the Department and she had found and, on 5 April 2012, nominated Ms Brown.
Samir’s Plan for Continuous Improvement dated 8 April 2012
Samir prepared a PCI as at 8 April 2012. It addressed various issues that had been raised by the assessment teams by setting out the strategies and actions that Samir would implement or had implemented in order to achieve compliance with the expected outcomes in the Accreditation Standards. I have referred to the dates of expected completion in Attachment A.
Samir’s application to Agency to reconsider its decision on 12 April 2012
On 12 April 2012, Samir applied to the Agency for review of its decision and set out its reasons.[9]
[9] Application for reconsideration: Affidavit of VA Harcourt; VAH1
Agency’s decision to confirm its decision to revoke Curie’s accreditation on 30 April 2012
On 30 April 2012, a delegate of the Agency confirmed its earlier decision on 29 March 2012 to revoke Curie’s accreditation. Revocation was deferred until 10 May 2012. Assessment contacts would continue up until 10 May 2012 in order to monitor Curie’s progress with improvements to meet the Accreditation Standards and actions to resolve the matters that had been identified and that placed the health, safety and well-being of residents at serious risk.[10]
[10] Affidavit of VA Harcourt; VAH1
Table of ultimate conclusions of assessment contacts
In the table at Attachment A, I have set out the expected outcomes, as identified in the Accreditation Standards, that the assessment team has reported have not been met at Curie when they made assessment contacts in March 2012 and following. The table sets out only the ultimate conclusion on each of those expected outcomes in the Assessment contact reports for the period from 15 March 2012 to
27 May 2012. What it does not reveal is the reason for the expected outcome’s not having been met. The reason is not addressed in each of the reports. Instead, observations and assessments made on the basis of those observations and analysis of them, the records maintained and conversations with the staff on the day concerned are set out in the assessment contact report for that day. Compliance is noted as it is corrected so that, for example, Infection Control has been met since 7 May 2012 as has Regulatory Compliance. Others, such as Leisure Activities and Interests and Living Environment, have fluctuated in their compliance.
Notice that Secretary considering revocation of Samir’s approval as approved provider
On 7 May 2012, the Secretary gave Samir notice under s 10-3(3) of the Act that she was considering whether to revoke its approval as a provider on the grounds that it had ceased to be suitable for approval.
Plans for continuous improvement
Mrs Khan stated that she had annexed updated PCIs dated 23, 24 and
25 May 2012 to her affidavit sworn on 25 May 2012 but only those for 23 and 24 May are in fact annexed. The PCIs have been prepared by Dr Ranasinghe and I have included the PCI prepared for 23 May 2012 in the table at Attachment B as indicative of both PCIs.
Mrs Kahn also annexed updated Action Plans prepared by Ms Brown. They are dated 16 and 24 April 2012 and 21 and 25 May 2012 and identify each issue that needs to be corrected whether identified as an issue by the Audit Review, a Systems Review or an Assessment Contact on a particular day. They identify the action that needs to be taken, the priority that needs to be given to it, the person responsible for taking that action and the date by which it must be completed.
Welfare of the residents
On information she has been given by Mrs Khan, Dr Ranasinghe said in her affidavit of 7 May 2012 that the risk to the residents’ health and well-being of Curie’s residents would be far greater if it had to close and they had to be moved than if they stayed at the home. She described Curie as:
“… a unique facility. Due to the building fabric and the circumstances of the facility, Curie accepts residents that are not normally welcome at a mainstream residential aged care facility. The majority of the residents have behavioural issues, many of which are serious behavioural issues requiring close management. …
I am informed by staff at the facility and the families of residents, and believe, that many of the residents have been rejected by previous authorities. Some of those residents have been rejected numerous times and Curie was the only facility they could find that would accept the residents. I estimate at least one fifth of the residents are in that category.
If the facility were to close, I believe many of the residents would face a challenging time in a facility not accustomed to their difficult behaviours.
Based on my experience, knowledge and my observations of the facility and the residents, as well as research about which I am aware, the closure of the facility and the ensuing upheaval would have a drastic impact on the health and well-being of the residents. I expect that the life expectancy of many of the residents would be adversely affected as a result.
In my opinion, the risks to the residents in the current circumstances, with my assistance and the assistance of the Administrator, are far outweighed by the risks to the residents that will arise if Curie is forced to close at short notice and they have to be transferred to different facilities, assuming that was even possible.”[11]
[11] Affidavit sworn on 7 May 2012 at [12]-[16]
Of the 32 residents at Curie on 7 May 2012, Dr Ramasinghe identified eleven of 32 residents as not having behaviour issues and nine as having manageable behavioural issues. The remaining residents were described as having “Considerable difficult behaviour issues” or “Considerable behaviour issues”.
Financial viability of Samir and Curie
I accept Mrs Kahn’s evidence that Curie is dependent upon Commonwealth subsidies to enable it to operate. Her evidence on 7 May 2012 in support of Samir’s application for a stay was that, if accreditation is revoked, Curie will have funds to enable it to operate for a further three weeks. After that time, it would have to close.
Her evidence on that point was supported by that of Mr Murshadur Chowdhury, who is an Accountant and who has worked at Curie for over five years. He swore an affidavit on 9 May 2012 stating that Samir is the trustee of the Khan Family Trust, which trades as Curie. In his opinion, the closure of Rosehill had strengthened Samir’s position as Rosehill was not profit making and was supported by the profits from Curie.
The St George Bank (Bank) has issued a Notice of Default to Samir trading as Rosehill and another to it in its own right and as trustee for the Kahn Family Trust trading as Curie. Two accounts were the subject of the Notice of Default in respect of Rosehill and four in respect of Curie. In both notices, it gives notice to Samir that it is in default of the facility offer dated 22 May 2008 as amended up until 14 March 2012. The reason for its default lies in its having failed to obtain, renew and/or comply with the terms of the authorisations necessary for it to continue to operate Rosehill and Curie. Reference was made to the Department’s Notice of Decision to Impose Sanction dated 9 March 2012. As a result of Samirs’ default, the Bank formed the opinion that a change had occurred in its financial circumstances which might, in turn, have a material adverse effect on its ability to observe its obligations under the Facility Agreement. The Bank has given notice of the default to the Directors of Yameen Holdings Pty Ltd as guarantors of Samir’s obligations.
Mr Chowdhury said that Samir had never met a monthly payment on any financial facility it held with the Bank and he did not expect it to do so in the future. He acknowledged that Curie is under pressure due to recent consultancy expenses being those of the Administrator and of the Nurse Adviser but was still profitable despite those extra expenses. It might have to rely on an overdraft facility that had been established with the Bank in the next two or three months in order to have the cash flow to meet those expenses.
Mrs Kahn’s solicitor in Sydney, Mr Rodney Kent, has said in an affidavit sworn on 30 May 2012 that the Bank is more likely to proceed against real estate owned by Mrs Kahn personally than to appoint receivers and managers to take over the operation and management of Samir.
The Statement of Financial Position for the Khan Family Trust as at
30 June 2011 shows its assets and its liabilities to be the same figure. Therefore, as at that date, it had no equity. That was so despite its having generated an operating profit before and after tax of $584,255.07 from Curie in that financial year. A distribution was made of the entire operating profit to four beneficiaries of the trust. Three distributions were in the amount of $175,276.52 and made to: Prindle Unit Trust, which is the owner of four properties adjoining Curie and earmarked for Curie’s future expansion and which used the money to pay interest payments due on the mortgages on those properties and to meet other expenses; Samir; and Mrs Kahn. The fourth was a distribution in the amount of $58,425.51 to Mrs Khan’s daughter.
The Statement of Financial Position for the Kahn Family Trust shows that the amount of operating profit, $371,053.13, was also distributed in its entirety in the previous year. The beneficiaries were the same and only the amounts differed. The three major beneficiaries each received $111,315.94 and Mrs Kahn’s daughter received $37,105.31.
In each of the years 2010 and 2011, the Khan Family Trust’s income is shown as $2,024,295.81 and $2,304,711.84 respectively from Commonwealth subsidies. The amounts of $523,393.71 and $670,566.52 were received from residents of the service.
The Profit and Loss Statement for the year July 2011 to March 2012 for the Khan Family Trust shows that a total of $1,757,205.55 had been received from the Commonwealth and $532,870.50 from residents. It shows an operating profit of $455,270.53 at the end of March 2012.
The Balance Sheet for the Khan Family Trust printed out on 9 May 2012 shows an excess of assets over liabilities of $1,680,446.44.
The Balance Sheets for the 2010 and 2011 financial years show that Samir, trading as Rosehill, incurred losses of $45,585.99 and $287,507.38 respectively.
Mr Michael Dunnett, who is a Chartered Accountant, has experience in conducting formal corporate insolvency engagements and numerous financial viability assessments. He has been given a financial statement for Samir for the financial year ended 30 June 2011 and another for the Khan Family Trust for the same period. He has also been given a diagram of the corporate structure and copies of the affidavit of Mr Chowdhury sworn on 9 May 2012 and of Mrs Kahn dated 30 May 2012. He queried certain aspects but his conclusion was to the effect that he would need to be provided with a greater amount of information regarding both Samir and the Khan Family Trust.
Consequences if Curie were to close
I accept Mrs Kahn’s evidence that she would be in debt personally and that Samir would be likely to be in debt as well. She is 63 years of age and would find it very difficult to regain her financial position. In addition, about 40 staff members would lose their jobs.
If the stay is not granted, Mrs Kahn’s evidence is that she would have to implement a contingency plan immediately. That plan would require her to:
(1)hold a meeting to inform residents and their families that “… the Department has caused us to close and the residents will be relocated”;[12]
(2)obtain vacancy lists from other homes and seeking the assistance of the local Aged Care Assessment Team to place Curie’s residents in other homes;
(3)seek the assistance of a Registered Nurse to assist in placing the residents; and
(4) continue to care for the residents until each one has been relocated.
[12] Affidavit of Mrs Kahn sworn on 7 May 2012 at [13.1]
Mrs Kahn set out her particular concerns regarding the welfare of the residents at Curie in her affidavit sworn on 7 May 2012:
“14. As outlined in the affidavit of Dr Ranasinghe, Curie accepts residents that are difficult to manage. A significant number of the residents’ families have informed me how the relatives have been admitted to Curie after being rejected or removed from other aged care facilities. They have expressed their gratitude for Curie accepting them and attending to their relatives’ needs in the circumstances.
15. The overall impact from a clinical and administrative impact of the closure of Curie on residents is set out in Dr Ranasinghe’s Affidavit. However, many residents will be doubly disadvantaged. This is because Curie is uniquely placed as a provider of specialist Islamic aged care services in addition to other culture-specific services it provides.
16. I believe Curie is one of the few aged care facilities in Australia that provides any kind of services catered specifically to the elderly whose needs are different as a result of their Islamic background and their cultural and ethnic differences. Our residents are from Arabic, Pakistani, Indian, Lebanese, Turkish, Afghani, and other Muslim backgrounds. If Curie is closed down it will be very difficult for the Muslim residents – not only for the residents themselves, but also because their relatives and friends who visit live close by. I only know of one other Muslim place in Australia and that is around Melbourne. Our specialist services include:
16.1Halal food;
16.2segregation of women and men, where possible;
16.3same gender nurses for personal care, where possible;
16.4assistance with wudu and prayers;
16.5 encouragement of all forms of religious activities;
16.6skilled Muslim staff members and external health practitioners available.
As a result, in my opinion, the closure will impose additional hardship on many residents.”
Ms Lynette Murphy is the Assistant Secretary of the Quality and Monitoring Branch in the Office of Aged Care Quality and Compliance in the Department. She has sworn an affidavit on 30 May 2012 addressing issues relating to the relocation of residents at Curie and the availability of alternative places at other accredited residential services. Ms Murphy has annexed a copy of the 103 residential services located closest to Curie showing their distances from Curie and their apparent vacancies. Thirteen appear to have no vacancies. The closest is located 1.3km from Curie when measured in a straight line and the furthest is 11.6 kilometres.
As Mrs Kahn recognises, Ms Murphy observes that it is the approved provider’s responsibility to ensure appropriate care for its residents and to ensure that suitable alternative accommodation is available for them if it is unable to continue to provide care for them. I accept Mrs Kahn’s statement that she drove one former resident of Rosehill several hundred kilometres to another residential care service to see that he was settled. On the basis of Ms Murphy’s affidavit, I also accept that the Department will assist in relocation and did so with Rosehill.
I have read the details relating to the residents at Rosehill and Curie annexed to Ms Murphy’s affidavit. Twenty two residents were relocated from Rosehill. There are 33 residents named as located at Curie at the time. The high care needs of the residents in both Rosehill and Curie are shown by their Aged Care Funding Instrument (ACFI) scores. The mental and behavioural diagnoses show a very similar spread of residents with mental and behavioural disorders. Of the 22 at Rosehill, all but three spoke English and all but seven were born in an English speaking country. Of the 33 at Curie, all but eight spoke English and all but 11 were born in an English speaking country.
Reasons for difficulties in meeting Accreditation Standards
I accept Mrs Kahn’s evidence that she and Samir have experienced difficulties since she was required to transfer her interest in the Rosehill Nursing Home (Rosehill) to her former husband under an order of the Family Court made in November 2008. As her husband has been unsuccessful in his application to become an approved provider in relation to Rosehill, Samir has operated both Rosehill and Curie since 2008. I accept that her view is that her management of Rosehill was compromised by actions of her former husband and that her difficulties with Rosehill meant that Curie suffered.
Mrs Kahn observed in her most recent affidavit sworn on 30 May 2012 that she has found it difficult to follow the progress of the programmes because of delays in being provided with feedback reports from the Agency and the Department. The pattern of feedback has been irregular and she feels that the Administrator’s reports are not given to her simultaneously with their being given to the Department. Therefore, there are delays in her being advised of what is in the Administrator’s reports.
Mrs Kahn also noted that new procedures are being implemented in accordance with the Administrator’s decisions and that “It is natural that it will take staff some time to adapt to the new procedures to the Administrator’s personal satisfaction.”[13] She referred also to there being differences of opinion between the Administrator and the Nurses’ Advisor entirely beyond her control. Dr Ranasinghe makes no reference to any differences. I have no evidence from Ms Brown but I do have an email from Ms Brown to the Department on 8 May 2012 in which she refers to conversations with Dr Ranasinghe. The conversations focused on her concerns about the need to increase supervision of the Registered Nurses and her need to find out about the strategies put in place to identify the care issues that had been identified. She and Dr Ranasinghe would come to an agreed plan so that she was kept informed of the situation “on the floor”.
[13] Affidavit of Mrs Kahn sworn on 30 May 2012 at [25]
CONSIDERATION
A stay application is not the time to decide substantive issues that will be relevant in reviewing the decision and that must be resolved in making a decision. That does not mean that the substantive issues are entirely irrelevant for they are relevant in deciding whether an applicant has prospects of success in pursuing the application. What is required in assessing those prospects is to look at the assertions for which the applicant contends and decide whether, if ultimately established on the evidence, they would bring about the result contended for. In some cases, all that may be needed is a bald assertion. In others something more may be needed and this is such a case. It is such a case because, at the heart of it, is the ongoing health, safety and well-being of members of the community who are not in a position to live independently. Funding to assist those members of the community is provided to a large extent from the community’s funds in the form of residential care subsidies paid by the Commonwealth and, to a lesser but no less important extent, by the residents and/or their families to ensure the ongoing health, safety and well-being of the residents. There must be some material that points to that being so at the stay hearing.
I have not set out the particulars of the way in which the assessment teams have found Curie to be in breach of its expected outcomes. I have attempted in the table in Attachment B to give a flavour of the pattern of compliance and non-compliance. In some instances, is achieved and ongoing for a relatively long period before its not being achieved. I refer to Expected Outcome 4.7 (Infection Control) as an example. In the majority of cases, such as Expected Outcome 2.8 (Pain Management), the Expected Outcome is never met or only rarely met.
Expected Outcome 2.10 (Nutrition and Hydration) is included because reference is made to work done on it in a PCI. I note that Curie has always been compliant in relation to it just as it has in relation to other Expected Outcomes to which no reference is made in either the table or in the summary of Accreditation Standards set out at [97] in Attachment A.
The final Assessment Contact Reports I have been given are dated
28 and 29 May 2012. That is over two months since the first in mid-March. On the evidence of Dr Ranasinghe and the PCIs, I accept that she and Ms Brown and the staff at Curie have worked hard to bring Curie to a state where it meets the Accreditation Standards.
Despite their work, the Assessment Contact Reports show that there is much to be done and that the problems are recurring and indicative of systemic, rather than isolated, issues. The affidavit of Ms Victoria Crawford, the Assistant General Manager of the Agency, refers to examples of clinical care referred to in the Assessment Contact Reports and showing lack of progress over days and weeks. Each taken alone as an isolated incident might cause concern about the individual and the situation but not cause concern about the health, safety and well-being of Curie’s residents. Looked at overall and in the context of issues having been first identified in mid-March and ongoing in May, however, they do cause concern of that sort. One relates to pain management for a resident with a dislocated hip and Curie’s inability to source a suitable mattress to manage her pain. Another to infection control when one resident was served her meal in close contact with another resident who was unwell and who coughed in her direction. A third related to the medication regime for a resident who had attempted to strike a staff member and who had refused to take anti-psychotic medication. The resident was not referred to a medical practitioner or a mental health team when he began to refuse to take his medication even though he had been prescribed a lower dose in order to make it more palatable. Fifteen refusals of his morning medication and ten medications between 10 and 28 May did not lead to referral but a behavioural incident on 20 May 2012 did. Speech pathology requirements for another resident were not conveyed to the kitchen and had not been implemented four and five days later. A further resident’s enteral feeding arrangements were recorded differently in different documents. Other residents have suffered damage to their skin integrity thought to have been caused by continence aids. They were identified on 22 and 27 May 2012 and further difficulties with incorrect use of incontinence aids were identified on 28 and 29 May 2012.
To some extent, I agree with Mrs Kahn that different members of the assessment team have attended Curie. For all that, it can be seen from my note of the members of the team in Attachment B that Ms Trudy Van Dam has been a consistent thread throughout the period. She has missed only four of 26 assessment contacts conducted. Her consistent attendance can give some measure of comfort that she is seeing and assessing what is being done at Curie and the ebb and flow of what is being achieved. It is not a situation in which new sets of eyes are coming to a nursing home each day and seeing new problems and shortcomings because they come with a slightly different perspective or without an historical knowledge of what has gone before. Instead, it is a situation in which variations of the same systemic problems are reported by assessment teams which have, for all but four contacts, a common member
I also note that Ms Kahn has not complained that the shortcomings identified by the assessment teams have not been properly identified or have been misidentified. What she says is that they can be fixed and they have arisen because she has taken her eye off the ball and, rather than attending to Curie, she has attended to the problems at Rosehill, the problems caused by her former husband over the management of Rosehill and her problems generally caused by the conclusion of her marriage.
On the material I have been given, I am not satisfied that it points to Samir’s having the finances to fund the ongoing operation of Curie while undertaking the significant work required to achieve compliance. As a result of the Secretary’s decision to impose sanctions on 9 March 2012, it must necessarily fund the engagement of both an Administrator and a Nurse Adviser for six months. That is a significant ongoing cost. I understand that Mrs Kahn is prepared to provide funds to support Samir by borrowing against her properties and that she expects to be able to renegotiate its loans if the stay order is granted.
I have difficulties with this. Samir is the approved provider and it is its financial viability that is in issue and not that of Mrs Kahn. Even though she is a guarantor for the facilities extended to it by the Bank, there is no evidence to show that Mrs Kahn has an obligation to fund Samir. There is no explanation of Samir’s financial position as opposed to its position in relation to Rosehill and to Curie as separate businesses. It incurred a loss in operating Rosehill and all of its profits from Curie were distributed. Its income is necessarily reduced due to the imposition of sanction because it will not be receive residential care subsidies in respect of new residents moving to Curie during the six months following the Secretary’s decision on 9 March 2012 to impose sanctions. There is no evidence of what the Bank’s continuing attitude will be in relation to funding Samir and its operations. Given that it issued Notices of Default on the basis of the Secretary’s decision on 9 March 2012 to impose sanctions, it may be that my decision whether to stay or not stay the implementation or operation of the Agency’s decision to revoke accreditation will make no difference. I understand from the evidence of Mr Kent that the Bank would be enforcing its securities against the guarantors and not against Samir.[14] That leaves a question over Mrs Kahn’s ability to provide ongoing funds to Samir should it need them.
[14] Affidavit of Rodney Kent sworn on 25 May 2012 at [5]
In this case, I am not satisfied that the material points to Samir’s having reasonable prospects of success in putting forward a case that it is in a financial position to be able to carry out its obligations in relation to its residents at Curie and to bring the home and its facilities to a state where the Assessment Standards are met. Given that the work undertaken over the last two months or so still leaves it with fourteen Expected Outcomes unmet as at 28 May 2012, I am not satisfied that the evidence points to its being able to achieve compliance in a timeframe that is consistent with ensuring the ongoing health, safety and well-being of the residents of Curie while compliance is being achieved.
There is no doubt that movement of residents from their home can be upsetting and disruptive to them and to their families. That can apply not only to the move itself but to their settling into new accommodation. Against that must be balanced the availability of other residential care services that are accredited and so meet the Accreditation Standards. If I were satisfied that Curie could meet those Accreditation Standards in a relatively short period of time, the balance of what is in the interests of the residents and their health, safety and well-being would favour their remaining at Curie. Arrangements have been made for the case to be heard urgently in the Tribunal’s Sydney Registry beginning in the week commencing 23 July 2012 for approximately three weeks. As it is, I am not satisfied on the progress made to date that it will achieve them in a period of time that will not compromise their health, safety and well-being. The closure of Rosehill led to the placement of each of its residents. They are residents whose diagnoses and profiles were similar to those of the residents at Curie. I understand that Mrs Kahn undertook a considerable journey to ensure that one Rosehill resident was placed in a residential care service of his choice. That shows her concern for the residents and her concern has not been called into question. What is in issue is the health, safety and well-being of the residents in the situation of non-compliance at Curie. Their interests favour their being moved.
I have not specifically mentioned the staff at Curie as persons whose interests are affected by the decision under review. They certainly will be for, if I do not make a stay order, I accept Mrs Kahn’s evidence that Curie will have to close after about three weeks. That means that the staff will no longer have positions at Curie. I acknowledge that is a matter of considerable concern but I do not think that their interests are directly relevant in this matter. The Act is concerned with the provision of care to residents and the maintenance of that care at an appropriate level that ensures their health, safety and well-being. The Accreditation Standards and the procedures and monitors that I have outlined in Attachment A are directed to achieving that outcome. They are not directed to ensuring ongoing employment for those engaged in the provision of that care.
Having regard to all of these matters, I am not satisfied that it is desirable to make an order staying or otherwise affecting the operation or implementation of the decision of the Agency made on 29 March 2012 and confirmed by it on 30 April 2012. That means that the order I made on 31 May 2012 remains in place until 4.00pm on 6 June 2012 but not after that.
The scheme of the Act
The Act provides for the Commonwealth to give financial support through the payment of subsidies for the provision of aged care and through the provision of grants for other matters connected with the provision of aged care.[15] Its objects are more specifically set out in s 2-1:
[15] Act, s 3-1
“(a) to provide for funding of aged care that takes account of:
(i)the quality of the care; and
(ii)the type of care and the level of care provided; and
(iii)the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and
(iv)appropriate outcomes for recipients of the care; and
(v)accountability of the providers of the care for the funding and for the outcomes for recipients;
(b)to promote a high quality of care and accommodation for the recipients of aged care services that meets the needs of individuals;
(c)to protect the health and well-being of the recipients of aged care services;
(d)to ensure that aged care services are targeted towards the people with the greatest needs for those services;
(e)to facilitate access to aged care services by those who need them, regardless of race, culture, language, gender, economic circumstance or geographic location;
(f)to provide respite for families, and others, who care for older people;
(g)to encourage diverse, flexible and responsive aged care services that;
(i)are appropriate to meet the needs of the recipients of those services and the carers of those recipients; and
(ii)facilitate the independence of, and choice available to, those recipients and carers;
(h)to help those recipients to enjoy the same rights as all other people in Australia;
(i)to plan effectively for the delivery of aged care services that:
(i)promote the targeting of services to areas of the greatest need and people with the greatest need; and
(ii)avoid duplication of those services; and
(iii)improve the integration of the planning and delivery of aged care services with the planning and delivery of related health and community services;
(i)to promote ageing in place through the linking of care and support services to the places where older people prefer to live.”[16]
[16] Act, s. 2-1(1) In construing these objects, s 2-1(2) provides that: “… due regard must be had to:
Residential care subsidies
“Aged care”, for which the Act makes provision for the payment of subsidies, refers to care in a number of forms including residential care.[17] When paid to “approved providers”[18] for providing residential care to care recipients, the payments in known as a “residential care subsidy”.[19] Care of the sort contemplated by the expression “residential care” means:
[17] Act, s 1-3(1) and Schedule 1-Dictionary, cl 1
[18] See [70]-[74] below
[19] Act, s 41-1
“… 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.”[20]
The word “care” is defined to mean:
“… services, or accommodation and services, provided to a person whose physical, mental or social functioning is affected to such a degree that the person cannot maintain himself or herself independently.”[21]
[20] Act, s 1-3(1) and Schedule 1-Dictionary, cl 1 and s 41-3(1)
[21] Act, s 1-3(1) and Schedule 1-Dictionary, cl 1
Subsidies are paid under Chapter 3 but both Chapters 2 and 4 are relevant in determining their payment and the eligibility for their payment. Residential care subsidies are relevant in this case. They are payable under Part 3.1 of the Act. Subject to certain exceptions that are not relevant in this case, s. 42-1 provides that an approved provider is eligible for residential care subsidy in respect of a day if the Secretary is satisfied that, during that day, the approved holder holds an allocation of places, provides residential care to a care recipient in respect of whom an approval is in force under Part 2.3 as a recipient of residential care and the residential care service through which care is provided meets its accreditation requirement, if any, applying at that time.
Approved provider
In addition to States and Territories and their authorities and local government authorities as provided for in s 8-6, an “approved provider” means a person or body in respect of which an approval under Part 2.1 is in force.[22] Samir is an approved provider but the path to approval is relevant.
[22] Act, s 1-3(1) and Schedule 1-Dictionary, cl 1
If a person applies for approval, the Secretary must approve that person if satisfied that the application has been made under s 8-2, the applicant is a body corporate and suitable to provide aged care and none of its key personnel is a disqualified individual.[23] Once approved, the approved provider becomes subject to the obligations set out in Division 9 of Part 2.1 of the Act and the responsibilities set out in Chapter 4. In general terms, those under Division 9 relate to an approved provider’s obligations to provide information. Those under Chapter 4 relate, again in general terms, to quality of care, user rights in relation to bonds and fees and accountability of the approved provider and are found in Parts 4.1, 4.2 and 4.3 respectively.
[23] Act, s 8-1
I will refer to only one of the responsibilities and it is set out in s 54-1(d) of Part 4.1 of the Act. It provides that the responsibilities of an approved provider in relation the quality of the aged care provided by that approved provider through a residential care service is to comply with the Accreditation Standards made under s 54-2 of the Act. They are provided for in the Quality of Care Principles and may deal with matter such as the health and personal care of care recipients, their lifestyle, safe practices and the physical environment in which residential care is provided and management systems, staffing and organisational development relating to the provision of residential care.[24]
[24] Act, s 54-2(2)
Section 8-3(1) set out matters that the Secretary must consider when deciding whether an applicant for approval is suitable to provide aged care. In addition to matters such as the suitability and experience of the applicant’s key personnel, its ability to provide and its experience in providing aged care and to meet standards and any matters specified in the Approved Provider Principles, the matters include:
“(e) the applicant’s record of financial management, and the methods the applicant uses, or proposes to use, in order to ensure sound financial management; and
(f)if the applicant has been a provider of aged care – its record of financial management relating to the provision of that aged care; and
(g)if the applicant has been a provider of aged care – its conduct as a provider, and its compliance with its responsibilities as a provider and its obligations arising from receipt of any payments from the Commonwealth for providing that aged care; …”
The Secretary must consider the same matters in relation to the applicants’ key personnel. Its “key personnel” includes those who are responsible for the applicant’s executive decisions or concerned with or taking part in its management, the person responsible for its provision of nursing services and those responsible for its day to day operations.[25]
[25] Act, s 1-3(1) and Schedule 1-Dictionary, cl 1 and s 8-3(3)
Accreditation requirement
The “accreditation requirement” referred to in s 42-1 is the subject of s 42-4. A residential care service meets its accreditation requirement at all times during which “there is in force an accreditation of the service by an accreditation body”.[26] It does not meet its accreditation requirement on a particular day if there is in force a determination by an accreditation body that the service does not comply with the standards specified.[27]
[26] Act, s 42-4(1)(a) The “accreditation body means a body to which an accreditation grant is payable”: Act, s 1-3(1) and Schedule 1-Dictionary, cl 1. That body is the Agency as explained in [76]-[77] below.
[27] Act, s 42-4(6)
The accreditation body
Under s 80-1(1) in Part 5.4 of the Act, the Secretary of the Department of Health and Ageing (Secretary) may enter a written agreement with a body corporate. The Agency is a company incorporated under the Corporations Law and with which the Commonwealth has entered that agreement.
Under that agreement, the Commonwealth will make one or more grants of money to that body corporate, and so the Agency, for two purposes:
“(a) accreditation of residential care services in accordance with the Accreditation Grant Principles;
(b)any other purposes specified in the Accreditation Grant Principles, including the performance of any of the functions of the Secretary under this Act that are specified in the Accreditation Grant Principles.”[28]
[28] Act, s 80-1(1)
The Accreditation Grant Principles
The Accreditation Grant Principles (AGP) in accordance with which the Agency must act, are made by Minister for Health and Ageing (Minister) under s 96-1 of the Act. Section 80-1(2) sets out examples of the matters that may be dealt with in the AGP. Among those examples are the accreditation of a residential care service and procedures to be followed in accrediting it and those to be followed in revoking or suspending that accreditation and the matters to be taken into account in both cases.
Since 20 May 2011, the relevant principles have been the Accreditation Grant Principles 2011 (AGP). Part 2 of the AGP deals with applications for accreditation of a residential care service and for re-accreditation of those previously accredited. Part 3 is concerned with the way in which a decision is made on an application for accreditation of a commencing service and Part 4 with that made on an application for re-accreditation of a previously accredited service.
Monitoring accredited services
Once a residential care service has been accredited, both the agency and the approved provider for that service have responsibilities. They are set out in Part 7 of the AGP. In summary, an approved provider for an accredited service must “… have a plan for continuous improvement of the service”,[29] which it must make available to the Agency and to an assessment team conducting an audit or review audit[30] and must:
“(a) comply with the Accreditation Standards and the approved provider’s other responsibilities under the Act; and
(c)undertake a process of continuous improvement for the service, measured against the Accreditation Standards.”[31]
[29] AGP, s 2.43
[30] AGP, s 2.44
[31] AGP, 2.42
For its part, the Agency must undertake assessment contacts with an approved provider for an accredited service.[32] An “assessment contact” is any form of contact other than a site audit or a review audit for a residential care service for any one or more of four purposes: assessment of the approved provider’s performance against the Accreditation Standards; assist the approved provider’s process of continuous improvement; identify if there is a need for a review audit of the service and to give the approved provider additional information or education about the accreditation process and requirements.[33]
[32] AGP, s 2.45
[33] AGP, s 2.4
A review audit is different from an assessment contact. The Agency may decide to arrange a review audit of an accredited service for any one of the reasons set out in s 2.49 of the AGP. The two reasons relevant in this case are:
“(a) the body considers, on reasonable grounds, that the approved provider for the service may not be meeting the Accreditation Standards or the approved provider’s other responsibilities under the Act in relation to the service; or
(b)-(e)…
(f)the approved provider for the service has requested reconsideration of a decision mentioned in item 2, 3, 5 or 6 of the table to section 2.67.”[34]
[34] AGP, s 2.49(1)
Assessment team
The Agency may only appoint a person to an assessment team if he or she is a registered quality assessor, will be available to complete the audit to be undertaken by the team and has neither been employed by nor provided services to the approved provider in the previous three years and has no other pecuniary or other conflict of interest.[35] The minimum number of persons in an assessment team depends on whether it is conducting an audit or a review audit with a minimum of one in the former and two in the latter.[36]
[35] AGP, s 2.37
[36] AGP, s 2.38
An approved provider for a service to be audited may object to the appointment of a person to an assessment team created for a site audit if it does not think that the person is eligible for appointment under s 2.37.[37]
[37] AGP, s 2.40
Quality assessors are registered under Part 12 of the AGP and a register of them is maintained by a registrar under s 2.79. A person may apply to the registrar under s 2.80 and the register must register him or her as a quality assessor if satisfied of the matters set out in s 2.81. Among the conditions that the person must satisfy is that he or she has been recommended to the Agency by the Aged care industry panel after being interviewed and that he or she has successfully completed a course about aged care quality assessment approved by the Agency.[38] Registration is for a period of twelve months. Application for further registration must be made and be accompanied by evidence of all relevant audit experience in the previous twelve months and evidence that the assessor has completed any mandatory training required by the Agency and not less than 15 hours professional development approved by the accreditation body.[39] If satisfied of the matters set out in s 2.83(2), which include matters relating to training and audit experience, the registrar must register the person for a further period of a year.[40]
[38] AGP, s 2.81(1)(a), (b) and (c)
[39] AGP, s 2.82(3)
[40] AGP, s 2.83(2)
Conducting a review audit
A review audit is conducted by an assessment team in accordance with directions given it by the Agency.[41] The assessment team established must have at least two persons to conduct the audit and prepare a review audit report.[42] In undertaking the audit, the team must:
[41] AGP, s 2.52(1)
[42] AGP, ss 2.50(2) and 2.38(2)
“(a) act consistently with any provisions of the Accountability Principles 1998 applying to the audit; and
(b)assess the quality of care and services provided at the service by the approved provider against the Accreditation Standards; and
(c)visit the premises of the service; and
(d)consider any information given to the team about the quality of care, or services provided, at the service by the approved provider:
(i)by a resident or former resident of the service; or
(ii) on behalf of a person mentioned in subparagraph (i), by the person’s representative; and
(e)consider any relevant information about the approved provider given to the team by the Secretary; and
(f)consider any information given to the team by the approved provider.”[43]
[43] AGP, s 2.52
During the review audit, the assessment team must meet the approved provider daily to discuss the progress of the audit. In addition, it must meet at least 10% of the residents of the accredited service, or their representatives, to discuss the care and services they are receiving.[44]
[44] AGP, ss 2.53(1) and (2)
On the last day of the review audit, the assessment team must give the approved provider a written report of matters that the team considers are its major findings from the review audit. Within seven days of receiving that report, the approved provider may give the Agency a written response to it.[45]
[45] AGP, s 2.54
Within that same seven days, the assessment team must give the Agency a written report about the review audit together with a copy of the report of major findings that it gave the approved provider.[46] Together with any other matters it considers relevant, the review audit report must include an assessment of the approved provider’s performance against the Accreditation Standards in relation to the service.[47]
[46] AGP, s 2.55(1)
[47] AGP, s 2.55(2) and (3)
Decision following review audit
Within 14 days of receiving a review audit report, the Agency must decide whether or not to revoke the accreditation of the service.[48] In making that decision, the Agency must take into account all relevant matters including the review audit report, any response by the approved provider to the report of major findings, any information given to the Agency by a resident or former resident or his or her representative, any relevant information given by the Secretary and whether it is satisfied that the approved provider will undertake continuous improvement of the service, measured against the Accreditation Standards, if the service’s accreditation is not revoked.[49]
[48] AGP, s 2.56(1)(a)
[49] AGP, s 2.56(2)
If the Agency decides not to revoke the service’s accreditation, it may vary the period for which the service is accredited.[50] It must decide whether there are any areas in which improvements must be made to meet the Accreditation Standards and the timetable for achieving them and must arrange for assessment contacts.[51] If the Agency decides to revoke the service’s accreditation, it must also decide whether there are any areas in which improvements would be necessary to meet the Accreditation Standards and the arrangements for assessment contacts.[52] In either case, the Agency must notify its decision in accordance with Division 6 of Part 7 of AGP.
[50] AGP, s 2.56(1)(b)
[51] AGP, s 2.58(1)
[52] AGP, s 2.57(1)
When the agency must notify the Secretary
Section 2.64 applies if the Agency finds that an approved provider for a residential care service has failed to meet the Accreditation Standards in relation to the service.[53] As soon as practicable after finding that failure, the Agency must:
“(a) decide whether the failure has placed, or may place, the safety, health or wellbeing of a resident of the service at serious risk; and
(b)if the body decides that the failure has place, or may place, the safety, health or wellbeing of a resident of the service at serious risk – give to the Secretary and the approved provider, in writing:
(i)specific information about the reason for the risk; and
(ii)evidence of the risk; and
(iii)a statement of any other standard in the Accreditation Standards that the approved provider may have failed to meet.”[54]
[53] AGP, s 2.64(1)
[54] AGP, s 2.64(2)
The Agency must also give the approved provider a written notice about the failure to meet the Accreditation Standards. That notice must direct the approved provider to revise its plan for continuous improvement to demonstrate how it will meet those Standards.[55] The approved provider must revise its plan within 14 days of receiving the notice.[56]
[55] AGP, s 2.64(3)
[56] AGP, s 2.64(4)
Section 2.65 of the AGP sets out the other occasions on which the Agency must notify the Secretary and the approved provider in writing. The occasions arise if the Agency has given an approved provider a timetable for improvements under ss 2.33, 2.48, 2.58, 2.60 or 2.61 or under the AGP and, at the end of the time set out in that timetable, it is not satisfied that the level of care and services provided by the approved provider at the residential care service meets the Accreditation Standards.[57] On those occasions, the Agency must set out in writing its reasons for not being so satisfied, details of the evidence it relies on to support its finding and a copy of any other relevant information.[58]
[57] AGP, s 2.65(1)
[58] AGP, s 2.65(2)
The Secretary’ decision
Under s 10-3(1)(b), the Secretary may revoke an approved provider’s approval if satisfied that it has ceased to be suitable for approval. In determining suitability, the Secretary must consider the matters referred to in s 8-3 and may also consider the matters set out in ss 8-3(b)-(h) in relation to its key personnel.[59] The Secretary must give the approved provider notice under s 10-3(3) of the fact that she is considering revocation.
[59] See [74] above
The Accreditation Standards
The Accreditation Standards, they are “… standards for quality of care and quality of life for the provision of residential care on and after the accreditation day”.[60] They are set out in Schedule 2 to the Quality of Care Principles and deal with management systems, staffing and organisational development, health and personal care, resident lifestyle and physical environment and safe systems.[61] Section 18.9 explains that:
“(1) The Accreditation Standards are intended to provide a structured approach to the management of quality and represent clear statements of expected performance. They do not provide an instruction or recipe for satisfying expectations but, rather, opportunities to pursue quality in ways that best suit the characteristics of each individual residential care service and the needs of its residents. It is not expected that all residential care services should respond to a standard in the same way.
(2) The Accreditation Standards apply equally for the benefit of each resident of a residential care service, irrespective of the resident’s financial status, applicable fees and charges, amount of residential care subsidy payable, agreements entered into, or any other matter.”
[60] Act, s 54-2
[61] Quality of Care Principles, s 18.9
Within each Accreditation Standard is a paragraph describing the principle behind the standard and another setting out the intention of the standard. That is consistent with the requirements of s 18.8(3). That paragraph is followed by a description of the Matter Indicator and the Expected Outcome. I will set out only those relied on by the Secretary in making the decisions under review:
“Part 1 Management systems, staffing and organisational development
Principle:Within the philosophy and level of care offered in the residential care service, management systems are responsive to the needs of residents, their representatives, staff and stakeholders, and the changing environment in which the service operates.
Intention of standard:
This standard is intended to enhance the quality of performance under all accreditation standards, and should not be regarded as an end in itself. It provides opportunities for improvement in all aspects of service delivery and is pivotal to the achievement of overall quality.
| Col. 1 Item | Column 2 Matter Indicator | Column 3 Expected Outcome |
| 1.1 | Continuous improvement | The organisation actively pursues continuous improvement |
| 1.2 | Regulatory compliance | The organisation's management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards and guidelines |
| 1.3 | … | … |
| 1.4 | Comments and complaints | Each resident (or his or her representative) and other interested parties have access to internal and external complaints mechanisms |
| 1.5 | … | … |
| 1.6 | Human resource management | There are appropriately skilled and qualified staff sufficient to ensure that services are delivered in accordance with these standards and the residential care service’s philosophy and objectives |
| 1.7 | … | … |
| 1.8 | Information systems | Effective information management systems are in place |
| 1.9 | … | … |
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.
| Col. 1 Item | Column 2 Matter Indicator | Column 3 Expected Outcome |
| 2.1 | Continuous improvement | The organisation actively pursues continuous improvement |
| 2.2 | … | |
| 2.3 | Education and staff development | Management and staff have appropriate knowledge and skills to perform their roles effectively |
| 2.4 | Clinical care | Residents receive appropriate clinical care |
| 2.5 | Specialised nursing care needs | Residents’ specialised nursing care needs are identified and met by appropriately qualified nursing staff |
| 2.6-2.7 | … | … |
| 2.8 | Pain management | All residents are as free as possible from pain |
| 2.9 | … | … |
| 2.10 | Nutrition and hydration | Residents receive adequate nourishment and hydration |
| 2.11-2.12 | … | … |
| 2.13 | Behavioural management | The needs of residents with challenging behaviours are managed effectively |
| 2.14 | Mobility, dexterity and rehabilitation | Optimum levels of mobility and dexterity are achieved for all residents |
| 2.15-2.17 | … | … |
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 residential care service and in the community.
| Col. 1 Item | Column 2 Matter Indicator | Column 3 Expected Outcome |
| 3.1 | … | … |
| 3.2 | Regulatory compliance | The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about resident lifestyle |
| 3.3-3.5 | … | … |
| 3.6 | Privacy and dignity | Each resident’s right to privacy, dignity and confidentiality is recognised and respected |
| 3.7 | Leisure interests and activities | Residents are encouraged and supported to participate in a wide range of interests and activities of interest to them |
| 3.8 | … | |
| 3.9 | Choice and decision-making | Each resident (or his or her representative) participates in decisions about the services the resident receives, and is enable to exercise choice and control over his or her lifestyle while not infringing on the rights of other people |
| 3.10 | … | … |
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
| Col. 1 Item | Column 2 Matter Indicator | Column 3 Expected Outcome |
| 4.1-4.3 | … | … |
| 4.4 | Living environment | Management of the residential care service is actively working to provide a safe and comfortable environment consistent with residents’ care needs. |
| 4.5-4.6 | … | … |
| 4.7 | Infection control | An effective infection and control program |
| 4.8 | … | … |
Allocation of places
Even if a person is an approved provider, a subsidy may only be paid to that person under Chapter 3 for providing aged care in respect of which a place has been allocated.[62] The allocation of places is the subject of Part 2.2 of the Act and is the subject of the Allocation Principles made by the Minister for Health and Aged Care (“Minister”) under s 96-1.[63] Part 2.2 deals with matters such as the Commonwealth’s planning its allocation of places, how people apply for allocations and how they are decided, the transfer of allocations and the variation of conditions for the allocations of places. Division 18 of Part 2.2 is concerned with when allocations cease to have effect. Of relevance in this case is s 18-1(1), which provides that the allocation of a place ceases to have effect if either of the following happens:
“(a) the place is relinquished (see section 18-2);
(b)the allocation is revoked under section 18-5 or Part 4.4.”
[62] Act, s 11-1
[63] Act, s 11-2
Cessation of approvals and allocations by relinquishment or revocation
In the case of residential care, the Secretary may revoke an allocation of a place if an approved provider has not provided that care for a period of 12 months in respect of that place. That is the effect of s 18-5(1)(a) but it is not relevant in this case. Revocation under Part 4.4 is relevant and I will return to that shortly.
| Standard[64] | Matter indicator | 15/03/12 | 29/03/12 | 08/04/12 | 08/04/12 | 28/04/12 | 29/04/12 | 30/04/12 | 30/04/12 | 07/05/12 | 08/05/12 | 09/05/12 | 10/05/12 |
| Assessment team/Other actions and decisions | Marilyn Howson Veronica Hunter | Agency’s decision to revoke accredit-ation | Date for remedial action in PCI[65] | Samir’s assess-ment of progress with PCI | Trudy Van Dam | Trudy Van Dam | Trudy Van Dam | Confirm-ation of Agency’s revocation decision | Ruth Heather; Greg Foley | Trudy Van Dam; Ruth Heather | Trudy Van Dam; Ruth Heather | Trudy Van Dam; Ruth Heather | |
| 1. Management systems, staffing and organisational development | 1.1 Continuous development | Not met | Not met | 28/04/12 | Comm-enced | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met |
| 1.2 Regulatory compliance | Not met | Not met | 28/04/12 | Comm-enced | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 1,3 Education and staff development | 28/04/12 | Comm-enced | |||||||||||
| 1.4 Comments and complaints | Not met | Not met | 02/04/12 28/04/12 | Process complete Comm-enced | Not met | Not met | Not met | ||||||
| 1.6 Human resource management | Not met | Not met | 02/04/12 | Process complete | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 1.8 Information systems | Not met | Not met | 02/04/12 | Process complete | Not met | Not met | Not met | Not met | Not met | Not met | Not met | ||
| 2. Health and personal care | 2.1 Continuous improvement | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | ||||
| 2.3 Education and staff development | Not met | Not met | 02/04/12 | Comm-enced | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 2.4 Clinical care | Not met | Not met | 02/04/12 28/04/12 | Some comm-enced Others not | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 2.5 Specialised nursing care needs | Not met | Not met | 28/04/12 | Complete | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 2.8 Pain management | Not met | Not met | 02/04/12 28/04/12 | Process complete | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 2.10 Nutrition and hydration | 02/04/12 | Process complete | |||||||||||
| 2.13 Behavioural management | Not met | Not met | 02/04/12 | Process complete | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 2.14 Mobility, dexterity and rehabilitation | Not met | Not met | 28/04/12 | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | ||
| 3. Resident lifestyle | 3.2 Regulatory compliance | Not met | Not met | Not met | Not met | ||||||||
| 3.6 Privacy and dignity | Not met | Not met | 02/04/12 28/04/12 | Process complete Comm-enced | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 3.9 Choice and decision-making | 02/04/12 | Process complete | |||||||||||
| 4. Physical environment and safe systems | 4.4 Living environment | Not met | Not met | 02/04/12 28/04/12 | Process complete Comm-enced | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met |
| 4.7 Infection control | Not met | Not met | 28/04/12 | Comm-enced | Not met | Not met | Not met | ||||||
| Standard[66] | Matter indicator | 11/05/12 | 12/05/12 | 13/05/12 | 14/05/12 | 15/05/12 | 16/05/12 | 17/05/12 | 18/05/12 | 19/05/12 | 20/05/12 | 21/05/12 | 22/05/12 |
| Assessment team | Ruth Heather; Greg Foley | Trudy Van Dam; Helen Ledwidg | Trudy Van Dam | Trudy Van Dam; Helen Ledwidg | Trudy Van Dam | Trudy Van Dam; Richard Jamssems | Trudy Van Dam | Trudy Van Dam | Trudy Van Dam | Trudy Van Dam | Trudy Van Dam; Margaret McCartney | Assessment Contact Advice | |
| 1. Management systems, staffing and organisational development | 1.1 Continuous development | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met |
| 1.2 Regulatory compliance | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 1.4 Comments and complaints | |||||||||||||
| 1.6 Human resource management | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |||
| 1.8 Information systems | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 2. Health and personal care | 2.1 | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met |
| 2.3 Education and staff development | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 2.4 Clinical care | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | ||
| 2.5 Specialised nursing care needs | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 2.8 Pain management | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 2.10 Nutrition and hydration | Not met | Not met | |||||||||||
| 2.13 Behavioural management | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |||
| 2.14 Mobility, dexterity and rehabilitation | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |
| 3. Resident lifestyle | 3.2 Regulatory compliance | Not met | Not met | ||||||||||
| 3.6 Privacy and dignity | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | |||||
| 3.7 Leisure interests and activities | Not met | Not met | Not met | Not met | Not met | Not met | Not met | ||||||
| 3.9 Choice and decision-making | |||||||||||||
| 4. Physical environment and safe systems | 4.4 Living environment | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | Not met | ||
| 4.7 Infection control |
[64] Accreditation Standards
[65] Plan of Continuous Improvement
[66] Accreditation Standards
| Standard[67] | Matter indicator | 23/05/12 | 23/05/12 | 23/05/12 | 24/05/12 | 25/05/12 | 26/05/12 | 27/05/12 | 28/05/12 |
| Assessment team | Trudy Van Dam | Date for remedial action in PCI | Samir’s assess-ment of progress with PCI | Trudy Van Dam | Trudy Van Dam | Trudy Van Dam | Trudy Van Dam | Margaret McCart-ney; Annette Chennell | |
| 1. Management systems, staffing and organisational development | 1.1 Continuous development | Not met | 28/04/12 | Process in progress | Not met | Not met | Not met | Not met | Not met |
| 1.2 Regulatory compliance | Not met | 28/04/12/28/05/12 | Process in progress/Process in progress | Not met | Not met | Not met | Not met | Not met | |
| 1.4 Comments and complaints | 28/04/12 | Process in progress | |||||||
| 1.6 Human resource management | Not met | 02/04/12/28/06/12 | Process complete | Not met | Not met | Not met | Not met | Not met | |
| 1.7 Inventory and equipment | 28/06/12 | Process in progress | |||||||
| 1.8 Information systems | Not met | 28/04/12/28/06/12 | Process in progress | Not met | Not met | Not met | Not met | Not met | |
| 2. Health and personal care | 2.1 | Not met | Not met | Not met | Not met | Not met | Not met | ||
| 2.3 Education and staff development | Not met | 28/04/12 | Process in progress/Some complete | Not met | Not met | Not met | Not met | Not met | |
| 2.4 Clinical care | Not met | 02/04/12/28/05/12 | Process complete/process commenced | Not met | Not met | Not met | Not met | Not met | |
| 2.5 Specialised nursing care needs | Not met | 28/04/12/ASAP | Process complete/Process in progress | Not met | Not met | Not met | Not met | Not met | |
| 2.6 Other health and related services | 28/05/12 | Process in progress | |||||||
| 2.7 Medication management | 28/05/12 | Process complete | |||||||
| 2.8 Pain management | Not met | 02/04/12/28/05/12 | Process complete/ Process complete and process in progress | Not met | Not met | Not met | Not met | Not met | |
| 2.10 Nutrition and hydration | 02/04/12 | Process complete | |||||||
| 2.12 Continence management | 28/05/12 | Process complete | |||||||
| 2.13 Behavioural management | Not met | 02/04/12 | Process complete Staff edu-cation in progress | Not met | Not met | Not met | Not met | Not met | |
| 2.14 Mobility, dexterity and rehabilitation | Not met | 28/04/12 | Process in progress | Not met | Not met | Not met | Not met | Not met | |
| 3. Resident lifestyle | 3.2 Regulatory compliance | ||||||||
| 3.6 Privacy and dignity | Not met | 02/04/12 | Process complete | Not met | Not met | Not met | Not met | Not met | |
| 3.7 Leisure interests and activities | Not met | ||||||||
| 3.9 Choice and decision-making | 02/04/12 | Process complete | |||||||
| 3.10 Resident security of tenure and responsibilities | 28/06/12 | Process in progress | |||||||
| 4. Physical environment and safe systems | 4.4 Living environment | 28/04/12/ASAP/28/06/12 | Process in progress/Some complete | Not met | Not met | Not met | |||
| 4.6 Fire, security and other emergencies | ASAP | Process complete and continue | |||||||
| 4.7 Infection control | Not met | 28/04/12/28/05/12 | Process complete/Process complete and continue | Not met | Not met | Not met | Not met | ||
| 4.8 Catering, cleaning and laundry services | 28/05/12 | Process in progress |
[67] Accreditation Standards
I certify that the preceding ninety nine paragraphs and Attachments A and B are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Leah Berardi Associate
Date of Hearing 8, 9 and 31 May 2012
Dates of Decision 5 June 2012
Counsel for the Applicant Mr R De Robillard
Solicitor for the Applicant Mr Andrew Imrie
Russell Kennedy
Counsel for the Respondent Mr C Gunst QC
Solicitor for the Respondent Mr Matthew Bock
Clayton Utz, Lawyers
(a) the limited resources available to support services and programs under this Act; and (b)the need to consider equity and merit in accessing those resources.”
19
5
4