Darling Downs Hospital and Health Service v The Regulator (under the Work Health and Safety Act) [2022] QIRC 456

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Darling Downs Hospital and Health Service v The Regulator (under the Work Health and Safety Act) [2022] QIRC 456 PARTIES: Darling Downs Hospital and Health Service (Applicant) v The Regulator (under the Work Health and Safety Act) (Respondent) CASE NO: WHS/2019/142 PROCEEDING: Application for review DELIVERED ON: 24 November 2022 MEMBER: Dwyer IC HEARING DATES: 25 & 26 May 2020 ORDER: 1. The Internal Review Decision be set aside and substituted for a decision that Improvement Notice I1027934 is void ab initio. CATCHWORDS: INDUSTRIAL LAW - WORK HEALTH AND SAFETY - improvement notice issued - application for review - reasonable belief - reasonable inquiries - particularisation of contravention LEGISLATION: Work Health and Safety Act 2011 (Qld) ss 3, 19, 32, 33, 191, 229, 229B, 229D, 229E CASES: ENCO PRECAST PTY LTD v Construction Forestry, Mining and Energy Union & Ors [2020] QIRC 188 George v Rockett (1990) 170 CLR 104 Dare v Pulham (1982) 148 CLR 658 R v Juraszco [1967] Qd R 128 -- 1 of 21 -- 2 Growthbuilt Pty Ltd v WorkSafe NSW [2018] NSWIRComm 1002 Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 061 Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No. 2) [2019] QIRC 133 Watpac Construction Pty Ltd v The Regulator (under the Work Health and Safety Act) [2021] QIRC 375 GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 306 APPEARANCES: Mr C. J. Murdoch KC of Counsel instructed by DWF Australia for the Applicant Mr S. A. McLeod KC of Counsel instructed by Office of Industrial Relations for the Respondent Reasons for Decision Background [1] The facts in this matter are largely not in contention. On 17 May 2019 and 29 July 2019, the Regulator (under the Work Health and Safety Act 2011) ('the Regulator') received complaints regarding: • threatening verbal and physical behaviour of dementia patients at the Dr EAF McDonald Nursing Home located in the West Wing of the Oakey Hospital ('the aged care facility'); and • the response by the Darling Downs Hospital and Health Service ('the DDHHS') to this behaviour. [2] On 15 August 2019, Inspector Gloria Matthews visited the nursing home to conduct inspections pursuant to her powers under the Work Health and Safety Act 2011 (Qld) ('the Act'). Upon attending at the nursing home, Inspector Matthews met with Ms Marjorie Crawford, Nurse Unit Manager, West Wing. [3] There were three meetings in total though it was the second meeting on 16 August 2019 that precipitated the Improvement Notice that is the subject of this application ('the meeting'). Inspector Matthews spoke to Ms Crawford about inter alia pre-admission -- 2 of 21 -- 3 procedures for patients entering the West Wing of the aged care facility ('the dementia wing'). Inspector Matthews also conducted an inspection of the dementia wing. [4] Following the meeting on 16 August 2019, Inspector Matthews issued an Improvement Notice (designated as I1027934) ('the IN') to DDHHS. The IN asserted that Inspector Matthews reasonably believed that the DDHHS were contravening s 19(3)(c) and s 33 of the Act. The IN particularises the contravention as follows: You have not ensured, so far as is reasonably practicable, the provision and maintenance of a safe system of work for workers carrying out the assessment of potential residents prior to their admission to the nursing home. Evidence revealed that a worker who carries out the pre- admission assessment is not provided with a set of criteria to ensure consistency of proposed resident assessments. This poses a risk to the health and safety of workers and other persons as the decision to admit a resident or not is based on an individual workers perception, knowledge, experience and a residents behaviour at a moment in time rather than following a specified standard criteria i.e. safe system of work, to determine the level of risk to workers and others. [5] On 29 August 2019, an application for internal review was lodged by DDHHS seeking that the IN be cancelled on various grounds, pursuant to section 229 of the Act. On 26 September 2019, an Internal Review Officer determined that the IN was validly issued ('the internal review decision'). [6] On 25 October 2019, DDHHS filed an application for review pursuant to s 229B of the Act. The application seeks a review of the internal review decision of the Regulator. Nature of review [7] Section 229D of the Act provides that a review is to be dealt with by way of re-hearing, unaffected by the decision.1 [8] Deputy President O'Connor (as he then was) expanded on this in Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 ('Lindores'),2 where he said: A review under s 229D of the Act is to be dealt with by the Commission "by way of rehearing, unaffected by the decision." In dealing with a similar expression in s 246 of the Coal Mining Safety and Health Act 1999, Martin J observed that the expression "by way of rehearing, unaffected by the decision" involved a certain clumsiness of expression. Martin J wrote: The language used in s 246 is inconsistent. For an "appeal by way of rehearing" to be successful it ordinarily requires that the original decision-maker be shown to have erred in law or fact. But this section says that the appeal is to be "unaffected by the chief inspector's review decision" which would seem to be inconsistent with the ordinary understanding of an appeal by way of rehearing. His Honour went on to observe: In other words, section 246 uses a form of words which is more clearly understood as an appeal de novo. An appeal de novo involves a rehearing of the evidence by the appellate court. It is analogous to a new trial. 1 Work Health and Safety Act 2011 (Qld) s 229D(2). 2 [2018] QIRC 061. -- 3 of 21 -- 4 In De Tournouer v Chief Executive, Department of Environment & Resource Management, Fraser JA addressed the meaning to be given to the same expression: Section 880(2) provides that such an appeal is "by way of rehearing, unaffected by the reviewer's decision." Section 882(1) conferred extensive powers upon the Land Court including, in s 882(1)(e), a power to set aside the review decision and substitute it with a decision that the court considered appropriate. In summary, the Land Court was empowered to exercise afresh the statutory power to grant or refuse to grant a water licence on the applicant's application. [9] The powers granted to the Commission by s 229E of the Act permit me to inter alia confirm or vary the internal review decision or set it aside and substitute it with a new decision. Grounds of review [10] DDHHS relies on the following grounds:3 i. The Inspector did not hold a reasonable belief of a contravention against DDHHS; ii. The Inspector did not make reasonable inquiries as to how DDHHS discharges its obligations under the Act; iii. The IN does not consider all the reasonably practicable steps undertaken by DDHHS to discharge its duties under ss 19 and 33 of the Act; iv. The IN inadequately particularises the alleged contravention; and v. The IN is void for ambiguity and/or duplicity. [11] Each of the grounds is addressed later in these reasons however, before turning to specific consideration of the grounds, I note that grounds (i)-(iii) are broadly interrelated in that each goes to the reasonable belief of the inspector, or the steps taken (or not taken) in coming to her (asserted) reasonable belief. [12] Similarly, grounds (iv) and (v) are also interrelated in that they seek to impugn the clarity or adequacy of the particulars of the IN. [13] Without re-framing the grounds of appeal, for reasons of efficiency I will consider the grounds of appeal in the context of the two clear themes of the appeal, namely: • a challenge to the reasonable belief of Inspector Matthews; and • a challenge to the adequacy of the particulars in the IN. [14] The stated grounds of appeal evoke consideration of some well-traversed principles. 3 Application for WHS Review, Part 5. -- 4 of 21 -- 5 Reasonable belief [15] Section 191 of the Act empowers an inspector to issue an improvement notice where they 'reasonably believe' a person is contravening or has contravened the Act. The jurisprudence on the term 'reasonable belief' is well settled. In Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No. 2),4 Vice President O'Connor held:5 Reasonable belief is not defined in the WHS Act. In George v Rocket & Anor the High Court had to consider what "reasonable grounds" meant in the context of whether or not a Magistrate had reasonable grounds to issue a search warrant. In a unanimous judgment, the Court (Mason CJ., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said: The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. (Emphasis added) [16] In Growthbuilt Pty Ltd v SafeWork NSW,6 Chief Commissioner Kite held: I have referred, in these reasons, to additional inquiries the Inspector may have undertaken. I do not intend by those comments to suggest that the Inspector was required to conduct a full investigation. That would be contrary to the authorities such as George v Rockett, Halley v Kershaw and Essential Energy. The Inspector was not required to satisfy himself to the level of proof of a breach of the Act. Prohibition Notices are intended to prevent potential breaches so that is beyond what is required of him. An inspector is however required to balance the objective information available to him, and is obliged to make reasonable inquiries. If he had attempted to make contact with the engineer and not been able to speak with him, for example, that would provide a different factual matrix than making no attempt to clarify any concerns about an expert engineer's opinion that contradicted his view. A similar point may be made about failing to raise with Mr Radopolous the allegation made by Ace or why the excavator was still in the excavation. The Inspector is not bound by the responses but must take them into account in forming his view. A reasonable and balanced approach does not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions. (Emphasis added) [17] In ENCO PRECAST PTY LTD v Construction, Forrestry, Maritime, Mining and Energy Union & Ors ('ENCO')7, Commissioner Hartigan, also referring to George v Rockett,8 held:9 4 [2019] QIRC 133. 5 Citations omitted. 6 [2018] NSWIRComm 1002 [94]-[96]. 7 [2020] QIRC 188, [105]-[108] 8 (1990) 170 CLR 104. 9 Citations omitted. -- 5 of 21 -- 6 In George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112, the High Court considered the term "reasonable grounds" for a state of mind including suspicion, as follows: When a statute prescribes that there must be "reasonable grounds" for a state of mind – including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. The New South Wales Industrial Commission in Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor ("Acciona") when considering a similar provision of the Work Health and Safety Act 2011 (NSW), had regard to the following authorities: 65. In R v Rondo, an authority relied upon by both parties, the Court of Criminal Appeal considered the term "reasonably suspects" in the context of section 357E of the Crimes Act 1990 which was, at the time of those proceedings, in the following terms: 357E A member of the police force may stop, search and detain: (a) any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence; or (b) any vehicle in which he or she reasonably suspects there is any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence. 66. After considering the authorities cited in Streat v Bauer; Streat v Blanco (unreported, Supreme court, NSW, Smart J, Nos 13686, 13687 of 1996, 16 March 1998) Smart AJ stated as follows at: 53 These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create more than a possibility. There must be something which would create in the mind of a reasonable persona an apprehension of fear of one of the state of affairs covered by s. 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be show. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances. After considering these authorities, the New South Wales Industrial Commission concluded that: 67. In the present matter, the question to be answered was whether or not there was some factual basis, some material or materials with probative value, which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, s 19 of the WHS Act by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the Site. -- 6 of 21 -- 7 I propose to adopt a similar approach in this matter. I will consider whether or not there was some factual basis or material/s with probative value which would create, in the mind of a reasonable person, a suspicion that Enco had contravened, or was contravening, s 19 of the WHS Act. (Emphasis added) [18] I concur with the approach to that adopted by Commissioner Hartigan though I would add, as I noted in Watpac Construction Pty Ltd v The Regulator (under the Work Health and Safety Act)10, that I consider that the standard of belief required leaves room for that degree of 'surmise or conjecture' as espoused in George v Rockett. Particulars [19] Section 192 of the Act compels the issuing party to include certain information in an improvement notice. In particular, s 192(1)(c) requires the issuing party to 'briefly' state how the Act is being or has been contravened. The term 'briefly' is picked up again in the pro-forma improvement notice used by inspectors where the space allocated on the form for particulars has the heading 'Brief description…'. [20] In Lindores 11 His Honour Deputy President O'Connor (as he then was) citing R v Juraszco12 held that the function of particulars is to enable a person to know the nature of the allegation which he or she is called on to meet. His Honour went on to reference an extract from Dare v Pulham:13 Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it…; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial… (Emphasis added) [21] While the contents of an improvement notice are not pleadings in the strict sense of legal drafting, and while the use of the term 'briefly' in s 192 of the Act allows an inspector to truncate their description of the contravention, the principles adopted by His Honour in Lindores are entirely apposite to establishing a standard for what an improvement notice must communicate. It is not enough for an improvement notice to cite a section number of the Act imposing broad duties and then simply say e.g. the system of work is unsafe (in the opinion of an inspector). [22] Section 192(1)(c) of the Act requires the issuing officer to describe how the Act is being contravened. This necessarily requires sufficient description to enable a recipient of an improvement notice to understand what actions they are taking (or not taking) that give rise to the asserted contravention. 10 [2021] QIRC 375. 11 At [20]. 12 [1967] Qd R 128, 135. 13 (1982) 148 CLR 658, 664. -- 7 of 21 -- 8 Onus [23] Neither party has raised any controversy on the question of onus. Identifying questions of onus in appeals of this nature is something of a vexing question and often an unnecessary distraction. [24] I broadly concur with the conclusions reached by Commissioner Hartigan in ENCO.14 Further, in GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 201115('GJT') Vice President O'Connor concluded:16 The contentions that the Applicant was denied “a fair trial” is totally misconceived as he was afforded every opportunity to present his case as he desired. He bears the onus to demonstrate why the Improvement Notice should be set aside. The Commission repeatedly informed the Applicant's representative during the proceedings that the issue is to be determined on the evidence presented… (Emphasis added) [25] Also in GJT His Honour observed:17 A review under s 229D of the WHS Act is to be dealt with by the Commission “by way of rehearing, unaffected by the decision”. An appeal de novo involves a rehearing of the evidence by an appellate court. It is analogous to a new trial. Because the external review is a hearing de novo the Applicant is able to run its case as it sees fit and place before the Commission any evidence which may not have been before Inspector De Ridder… (Emphasis added) [26] An unduly intense focus on onus in a hearing de novo can often be a distraction. While I note His Honour's finding about onus in GJT his subsequent comment that 'the issue is determined on the evidence presented' captures the notion of a hearing de novo most accurately. Regardless of where the onus might technically lie, it is incumbent on each party to such proceedings to ensure the Commission is fully possessed of all relevant facts necessary to support their respective contentions. Relevant legislative provisions [27] The IN under review states that Inspector Matthews reasonably believes that DDHHS was contravening sections 19(3)(c) and 33 of the Act. [28] Section 19 of the Act relevantly provides: 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of — (a) workers engaged, or caused to be engaged by the person; and 14 [2020] QIRC 188. 15 [2021] QIRC 306. 16 At [152]. 17 At [143]. Citations omitted. -- 8 of 21 -- 9 (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable— (a) the provision and maintenance of a work environment without risks to health and safety; and (b) the provision and maintenance of safe plant and structures; and (c) the provision and maintenance of safe systems of work; and … (Emphasis added) [29] Section 33 of the Act relevantly provides: 33 Failure to comply with health and safety duty—category 3 A person commits a category 3 offence if— (a) the person has a health and safety duty; (b) the person fails to comply with that duty. Maximum penalty (a) for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—500 penalty units; or (b) for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,000 penalty units; or (c) for an offence committed by a body corporate—5,000 penalty units. Submissions of the parties [30] Following the hearing held on 25 & 26 May 2020, the parties filed written submissions pursuant to a directions order issued on 4 August 2020. Closing submissions of DDHHS [31] In its closing submissions filed on 31 August 2020, DDHHS argues that the internal review decision 54413 should be overturned and IN I1027934 be set aside and cancelled because it did not contravene ss 19 and 33 of the Act. [32] DDHHS's primary ground for review is that the Inspector did not hold a reasonable belief of a contravention against it as required by s 191 of the Act. [33] Its reasoning for this ground is submitted to also support grounds 2 and 3 for review, respectively that the Inspector did not make reasonable inquiries as to how DDHHS -- 9 of 21 -- 10 discharges its WHS obligations, and the IN does not consider all the reasonably practicable steps taken by DDHHS to discharge its obligations under ss 19(3)(c) and 33 of the Act. [34] DDHHS submits that, prior to issuing the IN, the Inspector did not make adequate or reasonable inquiries to understand the system in place in respect of admission of residents to the nursing home. [35] At paragraph 27 of its submissions, counsel for DDHHS lists 44 pieces of information which could have been made known to Inspector Matthews, had she made adequate or reasonable inquiries.18 [36] In addition, DDHHS notes that Inspector Matthews appears to have made no or inadequate inquiries regarding the use of Interim Care Plans. It was noted that her notebook contained no mention of the plans.19 DDHHS submits that they are a means of transitioning residents from an existing care arrangement to the nursing home in an ongoing and graduated manner, by collecting interrelated reports, documentation and independent medical assessments of the resident,20 and risk manage the residents' symptomology.21 [37] DDHHS submits that had Inspector Matthews made inquiries about the use of Interim Care Plans, their development over time and publication to staff, she could not have formed a reasonable belief of contraventions of ss 19(3)(c) and 33 of the Act. [38] The IN states DDHHS has not ensured, so far as is reasonably practicable, safe work systems for workers carrying out assessments of potential residents before their admission to the nursing home, and that a set of standard criteria is required for consistent assessments. In response, DDHHS submits that the IN overlooks the circumstance that a dementia patient will be significantly affected by the environment in which they are assessed. A reliable and accurate assessment should occur in the proposed residential environment itself as it can be radically different to that where the resident is based prior to admission. [39] DDHHS submits that while Inspector Matthews noted there was 'evidence' of a contravention, there is no mention of any specific resident or event where a resident's admission was not undertaken with appropriate clinical and behavioural risk assessment. [40] Inspector Matthews appeared as a witness for the Regulator. In its closing submissions, DDHHS highlighted the following evidence given by Inspector Matthews at the hearing: • She attended nursing home upon complaints by workers of physical assault by a resident, however there was no suggestion that these incidents related to admission procedures.22 18 Submissions of the applicant, pp 6 – 13. 19 Submissions of the applicant, at paragraph [28]; Exhibit 1, documents 5 & 6. 20 Submissions of the applicant, p 13 [28]-[29]. 21 Submissions of the applicant, p 14 [32]. 22 T2-2, ll 35-45. -- 10 of 21 -- 11 • The IN was issued in relation to the provision and maintenance of a safe system of work for the workers prior to a new resident being admitted,23 and the Inspector was concerned that there were no specific criteria or documentation used to assess when a resident would be offered a position at the nursing home.24 DDHHS submits that if a person with dementia requires residency and space is available, they will be offered a position. Behavioural issues are assessed on the first day and an Interim Care Plan is subsequently developed. • While her oral evidence discussed the safety of workers upon a resident presenting at admission, the IN only concerned pre-admission, and not the day of or post-admission.25 Counsel for DDHHS concluded that her intention was to raise a concern regarding the lack of information available to staff on admission, which is not clear on the IN. • Inspector Matthews only relied on the conversation with Ms Marjorie Crawford as the basis to issue the IN.26 She did not have knowledge of when Interim Care Plans were prepared or what happened when a resident arrived at the nursing home.27 • She could not identify the set of standard criteria which should have been used by the nursing home to conduct a pre-admission assessment.28 • She accepted that a resident's behaviour could change from day to day or within an hour.29 [41] With respect to the adequacy and clarity of the IN, the DDHHS submits that the Inspector miscomprehends the elements of s 33 of the Act, creates duplicity in the allegation of an offence and demonstrates that Inspector Matthews was incapable of forming the reasonable belief required. [42] By the Inspector failing to consider the operation of Interim Care Plans to discharge its health and safety duty owed under s 19(3)(c), it submits that the description of the offence does not specify an act or omission within the system of work utilised by DDHHS. The allegation of an offence fails to particularise why the Interim Care Plans are not apt to discharge its duty. The IN assumes the admission procedure must occur offsite prior to the resident entering the nursing home. [43] DDHHS notes the description of the offence in the IN is brief and does not identify factors such as: the 'evidence' relied on, the nature of the risk, the duty owed to manage that risk, how the Care Plan fails to eliminate or reduce that risk, or how DDHHS can employ a more suitable risk elimination or management mechanism. 23 T2-3, ll 40-45. 24 T2-3, l 35 – T2-4, l 5. 25 T2-7, ll 25-45; T2-9, l 1. 26 T2-6, l 1. 27 T2-15, l 35. 28 T2-15, ll 40-45. 29 T2-18, ll 35-40. -- 11 of 21 -- 12 [44] DDHHS additionally submits that the IN is void for ambiguity and/or duplicity. The grounds are that Inspector Matthews failed to particularise: • The nature of the hazard; • The content of the duty owed by DDHHS; • How the existing system of work fails to meet the duty or eliminate the risk; • How it is reasonably practicable for DDHHS to employ a risk management mechanism that is superior to the Interim Care Plan currently utilised; and • How the Interim Care Plan is deficient. [45] It submits that the IN is also ambiguous as the offending section in the IN is identified as s 33 however, the language of s 32 is invoked. Closing submissions of the Regulator [46] In its closing submissions filed on 31 August 2020, the Regulator argues that the external review should be dismissed and IN I1027934 should be confirmed. [47] The Regulator noted the evidence given by Ms Crawford, the Nurse Unit Manager of the West Wing, regarding:30 • The facility and operations of the West Wing; • The intake of prospective residents into the nursing home; • The process, documentation used, and assessments undertaken on and pre- admission into the nursing home; and • How information is recorded that is not on an ACAT assessment. [48] Ms Crawford gave evidence that there was no documentation created during the pre- admission process as it would be recorded when the Interim Care Plan was formulated, and she assumed this information would be conveyed to the nurse admitting the resident. The absence of this documentation prior to admission highlights the risk to the health and safety of workers as there is no determination of the risk a resident would pose. [49] The Regulator noted the evidence given by Mr Boyd, the Director of Nursing and Ms Crawford's direct report, regarding:31 • The fact that most residents come to the nursing home from surrounding hospitals; • The information gathering process prior to admission of a resident; 30 Submissions of the Respondent filed 31 August 2021, pp 1-9. 31 Submissions of the Respondent filed 31 August 2021, pp 9-13. -- 12 of 21 -- 13 • The expression of interest process and that recording new information not contained in the ACAT would be contained in expression of interest documents, but no document was tendered to this effect; • The actual admission process of a new resident; and • The potential for information in the ACAT to be outdated, and the documentation of new information. [50] In its closing submissions, the Regulator highlighted the following evidence given by Inspector Matthews at the hearing:32 • No documentation was provided to her by Ms Crawford regarding any pre- assessment process as 'it was all done in her head';33 • The documentation provided to her was irrelevant to pre-admission as only related to post-admission, such as Interim Care Plans; and • There was a gap in DDHHS's system as information pre-admission e.g. triggers and new information, were not conveyed to the worker who was responsible for admitting the resident. [51] Mr Boyd's evidence of new information being contained in an expression of interest document should be rejected as he is mistaken. Ms Crawford's evidence is the true position, that there was no record of such information through the pre-admission process and no assessment criteria to ensure the consistency of potential resident assessments. [52] There is information that may not be recorded in the ACAT and a nurse undertaking admission of a resident may not alert workers to the true state of a resident's behaviour. There is simply an expectation for the information to be conveyed. [53] Inspector Matthews had reasonable belief of a contravention which was based on an evidentiary foundation and reasonably formed in the circumstances, such that the IN was lawfully issued. Reply submissions of the DDHHS [54] DDHHS filed an outline of submissions in reply on 7 September 2020. It submits that as evidenced by Inspector Matthew's evidence and the Regulator's submissions, the assessment of residents prior to admission is not the focus of their concern. [55] The lack of standard criteria for proposed residents' assessment to decide whether to admit, is based on a false premise. The core task of DDHHS is to provide residents appropriate and safe care upon admission and an assessment is not conducted to decide whether, on health and safety grounds, they should be admitted. 32 Submissions of the Respondent filed 31 August 2021, pp 13-17. 33 T2-4, ll 8-10; T2-6, ll 22-24. -- 13 of 21 -- 14 [56] The Interim Care Plan is developed on the first day by nursing staff with the resident and their family and deals with the issues of concern to the Regulator. A formal record of triggers pre-admission would be of little utility as past information may have changed and may be irrelevant if taken in a different setting. Reply submissions of the Regulator [57] DDHHS filed an outline of submissions in reply on 7 September 2019. It submits that DDHHS's argument that the procedure on admission ensures a safe system of work for workers carrying out admission assessments should be rejected. [58] There was inconsistency between the evidence of Ms Crawford and Mr Boyd in respect of when the Interim Care Plan was completed, and the orientation process delays a registered nurse from conducting the admission process. [59] The IN did not consider that Interim Care Plans were adequate to meet the duty and provide a safe system of work as Inspector Matthews considered they were relevant to post-admission not pre-admission. [60] The IN is not discursive or difficult to follow, it is plainly regarding the assessment process of a resident prior to their admission to the nursing home, not the actual day of admission as is the focus by DDHHS. [61] There is no substance in the submission of DDHHS that Inspector Matthews did not have set criteria which should have been identified by DDHHS, as she covered the criteria in her evidence, which was selectively summarised by DDHHS. [62] Inspector Matthews was of the requisite belief that, as required by the Act, DDHHS had a gap in its pre-admission process which fails to convey relevant information when a resident presented on the day of admission. Consideration Introduction [63] There are two broader factual aspects to this matter that ought to be addressed before the evidence is considered. [64] Firstly, there was evidence in the proceedings from Ms Crawford as to the nature of dementia. Her evidence was largely unchallenged and her expertise unquestionable as an experienced aged care nurse. In essence, and consistent with what is commonly known, the evidence was that dementia is a degenerative condition which has a number of presentations, including confusion and violence. When and how these features will present is not always predictable, though some triggers can be identified. As a condition, it is progressive not static. How a person with dementia presents on one day may well differ the next. -- 14 of 21 -- 15 [65] Secondly, Ms Crawford also gave evidence to the effect that the DDHHS does not have a great deal of discretion to refuse admission. Provided a person meets the care needs, and provided the DDHHS has capacity to receive them, a person will be admitted subject to various pre-admission and point of admission checks. The evidence as to this lack of discretion was unchallenged and again, consistent with what is commonly known of the aged care sector, it reflects the fact that governments predominately fund aged care facilities in accordance with a long standing responsibility to provide for vulnerable members of the community. [66] These broader facts are important because it would seem that they did not factor prominently (or at all) in the mind of Inspector Matthews. Inspector Matthews willingly conceded that she was 'not a nurse' in deference to Ms Crawford's evidence about the nature of dementia. Inspector Matthews' evidence in cross examination reveals the depths of her lack of understanding.34 [67] The reasons these matters are important is because, in my view, this fundamental lack of understanding underpins her view that a risk of violence from a dementia patient is something that can be managed to the requisite standard by a check list completed before admission. While all information about violent behaviour will be useful in this task, it does not reach its zenith at the moment immediately preceding the actual admission of a patient. If one has even a basic understanding of dementia, it is immediately clear that management of risk is a continual task. [68] Further, given the DDHHS has a responsibility to accept any person deemed to qualify for aged care, a pre-admission 'screening' will not prevent the admission of a patient with a known history of violence. And, as will be seen below, patients of that ilk will likely be identified in the existing procedures. [69] DDHHS has identified five grounds upon which they have based their application for review. In submissions both parties have condensed the first three grounds and dealt with them in one submission. I intend to continue with that approach in these reasons although I will deal with the latter grounds of appeal first. Ambiguity of the IN and adequacy of its particulars [70] Improvement notices are a vital tool for inspectors exercising their powers under the Act. They allow an inspector to e.g. bring an immediate halt to an activity or practice where there is a risk of injury or death identified. It can be necessary at times for improvement notices to be issued in circumstances where there is some degree of urgency to eliminate the source of a risk. For these reasons it is important to ensure that the standard with respect to clarity and particularity of the description of the alleged contravention is not set too high, lest the objects of the Act are defeated.35 [71] That said, it is of equal importance to achieving the objects of the Act that the contravention alleged in an improvement notice should be able to be plainly understood on the face of the notice. This is vital not just to afford natural justice to the recipient but, 34 T 2-18 – T 2-19 35 Work Health and Safety Act 2011 (Qld) s 3(1)(a). -- 15 of 21 -- 16 more importantly, so the recipient of an improvement notice can understand what the contravention is and (if necessary) remedy it. [72] However one might characterise them, in my view the flaws with the IN in this matter are glaring from the first sentence of the purported description of the contravention. [73] To be more precise, the first sentence is clear enough. It alleges a relevant contravention of the failure to provide a safe system of work 'for workers carrying out the assessment of potential residents'. One would immediately and quite reasonably assume from this language that the IN was directed at the risk posed to that class of workers. But thereafter, the description of the alleged contravention descends quite awkwardly into an ambiguous tangle of assertions that fail to point clearly or consistently to a particular mischief. [74] The second sentence identifies the failure to provide 'a set standard of criteria' to the worker carrying out the pre-admission assessment as the failing by DDHHS. From here the description then segues into a description of a broader risk to 'workers and persons' and then goes on to describe the failing of the procedure used by DDHS as (apparently) that the decision to admit a patient (or not) is based on 'an individual workers perception…' at a 'moment in time'. [75] Having objective regard to this language it appears (to me) that the second part of the description of the purported contravention by DDHHS shifts here from a failure to provide 'a set standard of criteria' to the decision to admit is based on 'an individual workers perception'. [76] The description of the contravention in an improvement notice is a central source for understanding what purported contravention needs to be addressed. Further, while I cannot see why a single IN could not be used to address more than one contravention, it would be essential that if there are multiple contraventions then they would be properly delineated within the relevant text. [77] But having regard to the language contained in this IN I am entirely unable to identify (with any certainty) whether the IN purports to address two contraventions or if not, what the precise detail of the alleged single contravention is. Even allowing for the necessary less formal and detailed approach to completing improvement notices that was discussed above, the poor structure and language used here entirely obscures the critical information. [78] I would add by way of illustration in support of this conclusion that there was a clear indication during cross examination of the degree to which Inspector Matthews was herself confused about what she was trying to achieve with IN.36 [79] In the circumstances I consider that the language in this IN is ambiguous to such an extent that it has the effect of rendering the IN void. 36 T 2-8 - T 2-9. -- 16 of 21 -- 17 Reasonable belief, reasonable inquiries, reasonably practicable steps to manage risk [80] There is a difficulty in ascertaining whether an inspector had the requisite reasonable belief to issue an improvement notice where the improvement notice itself does not clearly reveal what contravention was suspected. Arguably an ambiguous or inconsistent description in the improvement notice as to how the Act is being contravened might also invite a conclusion that an inspector incapable of articulating a contravention might also be incapable of reasonable belief of a contravention. [81] However, the DDHHS' arguments in this matter do not explore this proposition and as such I do not intend to either. [82] The clearest alleged contravention of the DDHHS that could be distilled from the IN was the absence of 'a set standard of criteria to ensure consistency of proposed resident assessment'. Why this would have been optimum was never fully explained, and why it might not be optimum was discussed earlier in my consideration at [67]. [83] Further, if one assumes for a moment that a set standard of criteria for resident assessment was some sort of 'gold standard' one wonders why Inspector Matthews elected somewhat arbitrarily to limit her investigation only to matters considered before the day of admission, especially in circumstances where Inspector Matthews was investigating possible contraventions arising from assaults by existing patients. [84] What was evident from Ms Crawford's evidence was that there were established protocols for assessing proposed residents, which included a consistent suite of practices for every assessment both during pre-admission and at the point of admission.37 What was evident was that, notwithstanding these consistent practices, there was not a rigidly prescribed approach to admission because the personal circumstances of each incoming patient will differ. That said, there were certain key procedures such as regard to the Aged Care Assessment Team form ('ACAT') during pre-admission and the preparation of an Interim Care Plan on the day of admission. [85] Ms Crawford confirmed that most commonly a patient will enter via the hospital system because a transition to aged care can often be precipitated by an acute event such as an illness or accident. Alternatively, some patients will seek to enter because of a decision by their family or recommendation by a general practitioner, or both. [86] What was clear from Ms Crawford's evidence was that the facility does not have a wide or general discretion to reject a prospective patient. Provided there is capacity at the facility and there is an ACAT report confirming suitability for aged care, the DDHHS is required to accept a patient at the facility.38 [87] What was also patently clear from Ms Crawford's evidence was that in the pre-admission and admission process there are certain key procedures observed with every admission, namely: 37 T 1-13, ll 45- T1-19; T 1-29 - T 1-30. 38 T 1-29 - T 1-30. -- 17 of 21 -- 18 • A review of the patients ACAT form confirming suitability for permanent residential aged care; • A confirmed relationship with a general practitioner; • A visit with the prospective patient and their family to discuss the proposed transition and any particular care needs; and at the point of admission • Preparation of an Interim Care Plan. [88] These procedures were broadly corroborated by the Director of Nursing, Mr Boyd.39 [89] It was immediately apparent from the evidence of Ms Crawford that there were a number of pre-admission procedures that were not discussed or disclosed during the meeting on 16 August 2019. Yet, despite the ease with which Ms Crawford was able to describe these procedures in her evidence before the Commission, there is no evidence that Inspector Matthews actively elicited any of the details of these procedures during her investigation with Ms Crawford, or at all.40 [90] It was my observation during her evidence before the Commission (where she described the interview with Ms Crawford) that Inspector Matthews appeared to have been aghast at Ms Crawford's gesture that the pre-admission process was 'in her head'.41 That statement it seems was interpreted by Inspector Matthews as a fatal admission as to the inadequacy of risk management. In reality, in my view, it was a simple but inept attempt by Ms Crawford to explain the procedures (with which she was very familiar) and the operation of her professional judgment from years of experience in dealing with dementia patients. [91] In my view Inspector Matthews leapt quickly (and unfairly) to judgment about the matter when she observed Ms Crawford indicate that the pre-admission process was not governed by a checklist but rather, was 'in her head'. It was my impression of her evidence that, from that moment on, Inspector Matthews considered the pre-admission process was inadequate to manage or prevent risk. From that moment Inspector Matthews made no further meaningful inquiries as to what other information and documents Ms Crawford also had regard to in the pre-admission process, or during admission. [92] There is no evidence that Inspector Matthews elicited any information about the use of ACATs or discussions with prospective patient's families, or Interim Care Plans. Inspector Matthew's notes reveal no such inquiries and yet, having observed Ms Crawford's evidence, it would have been a simple enough task for a properly objective investigator to have discovered that information. In my view, Inspector Crawford failed to complete reasonable enquiries and consequently could not have held the requisite reasonable belief of contravention. 39 T 1-55 - T 1-59. 40 T 1-27 - T 1-28; T 2-9 ll 1-9; See also Exhibit 1, Tab 6. Note: While Ms Crawford gives evidence that she told Inspector Matthews about the ACAT forms, Inspector Matthews denies she was privy to the ACAT forms prior to issuing her notice (see T 2-20 - T 2-21) and there is no reference to them in her interview notes. 41 T 2-6 ll 20-25. -- 18 of 21 -- 19 [93] Further, it would seem that Inspector Matthews improperly confined her investigation to the steps taken before a patient was admitted.42 It was never clear why such a fine distinction was imposed on the period between of pre-admission to the express exclusion of the process on admission. If the true intention of Inspector Matthews was to investigate risk to 'workers and people' in the context of alleged assaults by existing patients, then any investigation that failed to consider the entire process (including admission) would have been critically flawed. In my view, the restriction on the scope of her investigation imposed by Inspector Matthews was artificial, unfair, and ultimately impeded her capacity to properly evaluate DDHHS' management of the risk to 'workers and other people' from violence at the hands of patients. [94] The evidence of Ms Crawford about her regard to the ACAT form and the preparation of the Interim Care Plan, a document completed at the time of admission of a patient, confirms a comprehensive examination of the patient's behaviours and needs, and was undertaken with every admission.43 Further, the Interim Care Plan was (ironically) in the form of a 'set standard of criteria'. [95] The ACAT form contained comprehensive information about behaviours exhibited by an incoming patient, including any violent behaviours. While there was some speculative cross examination about 'out of date' ACATs there was no evidence presented by the Regulator that this was a common issue. Further, Mr Boyd gave evidence that there are a number of sources of information relied on to guard against any deficit in the ACAT.44 [96] The Interim Care Plan (prepared on the day of admission) also addressed the current behavioural attributes with respect to e.g. violence and was then kept on the patients chart (next to their bed) to serve as notice to staff. [97] In fairness to Inspector Matthews, it was my impression that Ms Crawford inadvertently contributed (to some extent) to the inadequate inquiry by Inspector Matthews. [98] Contrary to her statement to Inspector Matthews that the pre-admission procedure was 'all in her head' I have no doubt that Ms Crawford was aware at the times she met with Inspector Matthews that the pre-admission process was far more complex. I suspect that Ms Crawford's failure to communicate the salient information at the relevant time was a feature of the fact that, at the time of the (unscheduled) interviews, Ms Crawford was engaged with her duties as a nurse unit manager of a small dementia facility while simultaneously attempting to cooperate in an interview about safety matters which were matters outside her expertise. [99] With due respect to Ms Crawford, even as she gave evidence before the Commission she appeared somewhat unable to grapple with the importance of fully explaining her approach to pre-admission. Ms Crawford impressed me as someone knowledgeable about matters pertaining to her professional calling but was otherwise quite unworldly in matters of safety regulations and law. 42 T 2-6 - T 2-7. 43 T 1-18 (see also Exhibit 1, Tab 8). 44 T 1-63 ll 35-45. -- 19 of 21 -- 20 [100] I note that Mr Boyd's evidence, which was consistent with Ms Crawford's evidence, was much more pointed and robust. I note that he was very clear on the essential enquiries undertaken by the DDHHS for pre-admission. I note that Mr Boyd was absent on the days when Inspector Matthews conducted her investigation and when she (probably ill- advisedly) elected to conduct her investigation by interviewing Ms Crawford instead of Mr Boyd. [101] Notwithstanding Ms Crawford's unintentional contribution to the dearth of relevant information gathered during the investigation, the obligation to make comprehensive inquiry to support a reasonable belief rested squarely with Inspector Matthews. In my view Inspector Matthews wholly failed at this task. On the whole, it seems to me that Inspector Matthews, once appraised of the assaults, has started with a conclusion that there must be a contravention and worked backwards to find one. [102] In all of those circumstances, I consider that Inspector Matthews did not hold a reasonable belief of contravention sufficient to warrant issuing the IN and the internal review decision should be overturned. [103] Given that s 229E of the Act provides powers that contemplate a number of different orders, including orders to send the matter back to the decision maker, it is necessary to extend my consideration beyond technical failings of the IN and the evidence to support reasonable belief of contravention. It is necessary to now consider the evidence to determine the existence of any contravention. DDHHS duty under the Act discharged [104] It seems uncontroversial that the risk identified was the risk of injury arising from an assault by dementia patients. While I have already concluded that Inspector Matthews did not make reasonable inquiries and consequently could not have held the requisite reasonable belief of contravention, I am further satisfied on the evidence that the DDHHS has taken all reasonably practicable steps to manage the risk. [105] It was never entirely clear from her evidence why Inspector Matthews seized on the alleged failing by the DDHHS to apply a 'set standard of criteria' in the pre-admission process with such vigour. There was no evidence before me of any industry Code of Practice or other guideline that might unequivocally compel the DDHHS to adopt a practice of uniform checklists for pre-admission of dementia patients. While I can appreciate that the existence complaints of assaults might have induced Inspector Matthews' line of inquiry into an unmanaged risk, I would equally expect that in the absence of evidence of any clear departure from e.g. a known industry practice, a proper evaluation of all steps taken to manage risk would be conducted. This, in my view, would have included steps taken by the DDHHS at the point of admission and indeed, on an ongoing basis. [106] Further, while Inspector Matthews was apparently acting on complaints about assaults on staff by dementia patients, there was little evidence about these alleged assaults and more importantly, there was no evidence that the alleged assaults arose out of or because of any failures of the pre-admission practices of the DDHHS. -- 20 of 21 -- 21 [107] To suggest that the risk of an assault arose from a failure to identify that risk during a pre-admission process that may have occurred weeks or months before entirely overlooks or misunderstands the fluidity of the condition of dementia, where certain features (including propensity for violence) can emerge without warning. The evaluation and management of risk of violence from a dementia patient is an ongoing task, which was precisely the approach taken by the DDHHS with the updating and reviewing of Care Plans.45 [108] The IN contends a contravention of the duty in that the DDHHS failed to provide and maintain a safe system of work. Yet, on the evidence of Ms Crawford and Mr Boyd, there is plainly a system in place. Further, the procedure for completing the Interim Care Plans and also for updating Care Plans is, in every respect, a more than adequate procedure to evaluate and manage the risk of assault from a dementia patient. [109] In the particular circumstances of this workplace and the practices that Ms Crawford and Mr Boyd have described, I am of the view that the system in place was sufficiently comprehensive that it met the requirements of s 19(3)(c) and s 33 of the Act. Orders [110] I make the following Order: 1. The Internal Review Decision be set aside and substituted for a decision that Improvement Notice I1027934 is void ab initio. 45 T 1-21; see also Exhibit 1, Tab 14. -- 21 of 21 --