THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.) and SECRETARY, DEPARTMENT OF HEALTH AND AGEING
[2010] AATA 536
•20 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 536
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1964, 2765
GENERAL ADMINISTRATIVE DIVISION ) Re THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q.) Applicant
And
SECRETARY, DEPARTMENT OF HEALTH AND AGEING
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date20 July 2010
PlaceBrisbane
Decision A. In application 2009/1964 the decision is set aside.
B. In application 2009/2765 no decision is necessary.
............Signed.................
Deputy President
CATCHWORDS
HEALTH & AGED CARE – Aged Care Standards and Accreditation Agency Ltd – support contact visit by agency – decision to revoke approval under Part 2.1 of the Aged Care Act 1997 (Cth) – satisfied that expected outcome Item 2.10 “Nutrition and hydration” achieved – in application 2009/1964 the Tribunal sets aside the decision – decision not to wholly lift sanctions imposed – in application 2009/2765 no decision necessary
Accreditation Grant Principles 1999, ss 3.20(1), 4.6(2)
Aged Care Act 1997 (Cth), Parts 2.1, 4.1, 4.4, 5.4, ss 54-1, 65-1, 65-2, 66-1(a), 66-1(c)(ii), 66-2(1)(a)(iii), 67-1, 67-5(2), 68-3, 85-5, 96-1
Aged Care Amendment (2008 Measures No. 2) Act 2008, s 199, schedule 1
Quality of Care Principles 1997, ss 18.8(2), 18.9(1), schedule 2
Sanctions Principles 1997, ss 22.17, 22.19
Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843; (2004) 138 FCR 428
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Waterford & Department of the Treasury (No 2) (1984) 5 ALD 588
Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 248
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
REASONS FOR DECISION
20 July 2010 Deputy President P E Hack SC Introduction
The Uniting Church in Australia Property Trust (Q) is a body corporate constituted under the provisions of the Uniting Church in Australia Act 1977 (Qld). It operates under the name “Blue Care”, a term I will use in these reasons. Blue Care operates some 54 residential aged care facilities in Queensland and Northern New South Wales.
One of those facilities is, and was, the Mareeba Garden Settlement Hostel (Mareeba Garden) in Mareeba, North Queensland. In December 2008, at the time of the events in issue in these proceedings, Mareeba Garden provided for 58 residents of whom 44 required “high care”. Mareeba Garden catered, in particular, for residents with dementia and related disorders.
On 16 December 2008 two assessors employed by the Aged Care Standards and Accreditation Agency Ltd (the Agency), Ms Melanie Duncan and Ms Andrea Hopkinson, undertook an unannounced support contact visit to Mareeba Garden. They made certain observations that led them to conclude that Mareeba Garden did not meet the expected outcome that “residents receive adequate nourishment and hydration”. Their findings were considered by Mr Ken Jones, the State Manager of the Agency. On 17 December 2008 Mr Jones reported to the Secretary, Department of Health and Ageing (the respondent in these proceedings) that there was a “serious risk” to residents of Mareeba Garden. Mr Jones recommended that sanctions be imposed on Mareeba Garden.
On that same day, a delegate of the Secretary made a decision to impose sanctions on Blue Care. That decision was affirmed on reconsideration. In February 2009, a further decision was made by another delegate of the Secretary not to wholly lift the sanctions imposed. The decisions to impose the sanctions and to refuse, in part, to lift the sanctions are the subject matter of two applications in the Tribunal.
Legislative background
The Aged Care Act 1997 (the Act) provides a mechanism whereby the Commonwealth can provide financial support in the form of subsidies and grants for the provision of aged care or matters connected with the provision of aged care. Entities such as Blue Care are “providers” of aged care. The Act creates a mechanism for providers to be approved, and thus eligible to receive subsidies, and for the continuing scrutiny of the quality of the services provided to aged care “recipients”.
By and large that scrutiny is undertaken by the Agency, a body corporate that has entered into a written agreement with the Commonwealth under Part 5.4 of the Act. By virtue of s 96-1 of the Act the Minister is empowered to make “Principles” for the performance of functions and duties under the Act. The Accreditation Grant Principles 1999 and the Quality of Care Principles 1997, which are relevant to these proceedings, have been made under s 96-1 of the Act.
The Accreditation Grant Principles,
“… set out the procedures to be followed, and the matters to be taken into account, by the Agency for accreditation of residential care services, the Agency’s responsibilities for services that have received accreditation, and conditions to which the accreditation grant is subject”.
It is unnecessary, for present purposes, to examine the processes involved in accreditation, whether initial or continuing. It is enough to notice that a residential care service, once accredited, must meet the obligations of accreditation and that the Agency has a role to assist the accredited provider in doing so. The Agency’s primary role is described thus in s 3.20(1) of the Accreditation Grant Principles:
“(1) The [Agency] must carry out regular supervision of an accredited residential care service to ensure compliance with the Accreditation Standards and other responsibilities under the Act.”
That supervision is carried out by what are described as “support contacts”. Where the Agency believes on reasonable grounds that an accredited residential care service is not meeting its obligation it may arrange for a “review audit”. A review audit obliges the Agency to consider whether to revoke, or not revoke, a service’s accreditation.
Approved providers have responsibilities relating to the aged care provided. They are set out in details in Chapter 4 of the Act. They include the responsibility[1],
“(a) to provide such care and services as are specified in the Quality of Care Principles in respect of aged care of the type in question;
(b) to maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met;
…
(d) if the care is provided through a residential care service … - to comply with the Accreditation Standards made under section 54-2.”
Mareeba Garden provides care to its residents through a residential care service.
[1] See s 54-1 of the Act.
The Quality of Care Principles 1997 are made under s 96-1 of the Act. They detail a number of Standards, including the Accreditation Standards, which approved providers must comply with. The Accreditation Standards are set out in Schedule 2 of the Quality of Care Principles. Their role is described in s 18.9 of the Quality of Care Principles in this way:
“(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.”
The Accreditation Standards deal with four “matters”: (a) management systems, staffing and organisational development; (b) health and personal care; (c) resident lifestyle; and (d) physical environment and safe systems[2]. The accreditation standard for a matter comprises a Principle, a matter indicator and an expected outcome.
[2] Quality of Care Principles s 18.8(2).
It is as well to set out the Accreditation Standards in full.
“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.
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Item
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Matter Indicator
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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 Education and staff development Management and staff have appropriate knowledge and skills to perform their roles effectively 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 Planning and leadership The organisation has documented the residential care service’s vision, values, philosophy, objectives and commitment to quality throughout the service 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 Inventory and equipment Stocks of appropriate goods and equipment for quality service delivery are available 1.8 Information systems Effective information management systems are in place 1.9 External services All externally sourced services are provided in a way that meets the residential care service’s needs and service quality goals Part 2 Health 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.
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Item
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Matter Indicator
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Expected Outcome
2.1 Continuous improvement The organisation actively pursues continuous improvement 2.2 Regulatory compliance The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about health and personal care 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 Other health and related services Residents are referred to appropriate health specialists in accordance with the resident’s needs and preferences 2.7 Medication management Residents’ medication is managed safely and correctly 2.8 Pain management All residents are as free as possible from pain 2.9 Palliative care The comfort and dignity of terminally ill residents is maintained 2.10 Nutrition and hydration Residents receive adequate nourishment and hydration 2.11 Skin care Residents’ skin integrity is consistent with their general health 2.12 Continence management Residents’ continence is managed effectively 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 Oral and dental care Residents’ oral and dental health is maintained 2.16 Sensory loss Residents’ sensory losses are identified and managed effectively 2.17 Sleep Residents are able to achieve natural sleep patterns Part 3 Resident 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.
Col. 1
Item
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Matter Indicator
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Expected Outcome
3.1 Continuous improvement The organisation actively pursues continuous improvement 3.2 Regulatory compliance The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about resident lifestyle 3.3 Education and staff development Management and staff have appropriate knowledge and skills to perform their roles effectively 3.4 Emotional support Each resident receives support in adjusting to life in the new environment and on an ongoing basis 3.5 Independence Residents are assisted to achieve maximum independence, maintain friendships and participate in the life of the community within and outside the residential care service 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 Cultural and spiritual life Individual interests, customs, beliefs and cultural and ethnic backgrounds are valued and fostered 3.9 Choice and decision-making Each resident (or his or her representative) participates in decisions about the services the resident receives, and is enabled to exercise choice and control over his or her lifestyle while not infringing on the rights of other people 3.10 Resident security of tenure and responsibilities Residents have secure tenure within the residential care service, and understand their rights and responsibilities Part 4 Physical 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
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Matter Indicator
Column 3
Expected Outcome
4.1 Continuous improvement The organisation actively pursues continuous improvement 4.2 Regulatory compliance The organisation’s management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards, and guidelines, about physical environment and safe systems 4.3 Education and staff development Management and staff have appropriate knowledge and skills to perform their roles effectively 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 Occupational health and safety Management is actively working to provide a safe working environment that meets regulatory requirements 4.6 Fire, security and other emergencies Management and staff are actively working to provide an environment and safe systems of work that minimise fire, security and emergency risks 4.7 Infection control An effective infection control program 4.8 Catering, cleaning and laundry services Hospitality services are provided in a way that enhances residents’ quality of life and the staff’s working environment
Where, in performing its functions, the Agency identifies a failure to comply with the Accreditation Standards, it must decide whether the failure has placed, or may place, the safety, health or wellbeing of the care recipients at serious risk[3]. If it does so, it must tell the Secretary, and the approved provider, in writing, about the failure. Part 4.4 of the Act deals with the consequences of non-compliance. It allows the Secretary to impose sanctions on an approved provider that does not comply with the responsibilities under Part 4.1, Part 4.2 or 4.3 of the Act.
[3] Accreditation Grant Principles s 4.6(2).
The power to impose sanctions is expressed by s 65-1 in these terms:
“65‑1 Imposition of sanctions
The Secretary may impose sanctions (see Division 66) on an approved provider if:
(a)the approved provider has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3; and
(b)the Secretary is satisfied that it is appropriate to impose sanctions on the approved provider (see section 65‑2); and
(c)the Secretary complies with the requirements of Division 67.”
Prior to 1 January 2009 s 65-2 of the Act read:
“65‑2 Appropriateness of imposing sanctions
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;
(d)whether the approved provider has failed to comply with any undertaking to remedy the non‑compliance;
(e)any other matters specified in the Sanctions Principles.”
By virtue of amendments made by Items 116 and 117 of the Schedule to the Aged Care Amendment (2008 Measures No. 2) Act 2008 two further considerations were added to s 65-2 as follows:
“(ca) whether the non-compliance would threaten the health, welfare or interests of future care recipients;”
“(da) the desirability of deterring future non-compliance”
Additionally sub-section 65-2(2) was added[4]. It provides,
“(2) However, whether the non-compliance threatens or would threaten the health, welfare or interests of current and future care recipients is to be the Secretary’s paramount consideration.”
[4] By Item 118.
There is controversy, dealt with below, whether these amendments are to be considered for the purposes of these proceedings. For the moment, it will suffice to note the following transitional provisions from the amending Act.
“199 Application of amendments relating to the imposition of sanctions
(1)The amendments made by items 115, 116, 117 and 118 apply in relation to decisions made on or after the commencing day on 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 of the Aged Care Act 1997 (as in force at that time).
(2)The amendment made by item 119 applies to sanctions imposed on or after the commencing day on an approved provider that has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3 of that Act (as in force at that time).”
Where the Secretary proposes to impose a sanction with a temporal element regard must be had to the matters specified in s 22.17 of the Sanctions Principles 1997 as follows:
“22.17 The matters
The matters are:
(a)whether the non-compliance is of a minor or serious nature; and
(b)whether the non-compliance has happened before, and, if so, how often; and
(c)whether the non-compliance threatens or threatened the health, welfare or interests of care recipients; and
(ca)whether the non‑compliance would threaten the health, welfare or interests of future care recipients; and
(d)whether the approved provider has failed to comply with any undertaking to remedy the non-compliance; and
(e)the period likely to be needed to establish whether any improvement in compliance can be sustained.”
Paragraph (ca) was added, with effect from 1 January 2009, by the Sanctions Amendment Principles 2008 (Cth) (No 1).
The general scheme of Part 4.4 of the Act is that, ordinarily, the Secretary must not impose sanctions without following the processes in s 67-1 of the Act. That requires the Secretary to give the approved provider a “notice of non-compliance”, which must, amongst other things, set out details of the non-compliance and the action required to remedy the non-compliance, and must invite the approved provider to make written submissions addressing the matter within a specified time. Thereafter, the Secretary may give a “notice of intention to impose sanctions” or a “notice to remedy non-compliance”.
The former notice is appropriate where, in effect, the Secretary is not satisfied with the approved provider’s response. But, in that case, the approved provider must be given a further opportunity to make submissions to the Secretary which the Secretary is bound to consider. The alternative is that the Secretary may be satisfied that the approved provider’s response proposes appropriate action to remedy the non-compliance. In such a case the Secretary may permit the provider to give a written undertaking to remedy the non-compliance. Breach of that undertaking might lead to the imposition of sanctions.
However the procedures in s 67-1 of the Act for giving notices of this nature do not apply,
“if the Secretary is satisfied that, because of the approved provider’s non-compliance, there is an immediate and severe risk to the safety, health or well-being of care recipients to whom the approved provider is providing care.”[5]
The present case is one where the Secretary was satisfied of these matters and thus was not required to give the notices that would otherwise have been required. The Secretary’s determination of that state of satisfaction is not reviewable in the Tribunal and it is no part of these proceedings to determine whether the Secretary ought to have been so satisfied.
[5] See s 67-1(2) of the Act.
Once the Secretary has decided to impose a sanction, a notice, setting out the matters required by s 67-5(2) of the Act, must be given to the approved provider.
A sanction imposed by the Secretary may be lifted on the application of an approved provider. Section 68-3 of the Act provides:
“68‑3 Lifting of sanctions
In deciding whether it is appropriate for the sanction to be lifted, the Secretary must have regard to:
(a)whether the approved provider is complying with its responsibilities under Parts 4.1, 4.2 and 4.3; and
(b)any other matter specified in the Sanctions Principles.”
Section 22.19 of the Sanctions Principles requires that regard be had to the matters mentioned in s 22.17 of the Sanctions Principles and to whether any changes made by the approved provider are likely to result in a sustained improvement in the approved provider’s compliance with its responsibilities.
A decision by the Secretary under s 65-1 of the Act to impose a sanction and a decision under s 68-3 to refuse to lift a sanction are each “reviewable decisions”. Where the Secretary has made a reviewable decision, a person whose interests are affected by the decision may request the Secretary to review the decision. The Secretary must reconsider the decision and, confirm or vary the decision or set it aside and substitute a new decision. A reviewable decision that has been confirmed, varied or set aside may be reviewed in the Tribunal.
The decision-making process
As part of the process of the support contact visit on 16 December 2008, a “support contact record” dated 17 December 2008 was prepared by Ms Duncan and Ms Hopkinson. That report led Mr Ken Jones, the Agency’s State Manager, to make a “serious risk report” to the Secretary on the same day. Later on 17 December 2008, a delegate of the Secretary made a decision under s 65-1 of the Act to impose sanctions on Blue Care. Those sanctions comprised:
(a)revocation of approval under Part 2.1 as a provider of aged care services with that revocation not to take effect provided that an adviser, approved by the Commonwealth, who had the appropriate skills, qualifications and background, was appointed to assist Blue Care to comply with its responsibilities at Mareeba Garden. Sections 66-1(a) and 66-2(1)(a)(iii) of the Act were relied on as the basis of the imposition of those sanctions. The sanction was to take effect from 6 months from 17 December 2008;
(b)restriction of approval under Part 2.1 as a provider of aged care services to care recipients other than those to whom care was commenced after the sanction takes effect. Section 66-1(c)(ii) of the Act was relied upon. The sanction was to take effect from 6 months from 17 December 2008.
Another assessor, Ms Glenda Cherry, attended Mareeba Garden on 18 and 19 December 2008. The Support Contact Records produced by her of those visits concluded that the serious risk remained. A review audit was conducted at Mareeba Garden by assessors Ms Lyntara Quirke and Mr Stewart Brumm from 20 to 29 December 2008. On 22 December 2008, they reported that the serious risk no longer remained at Mareeba Garden. Their review audit report concluded that Mareeba Garden satisfied its expected outcomes except in relation to “information systems” and “nutrition and hydration”.
Mr Brumm undertook a further support contact visit to Mareeba Garden on 7 January 2009 and produced a Support Contact Record dated 13 January 2009.
On 14 January 2009, solicitors acting for Blue Care requested the Secretary to reconsider the decision of 17 December 2008 to impose sanctions. Then, on 22 January 2009, the solicitors applied, pursuant to s 85-5 of the Act, to have the sanctions that had been imposed lifted. As a consequence of that application a decision was made on 20 February 2009, by a delegate of the Secretary, to lift that part of the sanctions that restricted approval under Part 2.1 to residents cared for by Blue Care prior to the sanction date but to refuse to lift the other sanction. That decision was a reviewable decision and reconsideration of it was sought by the solicitors on 20 March 2009
Mr Brumm and Ms Cherry undertook a support contact visit on 11 February 2009 and produced a Support Contact Record dated 19 February 2009.
On 7 April 2009, a decision was made on reconsideration to confirm the decision of 17 December 2008 imposing sanctions. That led to the making of application 2009/1964, lodged in the Tribunal on 5 May 2009. The reviewable decision of 17 December 2008 is the subject matter of that application.
On 25 May 2009, a decision was made on the reconsideration of the decision to only partly lift the sanctions. By that decision it was decided that the remaining sanction was to cease to apply with effect from the date of the decision. The decision was characterised as one to set aside the original decision and to substitute a new one. That decision of 25 May 2009 is the subject matter of application 2009/2765, lodged in the Tribunal on 19 June 2009.
Mareeba garden
Mareeba Garden has been accredited as an aged care facility since 2000 when the present system of accreditation was introduced however it was originally constructed, and commenced operations, in or about 1978. In December 2008, there were some 40 clinical staff together with other support staff such as kitchen, maintenance, cleaning and administration.
Local control was in the hands of Ms Lesley Walton who held the position described as service manager. She was responsible for both residential care and community care. Ms Cathie Kenyon was the assistant service manager. Ms Kenyon lived on the premises and was responsible for day to day management of Mareeba Garden, reporting to Ms Walton.
The most senior clinical staff member was Ms Nell Poole, a level 2 registered nurse. Ms Poole was designated as the Clinical Nurse. Ms Poole has had almost 40 years experience as a registered nurse in a variety of settings. Ms Poole was supported by other registered nurses (RN’s), endorsed enrolled nurses (EEN’s) and assistants in nursing (AIN’s). RN’s have completed their nursing training, either by obtaining tertiary qualifications in nursing or by hospital training. EEN’s have completed a pre-enrolment qualification in nursing at a TAFE college or similar institution. All EEN’s at Mareeba Garden had been endorsed to dispense prescription medication under the supervision of an RN. AIN’s have obtained a Certificate 3 in Aged Care. They provide the bulk of personal care to residents, assisting with hygiene and toilet needs as well as with eating and drinking where required.
Mareeba Garden had three wings. At any given time there would be two RN’s (one of whom might be Ms Poole) working in the three wings together with EEN’s and AIN’s. Ms Poole worked as clinical nurse during the weekdays.
Residents were attended by local general practitioners. It was usual for RN’s to accompany the general practitioner. Other health professionals visited as required. In the course of these reasons it will be necessary to make reference to some of the residents at Mareeba Garden. I propose to refer to residents by reference to a cipher in the decision published and will draft these reasons in a way that does not reveal the gender of residents. The annexure to these reasons, which will be available only to the parties and their advisors, provides the names of the residents (whose nursing notes comprise Exhibit 6) concerned.
Some preliminary issues
I should start by noting some matters that are not in issue and some others that are.
Despite the Secretary calling evidence from Agency assessors of their observations made and conversations had on visits to Mareeba Garden after 16 December 2008, it is accepted that those matters are not directly relevant to the appropriateness of sanctions. The written submissions on behalf of the Secretary put the matter in this way[6]:
“The question of appropriateness of sanctions has to be determined after considering the facts as they stood on 16 December 2008.”
Thus, it is said, the only evidence that directly relates to the position at Mareeba Garden as at that date is that of Ms Poole, Mareeba Garden’s clinical nurse, and the two Agency assessors who visited on 16 December 2008, Ms Duncan and Ms Hopkinson.
[6] Exhibit 59 at [8].
The Secretary however accepts that evidence of later events can be relevant if it assists in understanding the extent of non-compliance. As will appear[7], the Secretary accepts, for example, that the swift remedial action taken by Blue Care may be relevant to demonstrate that matters of non-compliance were quickly remedied.
[7] See paragraph [44] below.
Despite the narrow factual focus of the decision called for there are three aspects of the content of the decision making process on which the parties do not agree. The three issues are:
(a)whether the Tribunal is bound to apply the statute law as it was at the time of the original decision or as it now is;
(b)whether (as Blue Care contends) the Tribunal is limited to the
characterisation of non-compliance found by the original decision maker i.e. Item 2.10, Nutrition and hydration, of the Accreditation Standards, or whether (as the Secretary contends) it is open to use the facts as found to constitute non-compliance with other expected outcomes;
(c)whether, in considering the appropriateness of sanctions, the Tribunal is entitled to take into account Blue Care’s response to the matters raised in the original decision and, if so, for what purpose.
The first issue arises as a consequence of the addition to the Act of ss 65-2(1)(ca) and (da) and s 65-2(2). From an early time in its history the Tribunal has operated on the basis that it is required to apply the law as at the date of the hearing, absent any question of accrued rights or liabilities[8]. Mr Keim SC, who led Ms Klease for Blue Care, submitted that Blue Care had an accrued liability as at 17 December 2008 such that the ordinary rule did not apply. I do not agree but ultimately it seems to me not to matter. The conclusions I have reached are the same regardless of which version of the statute is applied. To my mind the amendments merely made explicit what had earlier been implicit.
[8] See Re Costello & Secretary, Department of Transport (1979) 2 ALD 934, 944; Commonwealth v Esber (1991) 29 FCR 324, 326.
The decision made on 17 December 2008 reflected the conclusion that Mareeba Garden had failed to satisfy Item 2.10, Nutrition and hydration, with the result that Mareeba Garden, in the view of the decision-maker, had failed to comply with s 54-1(d) of the Act, thus satisfying the criteria in s 65-1(a) of the Act. No conclusion was reached whether there had been non-compliance with any other expected outcome. That has the consequence, so Blue Care submits, that the matters found to exist on that day cannot be relied upon in these proceedings as demonstrating non-compliance with any expected outcome other than Item 2.10. The decision which is the subject matter of these proceedings was a decision that found non-compliance with Item 2.10 (and not any other expected outcome) and imposed sanctions.
Reliance is placed upon some observations made in the judgments in Shi v Migration Agents Registration Authority[9]. That case concerned a decision of the Authority to cancel Mr Shi’s registration as a migration agent because the Authority was satisfied that he was not a person of integrity or a fit and proper person to give migration advice[10] and that he had not complied with the prescribed Code of Conduct[11]. Blue Care places emphasis upon observations of Hayne and Heydon JJ[12] that the first question for the Tribunal was whether it,
“was satisfied that either of the s 303(1) [Migration Act] grounds said to be engaged in this case was made out …”
[9] [2008] HCA 31; (2008) 235 CLR 286.
[10] Migration Act 1958 (Cth), s 303(1)(f).
[11] Migration Act 1958 (Cth), s 303(1)(h).
[12] At [96].
Kiefel J (with whom Crennan J agreed on this point) said this:
“The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.”
That passage, submits Blue Care, demonstrates that the question for the Tribunal here is not whether there was non-compliance with the expected outcomes in any respect but whether the non-compliance with Item 2.10 is established.
But these observations must be read in their context and the context makes clear it was the decision to cancel registration that was the subject matter of the proceedings. Indeed Kirby J said[13]:
“Circumstantial changes may sometimes be adverse to an applicant before the Tribunal. Given the Tribunal's powers in certain circumstances to make a decision ‘in substitution for’ a decision of the Tribunal which has been set aside upon review, it would be remarkable if the substituted decision could not take into account evidence of relevant, and even critical, supervening events. Such events might include the intervention of bankruptcy, or a criminal conviction for an offence of dishonesty of significance for the continued registration of the agent under the Migration Act.”
Given that bankruptcy is, of itself, a basis of cancellation of registration, his Honour’s remarks are inconsistent with the submissions by Blue Care.
[13] At [49].
The Tribunal undertakes merits review. It is not concerned with, nor limited by, the process of reasoning by which the primary decision-maker arrived at the decision under review; it is concerned only to decide whether, on the material before the Tribunal, the decision made was the correct or preferable one[14]. Thus it was established early in the Tribunal’s history that:
“the decision-maker, in review proceedings before the Tribunal, is not locked into the reasons that may have actuated [the] decision at the time when it was made.”[15]
However, as the observations of Kiefel J demonstrate, the Tribunal is not a primary investigator, it relies on the parties to raise the issues, all the more so where they are represented by very experienced lawyers.
[14] Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409, 419.
[15] Re Waterford & Department of the Treasury (No 2) (1984) 5 ALD 588, 598.
It follows that I do not accept Blue Care’s argument and conclude that it is open to the Secretary to argue, and the Tribunal to find, that there was non-compliance with expected outcomes other than Item 2.10.
The debate about the third question was considerably resolved by the Secretary’s concession that, having regard to the decision in Shi, the decision of Branson J in Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd[16] is no longer to be regarded as good law in cases such as the present[17]. In light of that concession it seems to me that it is enough to say that evidence of events subsequent to the date of the decision may, (but not must), be considered as being demonstrative of the extent or otherwise of shortcomings on the day of the decision. Put in another way, it might be more readily concluded that shortcomings were minor if they were demonstrated to have been remedied in, say, a matter of hours than had it taken a period of days to remedy them. Conversely, it might be more readily concluded that shortcomings were significant where it is demonstrated that much time was required to remedy them.
[16] [2004] FCA 843; (2004) 138 FCR 428.
[17] Transcript p. 36, l 10-15.
The secretary’s case
Given that the nature of the present contest is that the Secretary contends that a certain state of facts existed at Mareeba Garden on 16 December 2008 and contends that the state of facts, when considered against the statutory criteria, warrants affirmation of the decisions made, it seems convenient to start by recording the facts that the Secretary invites me to find about the situation at Mareeba Garden at that time.
The findings sought are these:
(a) that residents weights were recorded in weight charts but were not analysed;
(b) that residents had been recorded as experiencing unplanned weight loss;
(c) that the processes that required that Ms Poole be notified of weight loss were not being followed and accordingly no monitoring of weight loss was being undertaken;
(d) that residents were not being referred to a dietician when they ought to have been;
(e) that the recommendations of the dietician were not implemented promptly;
(f) that no dietician was available generally in the period between June and December 2008;
(g) that the “supplements register” was out of date with the result that residents who were meant to be receiving dietary supplements were not;
(h) that an EEN was observed crushing a slow release medication which ought not to have been crushed;
(i) that residents were not being provided with chocolate puddings when they ought to have been;
(j) that the processes of the kitchen to ensure that no out of date food was used were not being adhered to;
(k) that the processes of the kitchen to record dishwasher temperature and food temperature were not being consistently followed;
(l) that there were deficiencies in education and staff development evidenced by the inability of one staff member to accurately measure and record residents’ weights;
(m) that these matters demonstrate non-compliance with expected outcome 2.4 which requires that residents receive appropriate clinical care.
The written submissions on behalf of the Secretary invite the conclusion that there was non-compliance with Item 1.8, Information Systems, which requires that effective information management systems be in place and Item 2.10, which requires that residents receive adequate nourishment and hydration. This non-compliance, it was submitted, “was of a most serious nature that threatened the health, welfare and interests of the residents at Mareeba Garden Settlement”. But the Secretary did not confine the case to one of establishing only a failure to meet an expected outcome. The case was put on the basis that, once it had been demonstrated (or accepted by Blue Care) that there had been a failure to comply with any of the Accreditation Standards, there was necessarily a failure to comply with a responsibility under Part 4.1 of the Act and thus paragraph (a) of s 65-1 was made out. In such a case, it was submitted, matters of deficiency, falling short of a failure to satisfy an expected outcome, fall to be considered in determining “whether it is appropriate to impose standards” by reference to the non-exhaustive list in s 65-2 of the Act.
I am prepared to accept the Secretary’s submission as to the approach to be taken but, as will appear, I do not agree with the characterisation of the extent and seriousness of the failings on the part of Mareeba Garden. There were, undoubtedly, shortcomings, particularly in relation to some of Mareeba Gardens’ information systems, but those shortcomings were nowhere near as serious as the Secretary (and the Agency witnesses) suggest and did not threaten the health, welfare and interests of residents.
Whilst, ultimately, the entire picture must be considered it is convenient to consider the matters in issue by reference to particular topics. They fall into four broad categories that I will describe, for the sake of simplicity, as “weight loss”, “dietician”, “kitchen” and “other”.
Awareness of weight loss
Some of the criticisms made in the support contact record from the 16 December 2008 visit and taken up in the serious risk report relate to the capacity (or otherwise) of the senior clinical staff at Mareeba Garden to explain matters that were of concern to Ms Duncan and Ms Hopkinson and the awareness of senior clinical staff of apparent weight loss. Thus, in the case of resident one, it is said,
“An interview with the Clinical Nurse identified they [sic] were not aware of the weight loss …”
In addition, much of the evidence of the witnesses was devoted to what was, and what was not, said in the course of the support contact visit on 16 December 2008.
To a very great extent I am able to decide many of the issues that arise in these proceedings without reference to conversations, contested or not. Whether residents were at risk of weight loss, whether there was weight loss in fact and whether weight loss was planned or otherwise are not questions that are capable of being determined by reference to the answers given by Ms Poole, Ms Kenyon or other nursing staff. The questions are best determined by reference to the contemporaneous documents that chart the resident’s progress.
It would be quite unreasonable to expect anyone in the positions of Ms Poole or Ms Kenyon to have the capacity to recall immediately, and without recourse to the progress notes and other documents, many of the details that were asked of them in the course of the support contact visit on 16 December 2008. Perhaps Ms Poole, or Ms Kenyon, ought to have spent more time dealing with the matters raised by the assessors. Ms Poole, in particular, had to deal with two additional distractions, one particularly difficult and disruptive resident[18] and one resident who was in the final stages of life. Moreover, it was a particularly hot day, even by the standards of north Queensland in mid-summer. Ms Poole was, as she put it, “in a total funk”.
[18] See Exhibit 53.
As the Secretary’s submissions note[19], many of the witnesses for Blue Care profess opinions about the extent of any non-compliance at Mareeba Garden, whether problems were systemic, whether there was a serious risk and the like. Without intending any disrespect to those witnesses I place no reliance upon those opinions; I have preferred to reach my own conclusions on such matters based upon the factual conclusions that I reach.
[19] Exhibit 59, paragraph [74].
Considerable energy was devoted in the parties’ submissions to criticisms of the witnesses on the other side. Thus, Blue Care’s submissions suggest that witnesses called on behalf of the Secretary were unimpressive, unreliable and similar epithets. Similarly, the Secretary’s submissions mounted a sustained attack on the reliability of the evidence of, in particular, Ms Poole. I have found it unnecessary to make any judgements along these lines however I should say that I do accept Ms Poole’s evidence about the matters that distracted her on 16 December 2008. But that conclusion does not reflect adversely upon my views about the evidence of Ms Duncan or Ms Hopkinson, neither of whom was especially conscious of stress or anxiety on the part of Ms Poole. The reality is, no doubt, that the witnesses were, at the time, focussed upon different issues.
It seems clear enough that in the course of the afternoon of 16 December 2008 Ms Duncan and Ms Hopkinson formed an unfavourable view about the nutritional care provided to residents at Mareeba Garden. Ms Poole and Ms Kenyon did not share that view. Ms Duncan and Ms Hopkinson did not have the luxury of the time of these proceedings to reach conclusions. They were unable to obtain explanations that are now apparent from the close scrutiny of the records that has now been undertaken. It is perhaps an understandable response by Ms Duncan and Ms Hopkinson to draw adverse conclusions where matters that appeared, prima facie, to be concerning were not able to be explained adequately. It is also understandable that Ms Poole and Ms Kenyon did not regard the conclusions that were reached as being open. It is an unfortunate reality of these proceedings that there was, in my view, insufficient discussion on the afternoon of 16 December 2008 about the conclusions that Ms Duncan and Ms Hopkinson reached in the course of the support contact visit.
Where it is otherwise necessary to comment on the accuracy or reliability of the evidence of witnesses I shall do so in the context of my consideration of the facts which the Secretary submits ought to be found. It will suffice to say that I found the witnesses to be generally reliable.
Weight loss
I should start with a brief description of the records maintained for each resident’s care. Each resident had a weight observation chart that recorded progressive weights over time and, on occasions, body mass index (BMI). Residents were weighed weekly, monthly or quarterly in accordance with the requirements of the care plan for the particular resident. With each resident’s documents were also progress notes (recorded by nursing staff or other allied health professionals) and medical progress notes (recorded by the resident’s general practitioner).
Each resident had a medication chart that noted the medication prescribed, any particular instructions regarding that medicine e.g. that it was not to be crushed and noted the fact of its administration. A dietary plan/profile was prepared for each resident. A copy of it was kept in the kitchen. It recorded the type of diet, any required modifications to the texture of food, any special requirements for taking food, supplements taken by the resident, food likes and dislikes and any other relevant comments. The dietary plan was reviewed and updated by the clinical nurse or an RN at regular intervals. The resident’s nutrition and hydration needs and objectives were also recorded on a Care Plan – Eating and Drinking. It was also the subject of regular reviews. There was, as well, an overall “supplements list” that ought to have recorded all the residents to whom a dietary supplement was to be given. As will emerge, it was not as accurate as it ought to have been.
Weighing of residents was undertaken on Sundays. It was done by the AIN’s and could be done, depending on the capabilities of the resident, standing up, in a chair or on a sling. In late 2008 the processes of Mareeba Garden required that the clinical nurse review weight charts on the Monday following weighings undertaken the preceding day.
Ms Duncan and Ms Hopkinson had planned their support contact visit to examine the processes involved in Module 11 and expected outcome Item 4.7 concerning infection control. In the course of Ms Hopkinson’s work on those aspects she became concerned about matters involving residents’ nutrition. This led to the scope of the support contact being widened to include expected outcome Item 2.10, Nutrition and hydration. Ms Duncan and Ms Hopkinson reviewed resident’s weight charts.
Their conclusions are recorded in the support contact record of the 16 December 2008 visit (the 16 December 2008 report) in the following terms:
“A review of all residents’ weight charts identified seven residents with unplanned weight loss. A review of the residents files and documents identified that:
–For one resident a review of the weight chart identified that they had lost 8.8kg in two months (from 70.5 kg in September 2008 to 61.3 kg in November 2008). An interview with the Clinical Nurse identified they were not aware of the weight loss and the care plan review conducted on 12 December 2008 did not identify the unplanned weight lost.
–For resident two the nutritional assessment conducted on 23 September 2008 identified the resident to be a poor eater with weight loss greater than 5kg. A review of the weight observation sheet identified continued weight loss from (50.2 kg in August 2008 to 41.3kg in November 2008). The new care plan (16 October 2008) did not outline strategies for managing the weight loss despite the Assistant Service Manager reporting intake was very little due to clamping of jaws. Furthermore a review of the progress notes identified on 4 November 2008 the family raised a concern about the resident’s dietary intake and it was not until 17 November 2008 in which a dietary supplement was recommended to be given three times a day. A review of supplement lists and interviews with the Clinical Nurse and registered nurse identified that this resident is not receiving any nutritional supplement.
–A review of a third resident’s observation chart and file identified a 1.5 kg weight loss (BMI 16.56) in two months (from September 2008 to November 2008). The resident was to be on a nutritional supplement since April 2007 and whilst the resident was listed as requiring a supplement three times a day, interviews with the Clinical Nurse and registered nurse reported that the resident was not being provided with the supplement.
–A review of a fourth assessment conducted 29 August 2008 identified the resident weight to be stable. However a review of the resident’s observation charts identified a 4.3kg weight loss (BMI less than 20) in a three month period (from 51.2 kg in 17 August 2008 to 46.9 kg in 16 November 2008). The residents’ eating and drinking care plan was reviewed on the 30 November 2008, however no changes were made in response to the unplanned weight loss. An interview with the Clinical Nurse and registered nurse identified they were unaware of this resident losing weight and confirmed that no interventions or supplements had been initiated.
–A review of a fifth resident’s observation chart with ongoing weight loss identified a 2.1 kg weight loss (from September 2008 to November 2008). In September 2008 a review of the supplements register identified that the resident was to be commenced on three times a day nutritional supplements. However a review of supplement signing sheets and an interview with the clinical nurse and registered nurse identified that supplements were not being provided to this resident.
–A review of sixth resident’s observation chart identified a weight loss of 3.7 kg in 3 months (from 65.4kg in August 2008 to 61.7 kg in November 2008). An interview with the Clinical Nurse was not aware the weight loss and no action had been taken in relation to review or refer this resident.
–A review of a seventh resident’s file and observation chart identified that a 2.7kg weight loss in one month (from 57kg on 11 November 2008 to 54.3kg on 7 December 2008). The care plan was reviewed in October 2008, however no further reviews have occurred in response to the weight loss.”
These findings are at the heart of the decisions that were thereafter made on behalf of the Secretary. Without more they are of concern however closer examination shows that the true picture was somewhat different. Immediately following the decision to impose sanctions, experienced Blue Care staff were sent to make good any deficiencies in the quality of care. They included Ms Susan MacGregor, the Blue Care Community Care Manager for Far North Queensland, Ms Helen Watkins, employed by Blue Care as a Residential Advisor, Ms Jacinta Geraghty, Senior Advisor-Residential Care for Blue Care and Ms Maureen Kennedy, a Senior Residential Aged Care Advisor for Blue Care. Each of these persons was an RN with considerable experience in aged care nursing although in light of the way in which the Secretary’s case is put much of the evidence given by them has no bearing on the critical issues.
Importantly though, on 19 December 2008, Ms Kennedy and Ms Geraghty undertook a review of the care documents for all of the residents at Mareeba Garden. They produced a matrix which identified all residents who had experienced weight loss (or apparent weight loss) and examined the care documents to determine whether any of those residents had experienced unplanned or unexplained weight loss or were at risk of weight loss. They identified fifteen residents. Of that group, two residents, residents eight and nine, were identified as being at risk of weight loss. Their position is considered below[20].
[20] See paragraphs [114] – [115].
Each of the seven residents who were the subject of the Agency’s report was identified, and the resident’s circumstances considered. In each case it was concluded that the resident had not sustained unplanned weight loss. Given the importance of the position of these seven residents I propose to examine the evidence in relation to each of them in some detail.
Resident one
As the 16 December 2008 report noted, the weight observation chart of resident one showed a weight loss from 70.5 kg on 14 September 2008 to 61.3 kg on 16 November 2008. Without more, such a loss is quite significant. However there was more. When re-weighed on 18 December 2008 resident one weighed 74 kg. Ms Kennedy and Ms Geraghty concluded that the weight recorded on 16 November 2008 was incorrect. If that was the case, and it seems reasonable to infer that it was, resident one did not, in fact, have a weight loss and was not at risk of weight loss.
But the position of this resident does demonstrate a failing on the part of Blue Care. An apparent and significant weight loss was noted and there is no evidence that it was considered by the clinical nurse or the RN. It is not to the point, as the case for Blue Care tended to suggest, that a member of the nursing staff may have considered resident one’s overall health and concluded that the resident was not losing weight or was not at risk. In an exception reporting system[21] apparent significant weight loss was an exception. It needed to be investigated to determine whether any additional care needed to be provided. If, as transpired in the present case, it was an incorrect reading that fact ought to have been noted and acted upon.
[21] Also described as a variance reporting system in some of the evidence.
It needed to have been noted as an incorrect reading in the records of resident one because weights, and changes in weight, are matters on which clinical judgements by medical practitioner and nursing staff may be based, at least in part. And it needed to be acted upon against the possibility (which transpired to be the case here) that the error was caused by the inability of a staff member to weigh residents accurately. A deficiency in skill of such a nature needs to be remedied promptly.
Resident two
The position with resident two was more complex. The resident’s weight was noted as 50.2 kg on 17 August 2008. By 16 November 2008 weight had dropped to 41.3 kg. But the fact of a weight loss of 8.9 kg in 3 months was reported to the clinical nurse on the day of the weighing. The weight observation chart notes that the clinical nurse was notified of the loss of weight. The progress notes for 17 November 2008 contain a similar notation. The progress notes also show that on 17 November 2008 Ms Kenyon put resident two on a dietary supplement three times a day and that on 21 November 2008 Ms Poole revised the care plan for the resident.
An examination of the progress notes and the medical progress notes demonstrates that the matters raised by the assessors in relation to resident two are without substance once the matter is looked at more closely.
The 16 December 2008 report notes that the care plan prepared in mid-October 2008 “did not outline strategies for managing the weight loss despite the Assistant Service Manager reporting intake was very little due to clamping of jaws”. There was, in fact, no reported weight loss at the time of preparation of the October 2008 care plan. To that point, the resident’s weight over the preceding 6 months had been in a range from 50.2 kg to 50.5 kg. Moreover, resident two was terminally ill and was receiving palliative care. On 23 October 2008, a week after the care plan had been prepared, the resident was referred to the general practitioner who noted, in response to the report of the resident not eating or drinking,
“Off[er] oral intake but don’t push”.
The resident, and the resident’s nutrition and hydration needs, were closely monitored by the general practitioner, Dr Cheryl Harnischfeger, and nursing staff, and that monitoring was recorded in detail in the medical and nursing notes.
The 16 December 2008 report next comments that the progress notes record, as they do, that on 4 November 2008 family members raised a concern about the resident’s dietary intake but that,
“it was not until 17 November 2008 in which [sic] a dietary supplement was recommended to be given.”
This seems to suggest that the assessors considered that the resident’s family ought to be making judgements on the resident’s nutrition, a suggestion I reject. The progress notes and the medical progress notes record that close attention was being paid to nutrition and hydration by both the general practitioner and by the nursing staff. Moreover, they show that the resident’s family was kept informed of the position. On 23 October 2008, after resident two had been seen by Dr Harnischfeger, Ms Poole discussed the resident’s condition with a family member who proposed to speak directly with the doctor. Ms Poole spoke to Dr Harnischfeger about the family’s concerns on 12 November 2008 and two days later spoke to two family members about the resident’s weight loss. All of these matters are documented in resident two’s progress notes.
But there is a further curiosity about the Agency’s criticisms in relation to Mareeba Garden’s care of this resident. The 16 December 2008 report appears to suggest that Mareeba Garden staff were at fault in not providing the nutritional supplement earlier than 17 November 2008. The Review Audit assessors appeared to have taken a quite contrary view. The “major findings” of that audit team note that providing dietary supplement to resident two “was contrary to the general practitioner orders and the organisational guidelines for palliative care”. As it happens I do not regard that criticism as being warranted but the contrast between the two views underscores the subjective nature of the approach by the assessors when not all information is considered, or able to be considered, by them.
I do not regard giving resident two a dietary supplement as “contrary” to Dr Harnischfeger’s orders. The clinical notes record that when seen by Dr Harnischfeger on 12 November 2008 resident two had improved drinking and eating. Ms Poole explained that resident two, unusually, appeared to like the taste of the supplement thus it was provided for the purpose of giving a palliative patient better quality of care, not to increase weight.
It was for this reason that there was not an entry on the signing sheet for resident two but the evidence of Ms Poole, which I accept, was that resident two was receiving the supplement when it was wanted by the resident.
Professor Alan Pearson, whose opinions were relied upon by the Secretary, accepted that his concerns about unexplained weight loss by this resident were assuaged once his attention had been drawn to the fact that the weight loss had, in fact, been referred to the clinical nurse in a timely way and supplements added.
But, even absent Professor Pearson’s views, I am satisfied that resident two did not experience unplanned weight loss and was never at risk of unplanned weight loss.
Resident three
This resident lost 1.5 kg from 14 September 2008 to 16 November 2008. That appears not to be a weight loss of any great significance although the resident was obviously quite small with a weight of 43.5 kg in November 2008 and a low BMI. The comment by the assessors in the 16 December 2008 report, based on interviews with the nursing staff, was that “resident [three] was not being provided with the supplement [that had been prescribed].”
The third resident was seen frequently by the general practitioner during this period and 2 malnutrition screening tests were undertaken on the resident on 13 June 2007 and 29 September 2008. A new care plan – eating and drinking was developed for resident three on 26 November 2008. It demonstrated an awareness of the resident’s risk of weight loss and the difficulties experienced in feeding resident three. Those difficulties included the resident spitting out food that contained the prescribed dietary supplement. Because of that a decision was made by Ms Poole on 10 November 2008 (and recorded in the progress notes of that day) to cease providing the supplement in order to encourage the resident to eat.
Dr Martin Panter, the general practitioner responsible for the care of resident three, observed,
“short of [resident three] being in hospital on an intravenous drip, there is no way you can ensure that … weight remains stable.”
In the course of cross-examination Ms Hopkinson, one of the authors of the 16 December 2008 report, was critical of the fact that resident three was no longer being provided with the supplement however she appeared to accept that a decision to cease providing dietary supplements was properly a matter for the clinical judgement of the nursing staff at Mareeba Garden. There remained a criticism, however, that the nursing staff had been unable to explain the decision to the assessors on 16 December 2008.
Resident four
Resident four was another example where the weight loss noted (4.3 kg from 17 August 2008 (51.2 kg) to 16 November 2008 (46.9 kg)) was not, in fact, a weight loss but arose from an incorrect weighing on 16 November 2008. There was, in reality, a modest decline in weight of 1.2 kg between August 2008 and December 2008. But it may well be the case that the apparent weight loss was responded to because the care plan for resident four is noted as having been reviewed on the same day as the apparent weight loss was recorded. But again, if that is the case, there is no notation, as there ought to have been, that the apparent weight loss had been considered and followed up or regarded as being inaccurate
That failure makes it difficult to deal with the other criticism in the assessor’s report that “no changes were made in response to the unplanned weight loss”. Resident four was being reviewed frequently by the general practitioner during November 2008. In addition, Ms Poole did not regard the resident as demonstrating any of the obvious signs of weight loss during this period. It may be that the review on 16 November 2008[22] was a response, and an apparently adequate response, to the apparent weight loss. The difficulty is that it is impossible to tell whether the weight loss was responded to or not.
Resident five
[22] The assessor’s report refers to a care plan review of 30 November 2008. It seems that that is an error; there was a review scheduled for that date but it was undertaken on 10 November 2008: Exhibit 6, page 91A. It was a different review undertaken on 16 November 2008.
Resident five recorded a weight loss of 2.1 kg between September 2008 and November 2008. The assessors’ report suggests that the resident was not receiving dietary supplements that were intended to commence in September 2008.
Resident five suffered from severe dementia and was difficult to feed. Dr Harnischfeger, who was the general practitioner for this resident, was of the view that weight loss was not unusual for dementia patients as the condition worsened. The weight chart for this resident is now missing. It is known that a weight of 44.9 kg was recorded on 19 December 2008 in the review undertaken by Ms Kennedy and Ms Geraghty. It is, however, apparent from the clinical notes that the weight loss of resident five was being closely monitored by the general practitioner and nursing staff. A weight loss of 4 kg over the previous 6 months was noted and recorded by
an RN in the progress notes for 23 November 2008. There had been a comprehensive review of the resident’s care plans, including the dietary care plan, by an RN on 12 November 2008. On 10 December 2008, Ms Poole decided to put resident five on a high protein / high energy diet. She re-wrote the dietary plan and forwarded a copy to the kitchen.
It is apparent from the resident’s medication chart[23] that the resident was receiving the dietary supplement throughout the period in issue. It is not clear how Ms Hopkinson concluded, from a review of the supplement signing sheets, that resident five was not receiving the supplement as prescribed.
[23] Exhibit 6, pages 100-105.
In these circumstances I conclude that resident five was adequately cared for and did not have an unplanned or unexpected weight loss. That conclusion accords with the view of Professor Pearson once he was taken to the nursing progress notes for 23 November 2008 and 10 December 2008[24].
Resident six
[24] Transcript p 804, lines 20-47. The reference in line 21 to “shift resident” should obviously be a reference to “fifth resident”.
Resident six went from 65.4 kg in August 2008 to 61.7 kg in November 2008, a loss of 3.7 kg. The resident had been in palliative care since suffering a stroke in 2007, was bed bound and unable to communicate. Dr Harnischfeger shared responsibility for this resident with another general practitioner, Dr Frankish. Dr Harnischfeger was quite happy for resident six to lose weight. She reviewed the resident on 1 October 2008 and noted “good weight loss” in the medical progress notes for that day. It is not correct to say that no action had been taken in relation to this resident’s weight loss.
Again, Professor Pearson appears to have regarded the response by Mareeba Garden to be appropriate given this resident’s palliative state[25].
Resident seven
[25] Transcript p. 805 lines 3-26.
This is a further example of what is likely to be an incorrect weighing. This resident appeared to lose 2.7 kg between 11 November 2008 (57.08 kg) and 7 December 2008 (54.3 kg). The weight was recorded as 57.7 kg on 19 December 2008.
The resident was never at risk of weight loss during the period of apparent weight loss. The resident’s general practitioner, Dr Lyndel Cahill undertook a comprehensive review of the resident on 19 November 2008 at which Dr Cahill noted that the resident’s nutritional status was “adequate Wt gain”. In the 6 months leading to 15 October 2008 the resident had gained 3 kg in weight.
It seems plain that resident seven was not at risk of weight loss.
The medical practitioners’ evidence
I had the benefit of evidence from three local general practitioners, Dr Panter, Dr Harnischfeger and Dr Cahill, and the observations made by them about the care provided to those of their patients among the seven identified on 16 December 2008 as having unplanned weight loss and their observations about the quality of care generally at Mareeba Garden. Where necessary, their comments about the particular residents have already been set out.
It is not, by any means, determinative, but it is relevant in considering the overall picture in December 2008 to note that none of the doctors expressed any concern about the treatment or care of their patients at Mareeba Garden. Dr Panter and Dr Harnischfeger spoke highly of the staff and the care they provided[26]. The three doctors were, between them, responsible for the care of five of the seven residents – residents one, three, five, six and seven. None of them regarded any of those patients as being at risk of weight loss or poor nutrition. Dr Panter, in particular, was quite concerned that a decision had been made that one of his patients was regarded as being at severe risk without any consultation with him as the resident’s general practitioner. As I will later observe, it is most unfortunate that a decision was made that residents at Mareeba Garden were at serious risk of negative health outcomes without any attempt to make contact with the general practitioners responsible for the care of those patients.
[26] See e.g. Dr Panter at transcript p. 285 lines 12-34.
Blue Care staff
Evidence touching upon the position in December 2008 was given by two categories of Blue Care staff – those employed at Mareeba Garden and those brought in by Blue Care following the imposition of sanctions.
In the former category are Ms Poole, Ms Walton, Ms Carol Ward, Ms Jenny Cumming and Ms Ilma Watts. Ms Ward, Ms Cumming and Ms Watts were each experienced RN’s who had been employed at Mareeba Garden for some time. As at December 2008 Ms Ward had been employed at Mareeba Garden for three years, Ms Cumming for 20 years. Similarly, Ms Poole had worked at Mareeba Garden since 1982 (with a break between 2005 and February 2008) and Ms Walton since December 2007. In December 2008 they were all familiar with the patients and their needs.
Of the group, Ms Walton was, I infer, less engaged with patients on a day to day basis. She was the Service Manager at Mareeba Garden and had a role that was mainly concerned with management of the service and its staff. Ms Walton gives evidence, some of which is contested, about conversations involving her and various Agency assessors.
The statement by Ms Poole[27] details the daily routines for assessing nutrition and hydration needs. On a daily basis all residents were seen and assessed by an RN at least three times each day during medication rounds and more frequently if required. Additionally, observations were made, by all care and nursing staff during the course of their dealings with residents. Where necessary, AIN’s and EEN’s reported any concerns to an RN or the clinical nurse. At the end of each shift there was a handover between nursing staff where the new RN was informed of any matters that needed to be followed up.
[27] Exhibit 11.
One of Ms Poole’s duties as clinical nurse was to review resident’s weight charts on the Monday following the regular weighing of residents (as required) on the Sunday. It is accepted that by mid-December 2008 Ms Poole had fallen behind in the task of reviewing. Ms Poole attributed that to the increased workload placed on her by structural changes made in Mareeba Garden in March 2008 which had resulted in residents from the high care wing being integrated into the rest of the centre. The fact that four of seven residents had apparent weight loss reported on 16 November 2008 suggests that at least from then Ms Poole started to fall behind in her consideration of apparent weight loss. It is not possible to say whether the default extended back earlier than November 2008.
One area where there is a contest of recollections concerns a conversation said to have occurred between Ms Hopkinson and Ms Poole on 16 December 2008 regarding the processes by which information on residents’ weight loss was reported to Ms Poole on Mondays following the weighing of residents on a Sunday. Ms Hopkinson recounted a conversation in which Ms Poole said that that process had ceased and that staff no longer notified her of any recorded weight loss. Ms Hopkinson made a relatively contemporaneous note of this conversation and the detail of the conversation is recorded in the 16 December 2008 report. Ms Poole was unable to recall whether, in fact, she said that. But she denied that she would have said anything along those lines because it was not the case that the process had ceased. Thus, she reasoned, she would not have said that it had. It is not necessary to make any finding about the substance of the conversation and whether Ms Hopkinson’s recollection and record are accurate. It is enough for me to say that I am satisfied that, in fact, the process had not ceased. I am satisfied that the information was passed to Ms Poole. Ms Poole had fallen behind in considering the reports of weight loss but, as the analysis of the position of the seven residents demonstrates, there were instances where it is inescapable that apparent weight loss had been considered and had been considered promptly.
Ms Poole was also behind in reviewing the supplement list. She did not review it, as she ought to have, in October and November 2008 to ensure that it was an accurate record of the residents to receive supplements.
The evidence of Ms Poole enables me to make the finding sought by the Secretary that residents’ weights were recorded on charts but not consistently analysed where variations of significance were recorded. That varies slightly from the formulation put forward by the Secretary for two reasons. First, it is only variations, and variations of significance that warrant analysis in an exception reporting system. Additionally, and despite the apparent breakdown in the systems, it is not the case that there was no analysis of significant weight variation. At least in the case of resident two, the fact of the apparent weight loss was reported immediately to Ms Poole and responded to promptly. Similarly, in the case of resident four, there was what may have been a response to apparent weight loss.
But ultimately the critical conclusion is that there was not, at least from November 2008, a systematic and documented response to weight variation.
The analysis to date also allows the second finding sought by the Secretary to be made, that is, that residents had been recorded as experiencing unplanned weight loss. The extent of that was not as great as the 16 December 2008 report suggests but there was apparent weight loss in a number of instances. Certainly, the instances where the apparent loss was the consequence of error in weighing were instances where there was apparent unexplained weight loss.
The next finding sought in the “weight loss” category is that the supplements register was out of date with the result that residents were not receiving the dietary supplements that they ought to have been receiving. There is no doubt, and Blue Care accepts, that the supplements register was not being updated as it ought to have been but it is an entirely separate question whether that had the consequence for which the Secretary contends.
The 16 December 2008 report identified three residents – residents two, three and five – said not to be receiving the dietary supplements prescribed. In the case of resident two the supplement was not prescribed, it was provided to enhance the quality of life of a palliative patient who, unusually, liked its taste. A clinical judgement was made by Ms Poole to cease providing supplements to resident three to encourage the resident to eat. There is then no question of the resident having supplements prescribed. And in the case of resident five, the signing sheets within Exhibit 6 demonstrate that the resident was receiving the supplement.
At an earlier time, it had been part of the case for the Secretary that a conclusion that supplements were not being provided might be reached on the basis of some observations made, and conversations had, about the total amount of dietary supplements used in the course of the day. In the course of closing submissions, the Secretary, properly in my view, abandoned reliance upon the argument[28].
[28] Transcript page 857, lines 38-45.
I have already referred to the factual controversy surrounding the next matter that the Secretary says ought to be found which is that the process by which Ms Poole was informed of apparent weight loss had ceased sometime prior to 16 December 2008 and that “accordingly” no monitoring of weight loss was being undertaken. I am satisfied that the process had not in fact ceased. There are undoubtedly instances of unexplained weight loss where there has been no apparent consideration of that loss.
To that extent, at least, there was a failure to monitor weight loss but I do not consider that there was no monitoring of weight loss being undertaken. The analysis of the position of the seven residents demonstrates that, in some instances, the apparent weight loss was acted upon, and acted upon appropriately. Thus, in the case of resident two, resident three and resident five there was a review noted in the progress notes at, or shortly after, the weighing on 16 November 2008. Three residents, resident one, resident four and resident seven, did not, in fact, suffer weight loss; their weight loss was the consequence of incorrect weighing.
It is only in the case of resident six that there is no recorded response to an actual weight loss.
But the task of monitoring residents’ nutrition involves more than merely weighing, recording and considering any apparent weight loss. Weight and change in weight is, I accept, a critically important element in the task of monitoring nutrition. Nutrition is monitored, as well, in the daily processes of providing clinical care, by the observations of trained staff and the regular attention of medical practitioners. I do not down play the importance of accurate and properly analysed weights but it is wrong to say, as does the Secretary, that there was no monitoring of weight loss. There were instances where it is not apparent (as it ought to be) that apparent weight loss has been considered.
There is evidence from which I conclude that there was at least a degree of monitoring of residents’ weights. That is evident in the progress notes to which reference has already been made. There is, as well, evidence of monitoring of the weights of other residents not yet referred to in these reasons.
Resident eight showed a loss of weight of 3.1 kg (68.8 kg to 65.7 kg) between 27 September 2008 and 16 November 2008. The progress notes demonstrate that resident eight was very ill. There are frequent entries between mid November and early December 2008 that demonstrate concern for the resident’s general health but that the resident was “declining slowly”[29]. Resident eight was referred to a dietician, Ms Camey Demmitt, and seen by her on 4 December 2008. Ms Demmitt’s attendance at Mareeba Garden on that occasion was arranged by Ms Kenyon some time before the day of the visit following discussions between Ms Poole and Ms Kenyon.
[29] Exhibit 6, page 168.
The position is much the same with residents ten and eleven who were referred to Ms Demmitt and seen by her on 4 December 2008 for low body weight and unintentional weight loss respectively.
Reference has already been made to the review of residents’ weights undertaken by Ms Kennedy and Ms Geraghty on 19 December 2008 and the fifteen residents who had experienced weight loss, either actual or apparent. The seven residents identified in the 16 December report were included in that group. There were others whose condition was considered having regard to the gravity of the conclusion that had, by that stage, been reached by the Secretary. The work undertaken by Ms Kennedy and Ms Geraghty is described by Ms Geraghty in these terms:
“Ms Kennedy and I looked at the charts for every resident in the facility. We looked at their weight chart to identify who had lost weight, for a start. Those residents in the table are those that had had some variation in weight.
We then considered what the weight loss was, whether they had been reviewed recently by a GP, was there follow up, etc. We both looked at what had been happening for those residents recently, whether they had any pressure areas or infections, added our comments, and then we assessed whether they were or were not at risk. We then did a clinical assessment on all of the people in the table to find out whether the weight loss meant that there was any risk to those residents.
Where we noted in the weight table that there had been an incorrect weight in November, we based this conclusion on comparing the previous weight for the resident, the resident’s current weight, and considering whether there was anything (for example an illness or infection) that could explain the weight loss over that period. I also came to the view that the weights were incorrect based on my observation and review of residents.
There are two residents in the table who are noted to be at risk [resident nine] and [resident eight]. Neither of these residents were identified in the Serious Risk Report.
[Resident eight] had lost significant weight. … had dementia, and … had been commenced on Risperidol, and … was quite drowsy as a result of that. … was on Sustagen. … had been reviewed by [the] GP on a regular basis, but … had also been quite sick as well. … was a [resident] we highlighted we needed to keep an eye on. [The] GP had reviewed … and was not concerned, but we just put … down as someone we needed to watch especially closely. … weight was about 60kg.
[Resident nine] was palliative. … had been acutely unwell. The 2Cal supplement had been ceased in October because … hated the taste, and used to spit it out. … had been seen by the dietician on 4 December 2008. … was an unwell [resident]. We highlighted … as a [resident] we needed to watch closely too, because … weight was very low, at about 40kg.
While these two residents were identified as being at risk, their weight loss was explained by other factors, rather than being as a result of any lack of care by Mareeba Garden Settlement.
After the review conducted by Ms Kennedy and I, I did not consider the other residents to be at risk. Some residents had lost weight, but these weight losses were explicable, or expected due to palliative care, or known to GP’s and under medical management and clinical monitoring.
I also kept reviewing the residents over my time there at Mareeba Garden Settlement. I was up at Mareeba Garden Settlement for about 5 days, and reviewed the residents throughout that time. My role was clinical management, and I was highly present on the floor during the time I was there, making sure everything was alright. I did not see any evidence ever of anybody not receiving adequate food or fluids, and I had no concerns about the quality of any of the staff or the care being provided.”
The conclusions of Ms Kennedy and Ms Geraghty are, of course, conclusions reached after 16 December 2008 but they are helpful in considering the Secretary’s contention that no monitoring of weight loss was being undertaken at Mareeba Garden. Their conclusions demonstrate that there were only two residents who were at risk, resident eight and resident nine. Both of these residents (and others) had been referred to a dietician in early December 2008.
The result of this is that I would not conclude that there had been no monitoring of weight loss. Plainly enough there was considerable monitoring of weight loss. The failings of Mareeba Garden relate more to the recording of the steps taken to monitor weight loss.
Dietician
The Secretary submits that I ought find three matters under this head,
(a) that residents were not being referred to a dietician when they ought to have been;
(b) that the recommendations of the dietician were not being implemented promptly; and
(c) that no dietician was available generally to Mareeba Garden residents between June and December 2008.
It is convenient to consider the matters collectively.
Mareeba Garden did not ever employ a dietician on its staff. According to Ms Walton it is generally difficult to find allied health professionals willing to work in regional centres like Mareeba. In the first half of 2008 an arrangement was in place for the dietician employed in the Mareeba Hospital, adjacent to Mareeba Garden, to visit Mareeba Garden on an ad hoc basis. That arrangement continued into the second half of the year however it was found increasingly difficult to arrange for that dietician to attend in a timely way. The consequence was that Ms Walton contacted the clinic in Cairns where Ms Demmitt worked and made arrangements for Ms Demmitt to be retained by Mareeba Garden.
Ms Walton spoke to Ms Demmitt on an initial occasion around the middle of 2008 and arranged for her to review the Mareeba Garden menu and to see residents as required. Ms Demmitt undertook, or arranged for, the menu review. She first visited Mareeba Garden in early August 2008. On that occasion she consulted with one resident. She undertook further work on the menu and visited Mareeba Garden on 4 December 2008. On that occasion she saw five residents. In the course of that visit Ms Kenyon and Ms Demmitt arranged for Ms Demmitt to attend Mareeba Garden on a monthly basis for five hours per visit.
On this basis, I am satisfied that, at least by December 2008, arrangements were in place for the regular monthly attendance of a dietician at Mareeba Garden. Were it to matter, I am satisfied that a dietician had been available generally, and was accessed as required, from June 2008 to November 2008.
The genesis of the suggested finding that the recommendations of the dietician were not being implemented properly is the 16 December 2008 report which notes,
“The Clinical Nurse reported that two of the four residents reviewed by the dietician on 5 December 2008 [sic] identified that they were to be commenced on fortified meals, however the Clinical Nurse reported that these recommendations have not yet been implemented.”
Residents eight, nine, ten and eleven were seen and reviewed by Ms Demmitt on 4 December 2008. For each resident Ms Demmitt recorded a “plan” in the progress notes. In each case the plan showed as the first step:
“Commence [high protein, high energy] diet & fortify food/fluids wherever possible …”[30]
[30] Or a very similar form of words.
The information about the follow up of the dietician came from a discussion between Ms Kenyon and Ms Duncan. Ms Duncan’s evidence was as follows:
“Ms Kenyon told me that the dietician recommended supplements for two of the four residents she saw on 5 December 2008 [sic]. Ms Kenyon also told me that the new diet sheets which were required for one resident, and signing sheets which were required for another resident, had not been completed (MD-2 p19). This meant that 11 days after the recommendations were made by the dietician there was no evidence or documentation to show that the recommendations had been implemented. Ms Kenyon did not demonstrate, in any other way, that the recommendations had been implemented.”
It is difficult to know what to make of this. It may be accepted that Ms Kenyon was unable to demonstrate to Ms Duncan that the dietician’s recommendation had been implemented. The evidence does not clearly indicate which residents were said to be recommended for dietary supplements. Exhibit 37, a schedule produced by the Secretary, suggests that residents ten and eleven were those for whom supplements had been recommended. I am unable to discern that from the notes made by Ms Demmitt. The dietary plans for resident eight and nine were updated on 4 December 2008 and those for residents ten and eleven were updated on 16 December 2008. Ms Poole explained that her heavy workload had prevented her from updating the latter two plans as promptly as she would have liked however she had photocopied the dietician’s notes in those instances and provided them to the kitchen.
No doubt that might be regarded as an irregular method of communicating dietary information to the kitchen however I am satisfied that the dietician’s recommendations were acted upon promptly.
Kitchen
Under this heading I propose to discuss the issues of the provision of chocolate puddings to residents, out of date food and kitchen temperatures.
On 16 December 2008, Ms Hopkinson was informed by Ms Kenyon “that snacks or custards are provided between meals as a strategy to boost resident’s intakes”[31]. Around 5:00 pm that day Ms Hopkinson observed that five desserts were “still in the fridge”. Those observations were recorded in this way in the 16 December 2008 report:
“The Assistant Services Manager reported that one of the methods used to assist in providing adequate nutrition to resident[sic] involved providing snacks/custards between meals. However the team observed that in the dementia specific unit that five chocolate puddings intended for afternoon tea had not been provided to residents at 5:00 pm when dinning service was about to commence.”
That observation became, in the Secretary’s case[32], an allegation that residents had been “denied chocolate pudding for afternoon tea”.
[31] Transcript page 666, lines 18-19.
[32] Exhibit 37, page 19.
Ms Hopkinson explained the conclusion she had drawn on the basis that she “didn’t get any inference that they were leftovers or extras made for the residents”[33]. As it seems to me, Ms Hopkinson’s observations provide a very poor basis for a very grave allegation. It seems not to have occurred to Ms Hopkinson that there might have been another explanation. That provided by Ms Poole was that it was normal practice for additional desserts to be made to cater for the unusual eating patterns of dementia patients.
[33] Transcript page 668, line 45.
I reject the suggestion that residents were denied food in this way.
The remaining matters under this heading were originally reported as matters going to compliance with expected outcome Item 4.7, the requirement that there be an effective infection control programme. The matters did not form part of the original decision to impose sanctions nor, so far as I can tell, the reconsideration decision. Nonetheless, it appears to be accepted by Blue Care that the stock rotation systems had fallen down and that eight items in the kitchen “were out of date or not decanted”. The items that were out of date were recorded as being lemon juices, mixed spices and nutmeg. It seems not to be suggested that residents’ nutrition or health was at risk as a consequence of these failings. The items described appear to be items with a “best-before date” rather than a “use-by date”. Food past a “use-by” date “should not be consumed because of health and safety reasons”[34]. Similar considerations do not arise with food past a “best-before” date.
[34] See the Foods Standards Code, Standard 1.2.5.
Ms Hopkinson observed that Mareeba Garden’s system for checking and recording the dishwasher temperatures were not consistently followed and that the temperature of two desserts was recorded slightly above the required temperature. These matters are truly de minimus.
Other
Two matters remain, both accepted by Blue Care. The first is the observation made by Ms Quirke in the course of the review audit between 20 and 29 December 2008 of an EEN crushing a slow release medication. The medication had not been identified, as it ought to have been, by the prescribing pharmacy, as a medication that ought not to have been crushed. There is nothing to suggest that this was other than an isolated incident which was quickly corrected. Moreover, the Secretary accepted that, on the way in which the case had been put, it was not a failing evident as at 16 December 2008. It was submitted that it went to demonstrate the “degradation” of the systems in place in Mareeba Garden.
The other matter, again admitted, is the fact that an EEN lacked the skills to accurately weigh residents. So much is evident from the errors made in the course of weighing residents on 16 November 2008.
Professor pearson
The Secretary relied upon the conclusions of Professor Alan Pearson, the Professor of Evidence Based Healthcare at the University of Adelaide. Professor Pearson has had extensive practical and academic experience in nursing, health care and aged care. He was asked to consider the various Agency reports, the witness statements of witnesses for Blue Care and the witness statements of Ms Duncan and Ms Hopkinson and to express opinions on the basis of that material. His opinions, it was said, had not been contradicted.
The opinions of Professor Pearson were, if I may say so, expressed somewhat baldly in his report. His reasons for reaching the conclusions that he did were explored in more detail in the course of his oral evidence. His opinions may be divided into two broad categories – those that assume a state of facts and express an opinion based upon the assumed state of facts and those that involve an expression of opinion about what is, and what is not, desirable nursing care. I would put much of what appears in his report in the former category. Thus, the first question asked of Professor Pearson by the solicitors for the Secretary, and Professor Pearson’s opinion are as follows:
“Do the findings and observations demonstrate departures from a reasonable standard of nursing care and documentation at Mareeba Gardens as at 17 December 2008?
In my opinion, the findings and observations, as they are reported in the documents, present examples that suggest a number of serious departures from a reasonable standard of nursing care, documentation and systems at Mareeba Gardens.”
I would put the views on more narrow subjects expressed in the course of the hearing in the latter category. By way of example, Professor Pearson said, by way of qualification of an opinion expressed in his report, that problems with information management can, and often do, result in serious adverse resident outcomes.
I am content to accept Professor Pearson’s opinions of the latter category however I have considerable difficulty in accepting the more sweeping statements in his report. I am reluctant to do so because it is not at all clear that the state of facts assumed by Professor Pearson accords with the facts as I have found them to be. The report, and the cross-examination of Professor Pearson on it, leads me to conclude that the report is more likely based on the findings made by Ms Duncan and Ms Hopkinson. Moreover, the decision that must be made is one informed by the statutory setting. The opinions of an expert such as Professor Pearson may assist in the making of a decision but cannot be a substitute for a consideration of the matters that the statute requires a decision-maker to consider.
The proper characterisation of the failings by mareeba garden
The result of this is that I am satisfied:
(a)that from mid-November 2008, at least, Mareeba Garden’s systems that ought to have required consideration of recorded unplanned weight loss on the part of residents were not operating as they ought;
(b)that from that time apparent and recorded variations in weight were not consistently considered, or, if they were considered, no record was made of the consideration given to the weight loss. There was, in short, no systematic and documented response to weight variation;
(c)that in mid-December 2008, residents had been recorded as experiencing apparent and unexplained weight loss which is not, in three instances, shown to have been considered as it ought to have been;
(d)that an inability on the part of a nursing staff member to accurately weigh residents had not been detected as it ought to have been;
(e)that the supplements register was not updated as it ought to have been. That failing did not, though, have the consequence that residents who ought to have been receiving supplements did not do so;
(f)that the stock rotation systems in the kitchen had not been properly monitored with the consequence that some food items had passed their “best-before” date; and
(g)that the dishwasher temperature had not been recorded and monitored where it ought to have been.
I should say, as well, that I am satisfied:
(a)that no resident suffered actual unexplained weight loss;
(b)that there was, at worst, a minimal risk of unexplained weight loss as a consequence of Ms Poole falling behind in her consideration of reports of apparent weight loss;
(c)that referrals to a dietician were made where required;
(d)that the recommendations of the dietician were acted upon promptly; and
(e)that residents were not denied any of the food that they ought to have received.
The submissions for the Secretary drew attention to the decision of the Tribunal in Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care[35] where the Tribunal, speaking of the Residential Care Standards made under s 54-3 of the Act, said:
“207.Riverside's responsibilities that are relevant in this case are those specified in s. 54-1(e) of the Act. Those responsibilities are to comply with Residential Care Standards made under s. 54-3. In all, the four standards comprising those Residential Care Standards set 44 outcomes that are to be met by the nursing home. Does each outcome have to be met? It seems to us that, ifRiverside is to meet its responsibilities, it does have to do that. An examination of the Residential Care Standards reveals that the standards reflect the quality management and services expected of a nursing home. They are what is described as an ‘integrated matrix’ and no standard can be considered in isolation from the others. Given that each standard is, in reality, no more than a grouping of outcomes that a nursing home is expected to achieve, it must follow that those outcomes also form an ‘integrated matrix’ in which no expected outcome can be considered in isolation from the others. Furthermore, given that each expected outcome is assessed by reference to criteria that are expressed to be cumulative rather than in the alternative, it must also follow that those criteria also form part of that ‘integrated matrix’. If a nursing home fails to meet a criteria [sic], it fails to meet an expected outcome and so fails to meet one of the standards and, ultimately, fails to comply with the Residential Care Standards. As it is required to comply with those Residential Care Standards, it then fails to meet one of its responsibilities under the Act.”
It is, I accept, appropriate to adopt the “factual matrix” approach to the issue of compliance with the Accreditation Standards.
[35] [2003] AATA 248 at [207].
Blue Care accepts, correctly as it seems to me, that the findings I have made are capable of demonstrating that expected outcome Item 1.8, Information systems, was not achieved. That being so, Mareeba Garden has failed to comply with one of its responsibilities under Part 4.1 of the Act and the jurisdiction requirement of s 65-1(a) of the Act is made out. There being no question that s 65-1(c) has been satisfied, what remains to be considered is whether it is appropriate to impose sanctions having regard primarily, but not solely, to the matters in s 65-2 of the Act.
The Secretary invites me to conclude, as well, that Mareeba Garden did not comply with Item 2.10, Nutrition and hydration. It is, strictly speaking, unnecessary to decide that question however given that a finding adverse to Blue Care has been made I think it proper to record that I have a contrary view and to record briefly my reasons for coming to that view.
Item 2.10, Nutrition and hydration, requires an outcome that residents “receive adequate nourishment and hydration”. The Secretary’s submissions point to a failure to achieve that outcome by reference to instances of unexplained weight loss, by reference to allegations that residents did not receive dietary supplements when required to do so and by reference to allegations that residents were denied food that ought to have been provided to them. Professor Pearson considered that there was evidence that residents were not receiving adequate nourishment and hydration because, on the face of the documents available to him, there was unexplained weight loss.
That cannot be accepted. There would be unexplained weight loss if all residents’ weights had been incorrectly recorded. But that fact alone cannot demonstrate that residents were not receiving adequate nourishment and hydration; it says no more than that there is apparent weight loss. Investigation is necessary to determination whether the weight loss is real or not, and, if it is real, whether it is explained by inadequate nourishment or hydration or by factors relating to the resident’s condition.
I accept, as Professor Pearson said, that an information management problem, of the type evident at Mareeba Garden can, and often does, result in adverse resident outcomes. But there were, in fact, no adverse outcomes. Additionally, the two main communication deficiencies, Ms Poole’s failure to keep up to date with apparent weight loss and to record any explanation for apparent weight loss, and the failure to keep the supplements register up to date were not, in my view, likely to have an adverse outcome. That is so because in each case there were other safeguards within the system. Despite Ms Poole’s failure to keep up to date there was other monitoring of residents’ weights by nursing staff and medical practitioners, even in the instances where a resident recorded an apparent weight loss. The supplement list was not the primary source of information regarding residents to whom supplements were to be provided. It may be, as Blue Care submitted, that it was a redundant system, but whilst the system was in place it ought to have been followed.
The true failing in communication was the failing to note, in a timely fashion and on the weight observation chart, the instances where apparent weight loss was not real, that is, that a particular recording was incorrect, and where the weight loss was real but consistent with the resident’s condition. Ideally, in those latter instances, the weight observation chart ought to refer the reader to the progress notes or the medical progress notes where the weight loss was considered and that consideration recorded against the possibility that decisions about prospective care are made on the basis of less than full information. Additionally, the evident inability of a staff member to weigh residents accurately was not detected and acted upon, as it ought to have been, in a timely manner.
For the reasons I have already explained I am not satisfied that the primary findings sought by the Secretary are able to be made. Accordingly, I cannot find a failure to achieve the expected outcome. Moreover, the evidence which has been canvassed at length satisfies me that residents were, in fact, receiving adequate nourishment and hydration having regard to the circumstances of the particular residents.
Nonetheless, I accept that matters of deficiency, falling short of demonstrating non-compliance with an expected outcome, are relevant to a decision about the appropriateness or otherwise of sanctions and to the length of sanctions if they are to be imposed. Thus, it might be appropriate to impose sanctions where only one expected outcome was not being met but where, in all other outcomes, a provider was only just meeting the expected outcome and had deficiencies in many other expected outcomes. But the present case is not such a case.
The deficiencies that have been identified were, I consider, of a minor nature by reference to their gravity or their frequency. Thus, the incorrect provision of slow release medicine is serious in that the resident was deprived of the therapeutic benefit that the medical practitioner sought to achieve but it has not been shown to have been other than an isolated incident, contributed to, in part, by a failing on the part of the pharmacist. The other failings were truly minor in nature.
The Secretary does not suggest that there are previous instances of non-compliance that are relevant nor is there any suggestion of a failure to comply with an undertaking to remedy non-compliance. There are no “other matters” specified in the Sanctions Principles.
The findings that I have already made satisfy me that the established non-compliance did not threaten the health, welfare or interests of residents whether present in December 2008 or in the future. The same is true of the other matters that amount to deficiencies. I do not regard the matters identified as being of the nature that would warrant consideration of principles of deterrence whether in general or in relation to Blue Care.
In the result I am of the view that the case is not one where it is appropriate to impose sanctions. I would then, in application 2009/1964, set aside the decision of 17 December 2008 which imposed the sanctions. That makes it unnecessary to make any decision in application 2009/2765.
Some general observations
I cannot depart from this case without making some observations about the proceedings and the decision-making processes that led up to them. The proceedings occupied 11 days of hearing time. Senior and junior counsel, instructed by solicitors in private practice, were engaged on each side. The public and private expense in legal costs was, no doubt, huge. Many witnesses were called from their daily tasks in aged care to provide instructions, statements and ultimately give evidence. I cannot help but think that all of this might have been avoided if a more measured approach had been taken at the outset. A decision to impose sanctions on the footing that there exists an immediate and severe risk to the safety, health or well-being of residents is a step of enormous gravity. It has the practical effect that the provider is deprived of the opportunity to demonstrate, before the imposition of sanctions, that sanctions are not called for or that the matters of apparent concern are not, in truth, that concerning.
The Secretary must, of course, be in a position to prevent immediate and severe risk to the safety, health or well-being of residents. They will almost invariably be vulnerable and plainly deserving of proper protection. But with the benefit of what is, I accept, hindsight, much of what was thought at the time to be concerning is shown to be far less concerning, or not at all concerning. I do not, in making these observations, want to be thought of as criticising Ms Duncan or Ms Hopkinson. They were unable to obtain clear explanations for some matters that, prima facie, called for explanation. In part, the fact that the matter proceeded as it did is attributable to the fact that the nursing staff at Mareeba Garden were not able to provide explanations to the assessors at the time. Perhaps they did not realise the seriousness of what the assessors were reporting to them. Perhaps it was unrealistic to expect busy nursing staff to be in a position to immediately provide explanations for the matters that troubled the assessors, all the more so if the nursing staff were not aware of the apparent seriousness of the concerns of the assessors.
But, however the matter is viewed, I find it impossible not to conclude that very considerable public and private expense and very considerable anxiety might have been avoided if the concerns of the assessors had been immediately conveyed to someone in the position of Mr Olley, Blue Care’s residential care director. Blue Care had the capacity, as was immediately demonstrated, to immediately send additional resources to Mareeba Garden. Within 48 hours of the decision regarding serious risk having been taken Ms Geraghty and Ms Kennedy were able to demonstrate that the principal concern was nowhere near as concerning as it had been thought. It is, in hindsight, a great pity that a decision about immediate and severe risk was made so quickly without Blue Care having an opportunity to explain that which has been shown to be explicable. Additionally, it may be wondered why the treating general practitioner’s were not asked to comment on whether their patients were at immediate and severe risk.
I want, as well, to comment on a practice adopted by the Agency in these proceedings when answering a summons to produce documents issued by the Tribunal at the request of Blue Care. When the documents were produced they had been edited, apparently to delete reference to material that might identify residents. It may be that the editing process was perfectly proper and may have been required by the Aged Care Act. It was unnecessary to consider the matter at the hearing as the parties were able to proceed on the basis of the material as edited however it may be desirable to note that prima facie it is not for the parties to decide whether a summons from the Tribunal ought be complied with or whether documents ought be edited before production. Where a person summonsed to produce documents considers that some reason exists that would warrant a restriction on the publication of material, such matters ought be raised with the Tribunal and an appropriate order sought from the Tribunal. I will ask the Registrar of the Tribunal to take the matter up with the Agency to avoid the matter being problematic in future cases.
I certify that the preceding 155 paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ..............Signed........................................................
AssociateDates of Hearing 20 April 2010; 4-7 May 2010 (Cairns); 10-14 May 2010; 9 June 2010 & 11 June 2010
Date of Decision 20 July 2010
Counsel for the applicant Mr SJ Keim SC with Ms K Klease
Solicitors for the applicant Blake Dawson Waldron
Counsel for the Respondent Mr PJ Davis SC with Mr SA McLeod
Solicitors for the Respondent Clayton UtzAnnexure [deleted pursuant to s 35 of the Administrative Appeals Tribunal Act 1975]
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