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Sanctions - prevention is better than the cure

By Julie McStay09 Sep 2010

On 20 July 2010, after a long and no doubt arduous battle, BlueCare, were finally successful in overturing sanctions imposed on one of its north Queensland facilities when the Administrative Appeals Tribunal (Tribunal) delivered its decision in The Uniting Church in Australia Property Trust (Q.) and Secretary, Department of Health and Ageing [2010] AATA 536 (20 July 2010). The Tribunal held that the Department of Health and Ageing (Department) had no basis for imposing those sanctions.

The Tribunal‘s decision reflects a positive outcome for the provider and the industry as a whole. It also serves as a timely reminder to all providers that when it comes to sanctions, prevention is certainly better than the cure.

The Tribunal made it clear that had there been more comprehensive discussions between the Agency and the facility on the first day of the Agency site visit that the sanctions (and the costs ultimately incurred in trying to overturn those sanctions) could have been avoided.

Facts

On 16 December 2008, the Agency undertook an unannounced support contact visit at the facility and concluded that it was not compliant with its responsibilities to ensure care recipients receive adequate nourishment and hydration.

The next day, the Agency reported to the Department that they considered there to be 'serious risk' to care recipients at the facility. On the basis of that report, the Department found that there was an 'immediate and severe risk' to the safety, health or wellbeing of the care recipients in the provider‘s care and imposed the following sanctions:

  • that the provider must appoint a nurse advisor or have its approval as a provider of aged care services revoked; and
  • that the provider could not claim commonwealth government subsidies for any new residents for a period of six months commencing on 17 December 2008.

As sanctions are imposed against a provider and not a facility, the Department‘s decision to withdraw funding for all new care recipients had a very significant effect on the provider who operated multiple facilities. Consequently, the provider sought urgent relief for this sanction to be lifted. In February 2010, in recognition of the significant effect the withdrawal of funding had on the provision of aged care services to the community, the Department lifted that sanction.

The provider also requested that the Department review its decision to impose sanctions on the basis that the Agency‘s decision that there was 'serious risk' at the facility was based on errors of fact. The Department refused to overturn its decision. The provider then sought relief from the Tribunal.

Legislation

Under the Aged Care Act 1997 (Cth) (Act) the Department is responsible for imposing sanctions, not the Agency.

The Agency‘s role under the Accreditation Grant Principles 1999 (Cth) is to:

  • immediately notify the Department if it decides that a failure of the approved provider to comply with the Accreditation Standards has placed, or may place, the safety, health or wellbeing of a care recipient at 'serious risk'; and
  • recommend whether sanctions should be imposed.

Ordinarily the Department is not permitted to impose sanctions without first notifying the approved provider. However, the Act provides that the notice requirements may be dispensed with if the Department is satisfied that the non-compliance poses an 'immediate and severe risk' to the safety, health or wellbeing of the care recipients in the approved provider‘s care.

The Act provides that when deciding whether to impose sanctions on an approved provider that the Department must consider:

  • whether the non-compliance is of a minor or serious nature;
  • whether the non-compliance has occurred before and if so, how often;
  • whether the non-compliance threatens the health, welfare or interests of care recipients;
  • whether the approved provider has failed to comply with any undertaking to remedy the non-compliance;
  • the desirability of deterring future non-compliance; and
  • any other matters specified in the Sanctions Principles.

'Serious risk' is the threshold used by the Agency to determine the timeframe in which to notify the secretary and whether to recommend that sanctions are imposed. The threshold for imposing sanctions without notice is 'immediate and severe risk' not 'serious risk'.

Tribunal‘s decision

After 11 days of evidence and argument, the Tribunal ultimately concluded that:

  • while there were some minor shortcomings in relation to the facility‘s information systems, those shortcomings were not nearly as serious as the Department and the Agency reported;
  • the minor deficiencies in the facility‘s systems did not warrant the imposition of sanctions by the Department;
  • the non-compliance was minor; and
  • the non-compliance had never posed an 'immediate and severe risk' to the health, safety or welfare of the care recipients at the facility.

Lessons

The Tribunal stated that sanctions may never have been imposed if there had been more comprehensive discussions between the Agency, the Department and Blue Care before the sanctions were imposed.

The Tribunal found that as a result of that inadequate communication:

  • The Department failed to take into account information which would be relevant to deciding whether there was 'immediate and severe risk'.

    For example, the Department did not obtain the opinion of the care recipients‘ treating doctors before making the finding of 'immediate and severe risk'. If they had done so, information about the individual residents‘ medical conditions would have demonstrated that changes in the condition of those residents were an expected consequence of their medical conditions and not due to any lack of care.

  • The Department placed too much weight on certain pieces of evidence.

    For example, the Department concluded that there was no or inadequate monitoring of care recipients‘ nutrition based on a conclusion that the weight charts were not being regularly reviewed by clinical staff. However, further inquiries would have revealed that the weight charts were reviewed daily by clinical staff.
     
  • The Agency assessors inappropriately inferred, after finding additional desserts in the facility fridges, that the care recipients had been denied adequate nutrition when in fact, it was routine practice for additional desserts to be left in those fridges to cater for the unusual eating patterns of dementia patients.

Practical tips

When there is 'immediate and severe risk', the Department is not required to notify an approved provider prior to making a decision to impose sanctions. However a provider who is concerned or suspects that there is a risk of a finding being made by the Department of 'immediate and severe risk', should communicate with the Agency and the Department to determine the basis on which they consider the risk exists so that the provider can take all possible steps to satisfy those concerns before the finding is made.

To demonstrate compliance with the standards during an Agency site visit we recommend that providers:

  • Ask the Agency to immediately inform the provider of any concerns it has about what they have observed so to maximise the opportunity of the provider to respond.
  • Ask the Agency to detail the evidence it intends to rely upon to support their concerns.
  • Where possible (and especially when an indication has been given that there are concerns about a finding of 'immediate and severe risk') the provider should ensure that a senior member of staff is dedicated to communicating with the Agency and responding to any queries or requests for information by the Agency.
  • Providers should systematically consider each issue raised by the Agency and provide any additional information to the Agency that the provider wants the Agency to consider before making their findings.

Finally, there is no doubt that Agency visits, especially when there are concerns about a possible finding of 'immediate and severe risk', can be extremely stressful events for staff and managers alike.

Providers should ensure that their managers and staff receive appropriate training to ensure that they have a thorough understanding of the Agency‘s role and the basis on which a finding of 'immediate and severe risk' can be made.

This training will better equip those staff members to deal with the Agency and enable them to take all possible steps to address the concerns of the Agency and hopefully avoid the imposition of sanctions. As this decision has shown, once in place, it is a very difficult and expensive process to overturn sanctions and undoubtedly, prevention is better than the cure.