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Fair Work Act 2009                                                    






s.158 - Application to vary or revoke a modern award


AM2020/99 – Aged Care Award 2010 – Application by Ellis & Castieau and Others


AM2021/63 – Nurses Award 2020 – Application by  Australian Nursing and Midwifery Federation-Victorian Branch


AM2021/65 – Social, Community, Home Care and Disability Services Industry Award 2010 – Application by Health Services Union




9.30 AM, MONDAY, 9 MAY 2022


Continued from 06/05/2022



THE ASSOCIATE:  The Fair Work Commission is now in session in matters AM 2020/99, AM 2020/163 and AM 2021/65, aged care work value case for hearing.


JUSTICE ROSS:  Good morning, I note there's a change in the appearances and Ms Daberera is appearing for the UWU.  Is the first witness Professor – do you pronounce her name Eagar or – Mr Gibian?




JUSTICE ROSS:  We're dealing with Professor Eager's evidence first?


MR GIBIAN:  Yes, your Honour.


JUSTICE ROSS:  We'll call Professor Eagar and swear her in.


THE ASSOCIATE:  Professor Eager, can you please state your full name and work address?


PROF EAGAR:  Kathleen Margaret Eager, University of Wollongong.


THE ASSOCIATE:  Thank you.

<KATHLEEN MARGARET EAGAR, AFFIRMED                          [9.30 AM]

EXAMINATION-IN-CHIEF BY MR GIBIAN                                    [9.30 AM]




MR GIBIAN:  Yes.  Professor Eager, this is Mark Gibian, can you hear and see me?‑‑‑Yes, I can, thank you.


Excellent.  Could I just ask you to repeat your full name for the record?‑‑‑Kathleen Margaret Eager.

***        KATHLEEN MARGARET EAGAR                                                                                                   XN MR GIBIAN


You're a professor of health services research and director of the Australian Health Services Research Institute at the Faculty of Business and Law at the University of Wollongong?‑‑‑That's correct.


You've made two statements and associated reports for the purpose of these proceedings.  You have copies of those with you, I think?‑‑‑I do.


The first of those is dated 29 March 2021 and the attached statement is the first annexure KE1 to that statement.  You've had an opportunity to review that statement, have you?‑‑‑Yes, I have.


Is it true and correct to the best of your knowledge and recollection and does it represent your opinion?‑‑‑It certainly does.  The only thing I would say in relation to my first statement is that I made it in March '21 which predates the government response to the Royal Commission into Aged Care and predates the government budget decisions announced in the May '21 budget, so I may refer to those in my responses today.


Of course.  Thank you, Professor Eagar.  With that qualification, your Honour, that's the first statement and associated report of Professor Eagar upon which we seek to rely and have part of the evidence.  It's document 113 in the digital court book commencing at page 3274.


Professor Eagar, you also made a supplementary report dated 20 April of 2022 which runs over two pages and some 13 paragraphs.  You also have that with you?‑‑‑I do.


Is it also true and correct to the best of your knowledge and recollection and does it represent your opinion?‑‑‑Yes, it does.


That's the second statement or report of Professor Eagar upon which we seek to rely and wish to have part of the evidence, is document 114.  Yes, 114 in the digital court book commencing at page 3365.


JUSTICE ROSS:  Thank you, Mr Gibian.  Mr Ward.

CROSS-EXAMINATION BY MR WARD                                           [9.33 AM]


MR WARD:  Thank you, your Honour.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


Professor, are you able to see and hear me?‑‑‑Yes, I am, thank you.


Thank you, Professor, good morning.  My name's Nigel Ward, Professor.  I appear in these proceedings for the employer interests.  I'm just going to ask you some questions if I can.  Do you have your first statement in front of you?‑‑‑I do.


I wonder if I could ask you to turn to page 2?‑‑‑Yes.


At the very bottom of page 2 you talk about the aged care quality standards and as that sentence progresses you talk about standard 7 covering human workforces and then you describe what it requires and you say this:


The organisation has a workforce that is sufficient and is skilled and qualified to provide safe, respectful and quality care services.


My understanding is you then go on to develop what that means.  Am I right in saying that that is one of the matters the Aged Care Commission review in its audits?‑‑‑The Aged Care Quality and Safety Commission?


Yes?‑‑‑Yes, it is.


It is and am I right that if you failed that you could be subject to sanction?‑‑‑You could be subject to sanction but that doesn't necessarily mean that you would close.  You would just need to improve your staffing levels.


The Commission could basically give you what I might described as a kind of an improvement notice, that you have to improve something.  That could be one step.  If you failed with that they could ultimately sanction you to the point of closure?‑‑‑In theory, yes.


In theory?‑‑‑We don't have a long history of closures.  We have a long history of sanctions.


But that is one of the things that they would be most likely reviewing if they did an audit?‑‑‑Yes.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


Can I take you then a little bit further on in the statement under the heading 3, 'The Change Policy Context of Residential Aged Care'.  In the first paragraph you draw a distinction between facilities reflecting a person's home and what you describe as to move away from the institutional model of care.  I just wanted to understand what you mean by the institutional model of care.  Is that a consideration of when these facilities looked far more like hospitals and hospital wards, or are you meaning something different?‑‑‑I'm meaning in history that an aged care home would look like a hospital and the nurses in it would wear uniforms and it was very much an institutional setting.  And there was a policy attempt to move away from that institutional focus towards a more domestic look and feel, and also a more social model of care.


In that institutional model – if you can't answer, please, I understand but in that institutional model, was it more likely the case that residents were in sort of large multi-person wards rather than single rooms?‑‑‑No, there was always a variety but there certainly has been a trend in the last 20 years towards smaller homes and more single bedrooms, each with ensuites.  So it depends on the age of the facility.


When you say there was always a variety, in your knowledge what was the largest room that residents would have been - their beds would have been kept in?  Was it two to a room, four to a room?‑‑‑I don't have expert knowledge but I think it's about four beds to a room.


Okay?‑‑‑But we're talking a long time ago too.


And so help me out, how long ago are we talking?‑‑‑I was a student in a nursing home, 40-odd years ago and we had four bedrooms.


So we're talking that sort of period?‑‑‑Of course some of those facilities stayed open for a very long period.


But the trend of that was up to 40 years ago?‑‑‑Yes, absolutely.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


If I could take you then to page 4, at the top of page 4 you talk about the changes in the distinction between low care and high care, and as I understand your position, your position is that as the Commonwealth took over regulation and as the technical distinction between high care and low care diminished you see that as the driving force for the reduction in registered nurses in aged care.  Is that a reasonable summary?‑‑‑No, it's a position, it's a statement of fact that up until that period nursing homes were run and were regulated by States and Territories and hostels by the Commonwealth and hostels were for low-care needs, and nursing homes were for high-care needs, and when the two sectors were brought together in order to improve continuity that a person who went from low need to high need didn't have to change.  The upshot of that was that we ended up with a staffing profile that looked like it was for low care, but actually we had a large number and an increasing number over time of high-care residents as well.


And what was the period that that started to emerge from the ‑ ‑ ‑?‑‑‑In 1997 that started with the Aged Aare Act, but that happened progressively over then the next decade.


And do you have any - is it within your area of expertise to know whether or not what level personal care workers had certificate IIIs back in 1997?‑‑‑No, I don't know.


Can I just ask a point of clarification, you used the phrase high care and low care in that first paragraph on page 4.  Just a point of clarification, can you describe to me what the distinction was at that stage between low and high?‑‑‑The low and high ‑ ‑ ‑


JUSTICE ROSS:  Sorry, Professor, at what stage?


MR WARD:  1997.




THE WITNESS:  The distinction between low and high was really what happened was the language that was used when the Commonwealth took over the old nursing home sector, nursing homes became high care and hostels became low care but they were still at that point separate facilities and then subsequently a home or a hostel could actually continue to have residents who changed from one type to another.


MR WARD:  So, Professor, it wasn't a description of acuity as such?‑‑‑It was a reasonable description of not acuity but dependency, high-care people needed more care, low-care people needed less care.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


Less care, okay.  And if I can then ask this, on page 5 you introduce the ACFI classifications of nil, low, medium and high.  Are they classifications of care needs as well?‑‑‑Yes, they are.  There are three domains in the ACFI, but I guess I should premise my comments by saying the ACFI is fundamentally flawed and for that reason the government is ending ACFI, and on 1 October this year it will be replaced by a new model, but just speaking about the ACFI it reflects the three care areas where residents need care because of dependencies and that's activities of daily living, behaviour and complex health care, and, of course, the fourth domain of need, but it's not a dependency, is the need for social engagement and participation.


So, would one have to be careful in confusing the ACFI classifications with what in 1997 would've been described as low and high care?‑‑‑Yes, absolutely.


Okay.  Appreciate that that is disappearing, but I assume that in the ACFI world the more high-level people you have as residents the better your funding?‑‑‑Absolutely, funding is linked to low, medium and high on those three domains, and you'll see in that table 1 I have put the daily amounts, and so a person who is high, high, high on all those three domains will be funded at that high rate.


With this ‑ ‑ ‑?‑‑‑What we've seen over years now is an increasing number of residents funded as high, high, high, and a very small number of residents funded as low on any domain.


To your knowledge, is there any gaming of the system to try and record people as high to get better funding?‑‑‑I wouldn't use the word 'gaming' but I would certainly use the word 'funding optimisation', which is what the industry likes to use, and we know this because when we did our own study, which was the resource utilisation and classification study, we assessed several thousand residents and we had - which was done by assessors using an assessment tool we designed, and we trained the assessors, and for each of those residents we also had their ACFI scores and their ACFI classification.


And your outcome wasn't quite as optimised as the other one?‑‑‑The AN-ACC - what is now the AN-ACC classification is much better at differentiating between residents.  The ACFI is very much driven by factors other than just the dependency needs of residents.


Can I take you back to page 4 if I could, and if I can, I'd like to start with the third paragraph, and the third paragraph reads in these terms:


In 2021 old style institutional nurse led models no longer exist.


That's the institutional model you and I talked about a little earlier, is it?‑‑‑That's right.



***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


And personal care and other aged care workers are no longer required to work under the direct 24 hour supervision of a registered nurse.


I'm just going to pause there.  I just want to try and clarify that you and I had the same understanding of some of the words there.  My understanding of 'direct supervision' in that context would mean that the registered nurse would be observing all of the work activity minute to minute, hour to hour of the personal care worker.  Is that what you meant by 'direct 24 hour supervision'?‑‑‑No, I actually mean the word 'supervision', not 'observation'.


Well, could you help with me what you mean by 'supervision'?‑‑‑Yes, so, the - if I go right back to 30 years ago, a registered nurse would be saying to a personal care - would be actually directing the personal care worker's activities and supervising them to ensure that they were done correctly.  So, for example, if they were walking a resident, they would be observing but at times they would also be supervising and coaching.


And the distinction ‑ ‑ ‑?‑‑‑More importantly, they would actually be on the premises, which is no longer the case.


We'll come on to that.  So, if I use the example of showering a resident, you're saying that in the institutional days the registered nurse would be observing them showering them, or mentoring them in how to shower them, and today the personal care worker would do the showering independently of the registered nurse, is that the gist of what you're saying?‑‑‑Yes, and it certainly would vary that the registered nurse would ensure that each personal care worker was competent in that task, they would have supervised them, and they would keep an eye on them from time to time.


Later on in that statement you say in the next sentence:


Indeed it is now common practice for homes to have registered nurses only on duty for limited hours.




What do you mean by 'limited'?‑‑‑Well, if I go back to our RUC study, the average time for a registered nurse per resident was 36 minutes per day, and if you think ‑ ‑ ‑

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


So ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑that there are 1440 minutes in a day, 36 minutes is a very limited availability of a registered nurse.


So you're not suggesting for instance that - I'm not sure if there's any evidence in this case of - there's evidence that a registered nurse is not necessarily on shift at night, I'm not sure about the day, but is your issue there about whether or not there is a registered nurse on shift or on call, or is it about something else?‑‑‑I suppose the availability of the registered nurse during a 24‑hour shift, or of 24‑hour day, and it was also about what registered nurses are doing.  One of the problems in the sector at the moment is that a disproportionate amount of registered nurse time is devoted to paperwork in an office, with very little time actually available to be on the floor.


You're not suggesting in saying that that the registered nurse is delegating work for a personal care worker beyond the competence of the personal care worker?‑‑‑I'm saying that in many cases the registered nurse is not delegating work to the personal care worker at all.  The registered nurse is doing their work, which is around ACFI meeting accreditation requirements and other office office‑type functions, and the personal care workers are actually making day‑to‑day decisions about the care of residents, in many cases.


But are you saying that they're making those decisions within their competence?‑‑‑You would certainly hope so, but you can't say that in all cases obviously.


Are you familiar with the Certificate III that the care workers now do?‑‑‑Yes, but I certainly would not claim any expertise in Certificate III level qualifications.


No, it would be unfair for me to ask you questions on that; that would be unfair.  But you would accept that the registered nurse isn't delegating clinical work to personal care workers?‑‑‑I would accept that that's the case, but I would also submit that there are often clinical requirements – residents often have clinical requirements when there is no registered nurse on duty or present.


If that became urgent, my understanding is that that would most likely involve 000 and an ambulance to a hospital?‑‑‑If it was acute.  For example, residents need medications 24 hours a day; they are done by the personal care workers without any registered nurse even on the premises for a large part of that day.  It depends what you consider to be a clinical task.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


I understand - - -?‑‑‑I would consider things like medication administration, changing wound dressings, those sorts of tasks.  There are also residents who have technical requirements.  They might be diabetic, for example; they might have an in‑dwelling catheter.  Those tasks are 24/7 tasks.


If we can just make sure we have some – I'm just going to clarify some of those things you've raised.  Your understanding is the same as mine that personal care workers can't do Schedule 8 medications, can't administer Schedule 8?‑‑‑Yes.


And is your understanding the same as mine that, subject to training and assessment of competency, personal care workers can do Schedule 4 medication administration?‑‑‑Yes.


Yes?‑‑‑Personal care workers have a set of training and there are legal requirements, and homes are required to ensure that their staff meet those legal requirements.


But in terms of that discussion we've just had on medications, you would have traditionally contemplated Schedule 4 as a clinical activity, would you?‑‑‑Yes, I don't think it's as simple as the schedule.  I would come and point you to one fact, and that is that if I go back to the last clinical indicators for the end of last year, nearly 40 per cent of residents are on nine or more medications.  Polypharmacy, when 40 per cent of residents are on nine or more medications, actually puts an onus on whoever is administering the medications to ensure that all of those medications are taken at the right time in the right dose.


Yes, and - - -?‑‑‑Not that – it's not that any one drug is a particular schedule; I don't think that's the issue.


My understanding, Professor, is that the personal care worker who's qualified to do that - how that's done will be described on the care plan.  Is that your understanding?‑‑‑Yes.  But there are also medications that are prescribed PRN, or as required.


Yes?‑‑‑And I cannot verify whether that is always as required as determined by a registered nurse or by others.


Can I put it to you that to date the evidence is that the registered nurse has to authorise PRNs?‑‑‑Yes.


Is that your understanding?‑‑‑That was what I would expect.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


The issue of catheters, there is some evidence in this case so far that personal care workers detach the full catheter bag, will record the level of fluid in it, and then replace a new catheter bag.  Is that what you meant by personal care workers doing work with - - -?‑‑‑Yes.


Yes, okay.  In terms of wound dressing, you'd agree with me that the actual examination of the wound and the decision how to deal with the wound is the role of the registered nurse?‑‑‑Or the GP, yes.


Sorry, my apologies, or the GP, yes.  Can I just take you back to that paragraph?  You then at the very end of the paragraph say this:  'In their absence' – which I understand  to be the registered nurse?‑‑‑Mm‑hm.


'Aged care workers are now responsible for running the home on a 24/7 basis?'---Mm-hm.


I'm not trying to be cute with you, but I just want to understand what you mean by 'running.'  Obviously there's still a facility manager – a general manager or a CO at the facility who's accountable for the running of the facility.  You're not discounting them, are you?‑‑‑No, I'm not, but on an hour‑to‑hour basis for 16 hours a day, or for eight hours a day, depending on the home, the personal care workers will be more or less the only people left on the floor.


So you're saying that if the evidence in this case demonstrated that a registered nurse wasn't present, that's what you mean by that, is it?‑‑‑For example, the decision in the middle of the night to call an ambulance for a resident will often be made by a personal care worker, because there will be nobody else there to make that decision.


That's the context that you're talking about with the word, 'running', is it?‑‑‑Absolutely.  So from my perspective, that will be a – for example, one of the major issues is clinical deterioration in a resident - a care worker may well make a decision late at night that they will call the family, they will call an ambulance, they will – whatever the situation is – in response to the needs of the resident.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


I take it then that in circumstances where the personal care worker contacts the registered nurse to be told what to do, the personal care worker wouldn't be running the facility in that sense?‑‑‑It depends what you mean by 'running', but certainly from my perspective, at 6 o'clock in the morning when they're starting to, you know, get residents up, get on with their day, they are the people actually making the decisions on practical issues on the floor on an hour‑by‑hour basis, but certainly not in terms of – I don't use the word, 'running', in the sense of they're not the manager of the facility, but they are making the day‑to‑day, you know, decisions about the order in which things are done, for example, at the beginning of the morning shift.


By way of example, I'm not going to shower Nigel first, I'm going to shower Julian or somebody else first for some reason?‑‑‑Yes.  Nigel doesn't look well today, and let's leave Nigel there for review later in the morning.


But you'd agree with me that the registered nurse can't absolve themselves of their responsibility under their scope of practice; they're still responsible in the context of their scope of practice, aren't they?‑‑‑Absolutely they are, but I think it's important to put this into context.  We're talking that care needs to be delivered by a multidisciplinary team that includes a GP, registered nurses, allied health and personal care workers.  The personal care workers are doing the majority.  About 70 per cent of the staffing is personal care workers, but the needs of residents are met when everyone is making a contribution, and everyone is working within their scope of practice.


Could I ask you to go to page 6?  This is purely my ignorance, Professor, so bear with me.  I don't quite understand what the relevance of the four charts are.  It doesn't seem to be completely clear from your narrative.  What's the purpose of showing the four charts?‑‑‑Yes, I've described before the ACFI.


Yes?‑‑‑And I said that dependency had increased and if you look at the very first chart you'll see activities of daily living and the average payment rate under the ACFI used on that domain of activities of daily living going back over the years and you - - -


They're the three elements of ACFI?‑‑‑That's right and so you've got activities of daily living, behaviour and complex health care, and they map exactly to the table on page – table 1, and you'll see that monthly ACFI payments have been going up which is indicative of increasing rates of dependency during that period.


That's okay.  Can I ask you to go to the CHC table?‑‑‑M'mm.


As I read that, that suggests that - - -


JUSTICE ROSS:  Which page?  Which page, Mr Ward?


MR WARD:  My apologies, your Honour.  Page 6.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD




MR WARD:  The Commission will see figure 1.


JUSTICE ROSS:  You said you were referring to a table, the statement?


MR WARD:  My apologies, the chart.


JUSTICE ROSS:  Thank you.


MR WARD:  Yes.


JUSTICE ROSS:  So you're on the charts in figure 1 on page 7?


MR WARD:  Yes.


JUSTICE ROSS:  All right.


MR WARD:  I should have listened more in my economics class.  The chart, if I could take you to the chart.


As I read that, around from January 27 there was a fall in complex healthcare assessments and that fall – reasonably stark until January 2020 and then there's a dramatic increase?‑‑‑M'mm.


Can you explain to me why that's the case?‑‑‑Yes, it was because the rules about how to score that domain, complex healthcare, were changed.


It's not that there was something unusual about residents.  It was about the way the system actually operated?‑‑‑That's right.  The Commonwealth's view was that people were scoring that domain incorrectly and the complex healthcare domain was reviewed and the rules were changed.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


In changing the rules people were scored as being much more complex?‑‑‑It's about the evidence that's required to justify a particular score.  So the ACFI is scored and the home needs to have evidence for each of the domains and the bar was raised in what constituted evidence on some of those items.


Sorry, just help me out, what do you mean by the bar was raised?‑‑‑Well, instead of just having a professional opinion you might need an independent – I mean, I don't have the details on that of those items with me but instead of an assessor being able to make a personal judgment they may need a third party, they may need a clinical review, they may need some other sort of verification.


But if I could then take you to page 7 in table 2?‑‑‑Yes.


I think I did drop this question in before I'll ask it again.  The fourth line talks about personal care attendant?‑‑‑Yes.


I might just pause there.  That personal care attendant, is that a regulatory phrase because it's not personal care work or is there some reason why that's - - -?‑‑‑This table is from the source that I have cited below, which is the report published in 2017 and they used that term in that report.  Since I submitted my paper there has actually been a more recent aged care census report published and it uses the term aged care – a personal care worker.  So it's in the matter of history that this particular report goes back to workforce as designated – the language designated in 2016.


I see but - - -


JUSTICE ROSS:  Sorry, Mr Ward, just before you do, it might be of assistance to us if there is a more recent census if that material could be updated.  Is that going to create more difficulty for any party?  No?


MR GIBIAN:  I don't believe so, your Honour.  Your Honour may recall that Professor Charlesworth referred to that matter as well.




MR GIBIAN:  And had some comments, I'll put it neutrally at this stage but some comments to make in relation to that census document which we might wish to be also before the Commission if that census document is itself – we don't have any difficulty with the document itself.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


JUSTICE ROSS:  Well, how do we get the up-to-date census data is what my question is going to?


MR GIBIAN:  We can arrange for that, your Honour, if that's the convenient - - -


JUSTICE ROSS:  If you can do that in consultation with Mr Ward so there's no issue.


MR WARD:  There won't be an issue, your Honour.


JUSTICE ROSS:  Thank you.


MR McKENNA:  Your Honour, I hate to interrupt but the census data itself is in the ANMF tender bundle and we'll identify precisely where in due course.


JUSTICE ROSS:  Yes, thanks.


MR WARD:  Sorry, Professor.  I think I asked you this before and you weren't able to answer but I'll – the table 2 talks about the change in the numbers of personal care attendants between 2003 and 2016.  I think you said before you're not aware of any data which sets out the change in the number of personal care attendants who have a certificate 3, are you?‑‑‑No, I'm not.


Are you aware if there's any such data out there?‑‑‑I don't believe there is.


Is it your general understanding – tell me if I'm wrong but is it your general understanding that in 2003 most personal care attendants wouldn't have had a certificate 3?‑‑‑I'm not qualified to comment.


No, that's fine.  Then as you continue your discussion after the table you're talking about your RUC studies.  If you turn the page you then use the phrase, I'm just trying to understand what it means, you use this phrase at the end of the paragraph at the top of page 8:


Domestic, cleaning and other staff involved in providing hotel and accommodation services were excluded from this study.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


I wonder, I take it hotel and accommodation services would include a cleaner?‑‑‑Yes, food and lodging.


Food and lodging.  Would they exclude a gardener?‑‑‑Yes, food and lodging.  So if you go back to the three, and I was really aligning my comments with the three funding streams in aged care and that's the basic – what's covered in the basic daily fee, what's covered in care and what's covered in accommodation.


Is hotel and accommodation services your term or is it a term that's used somewhere else?‑‑‑It's a generally used term in human services, so I would refer to – I would use that same term if I was referring to a hospital or to an aged care facility.  It's the services you would typically have staff deliver in a hotel.  So cleaning, domestic type work, food preparation.


Those things, okay.  Then in table 3 you go on to talk about the time spent, as I understand it, delivering care.  Is that a reasonable way of describing it?‑‑‑Yes.


Good, good.  Can I just focus on – I'd like to just focus on, if I could, the personal care assistant.  It says here there's 144 minutes per – by personal care assistants.  My understanding is that each day a resident receives 144 minutes of care from a personal care assistant.  Is that the correct way to read that?‑‑‑Yes and I used the term personal care assistant because it had been used in the previous census but you should read that term to be personal care worker now.


I had read it that way, Professor, but thank you.  I just want to be clear as to what the 144 minutes might include.  It would include activities like showering?‑‑‑Yes.




Potentially repositioning a resident who's in bed?‑‑‑Yes but also helping with meals in the dining room.


Yes?‑‑‑Social engagement with a resident.


Yes?‑‑‑All time with a resident.


It would include what you and I talked about earlier today which might be the medications, changing the catheter placement?‑‑‑Yes.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


Does the 144 minutes include me completing my progress notes on the resident?‑‑‑Yes.


If I was making observations about bowel movements or urine input – sorry, urine output, it would include me reporting those?‑‑‑That's right.


And if I was delivering Schedule 4 medications and signing off that Nigel was actually taking his medication, it would include that as well?‑‑‑That's right.  Direct care per day means all direct care with the resident or on their behalf including documenting their care and their care needs.


Am I right in saying that the same applies for the registered nurse?‑‑‑Absolutely.


So I just want to be clear on this if I can, so we've had evidence in these proceedings that a care worker might observe a bruise and might ring the registered nurse for instructions.  That would include the time the registered nurse is taking on that call?‑‑‑That's right.


We've had also some evidence that they might photograph the bruise and send that to the nurse and then the nurse might contact them.  That would be the nurse's time as well?‑‑‑Absolutely.  All care with or on behalf of the resident, including their documentation.


And in relation to the nurse, if the nurse is involved in the admissions process, that is, meeting the resident for the first time, meeting their family, would that be in their 36 minutes as well?‑‑‑Yes, although we actually documented in the RUC study that in the initial weeks that someone is in care all staff, registered nurses, personal care workers, et cetera, spend much more than the average, and for that reason we recommended in the RUC study in the design of the AN-ACC that there be a one-off adjustment payment, we called it, to recognise that there are additional care needs when someone first enters care where the registered nurse and the personal care workers are getting to know, not just the resident, but also their family sorting out any problems that the person might have on entry, for example, pain or organising medical appointments, all those sorts of things.  And it was quite a significantly higher rate of care in the - well, time in the first few weeks.


So those first couple of weeks sort of explode up the level of care that the resident is receiving and then it levels out?‑‑‑It tapers off over time, yes.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


Tapers off over time, okay?‑‑‑Sufficient to justify an additional payment which we call the adjustment payment, and we recommended that the Commonwealth have very strict rules around the purpose of that payment, that it be used exactly for that purpose to plan the - to meet the resident, to get to know their needs, to meet the family, to identify what's going to work for them, to develop a care plan.


Can I take you then to page 10 if I can?  You identify in page 10 some data against tables 5, 6, 7, 8 and 9.  Just in relation to 5, 6 and 7 I'm just trying to understand the scope of the question.  The question here is, 'Percentage needing help from a carer'?‑‑‑Mm-hm.


And if I can just use one as an example, if we take table 5, eating ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑am I right in saying that the notion of help might be as simple as Nigel needs the fork placed in his hand all the way through to somebody has to feed Nigel?  Is it a broad scope?‑‑‑It's a very broad scope, and indeed in the actual study itself we actually classified dependency into seven levels.  I've just grouped them up here into either independent or needing help from a carer.


So you had seven levels of help that might be required, but this data consolidates all seven into one outcome?‑‑‑That's right.  And that ranged from supervision and coaxing through to two-person physical assist.


Okay.  So, all of that is put into this basket that we've got on this page?‑‑‑That's right.


That's fine.  And is that the same for all of the categories, that they're all a consolidation?‑‑‑Yes, they are.  It was a very detailed study of each resident.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


And if I could then ask you, you might not be able to answer this question, but if I could ask you to go to the top of page 11, you introduce the neuropsychiatric inventory and you talk in the top of page 11 about elements of table 10 which describe certain behaviours; agitation, irritability, anxiety and the like.  So you might not be able to answer this, so bear with me.  Are you confident that the certificate III program is sufficient for a personal care worker to be competent in dealing with these behaviours?‑‑‑I think there are two separate issues.  This table I think is a very accurate reflection of the behavioural problems of people in residential aged care, and for each of those problems I would expect that a GP and/or a registered nurse or others may well decide whether there's a clinical intervention required, and that that would be documented in a care plan, but I would also expect that personal care workers would have the skills and the competencies, and in fact be held accountable and responsible for determining whether a resident was independent on some of those issues, whether they needed monitoring or whether they need direct supervision, and a term I often use is that the personal care workers are the eyes and the ears of the home.  They need to be observing these types of behaviours, they need to - it's not just a one-way where they passively get told by registered nurses what their job is, they are also the eyes and the ears of the home reporting back and having conversations with the registered nurse on what they have observed, and they are really very critical, and we should be seeing that that's a very critical role to be actually the eyes and the ears of the home.


So if you just take agitation as an example, my understanding is this, if I was the personal care worker and I observed David to be more agitated than not today, I would do one of two things, if I thought it warranted it I might ring the registered nurse straightaway and say, 'I think you need to come and look at David'?‑‑‑Yes.


Alternatively, it might not warrant that, and I might simply write in my progress notes, 'David was more agitated than usual today', and that's that observation process that you're talking about?‑‑‑That's right.  And I think there is a very important judgment that personal care workers are expected to make about whether the level of agitation today is any different to what they observed yesterday.


And do you have any reason to believe that that's not a competency they develop in the certificate III or certificate IV program?‑‑‑I'm not prepared to comment on whether they learn it in the certificate course, but certainly a good personal care worker is someone who can make that judgment, and I would presume that it's a mix of certificate level training and expertise acquired on the job, and I don't think ‑ ‑ ‑


Yes, but ‑ ‑ ‑ ‑ ‑ ‑we should under-estimate the role of skill and experience on the job.


Do you have any opinion as to how long it takes to gain the necessary experience?‑‑‑No, I suspect that it varies by person depending on their age, their own level of maturity, their own life experiences, as well as the skills and competencies that they have acquired in various certificate level and other courses that they may have done.


And by level of maturity, you mean the extent to which they are experienced being exposed to people as opposed to not being exposed to people; is that what you mean?‑‑‑That's right.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


Yes?‑‑‑Yes, I'm presuming here that, you know, somebody, who for them, this is their very first job and they've never worked in the workplace would have a lot more difficulty assessing whether a person's level of agitation today is different to what it was yesterday than someone who's done other things before they've come into aged care, and has got used to observing people in a workplace.


Thank you.  That's very useful.  Could I just take you to page 12?  I won't be much longer, Professor.  One, two, three, four.  In the fifth paragraph you talk about dementia and you say:


The exact number of people with dementia is not known but estimates range from 50 to 80 per cent.


Do you see that?‑‑‑Yes, I do.


I'm right, aren't I, that there are different forms of dementia?‑‑‑There definitely are.


You're referring to all of them when you say that?‑‑‑I guess I would – yes, I am referring to both.  You know, Alzheimer's and Lewy body and all the other sorts of dementias, but I would also make a point that dementia is a very generic term and it's a medical term and I think it's often over-used to describe anyone who has cognitive or behaviour issues, and so I would take you back to the previous table we were just talking about which is the screening table.


Yes?‑‑‑When you look at those behaviours in table 10 of my evidence on page 11, that I think gives you a better profile of people in residential aged care than the medical diagnosis per se.


Are you concerned that the phrase, 'dementia', might get thrown around when it has a medical meaning but it might not actually apply?‑‑‑What I am concerned about is that I think the rate of mental health problems in older people in aged care is very much under recognised and under-diagnosed.


If you look at table 10 depression seems to be high on the list?‑‑‑Yes.


You're talking there about being clinically depressed rather than just being unhappy?‑‑‑Yes.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


Yes and if you can't answer this that's fine but my understanding is that for some residents they'll have sort of early onset with dementia and then it progressively gets worse and there will be different phases.  Is that how all dementias work?‑‑‑Yes, it is but if I come back to that previous conversation if you look at the first item which is anxiety and – well, agitation.


Yes?‑‑‑If I go to anxiety, a lot of older people with anxiety will experience memory loss because of the anxiety and if they're not properly medically diagnosed they could be incorrectly diagnosed as dementia because dementia is very difficult to diagnose and we know across the country that access to psycho-geriatricians, specialist geriatricians with skill in dementia diagnosis, et cetera, varies and that's why whenever you read a report about aged care and, indeed, about population health in general the rates for dementia always vary quite considerably because it's a very inexact science.


The next paragraph down which is one, two, three, four, five six.  Paragraph 6 on page 12, you say:


A related issue is the requirement to be sensitive and empathic.


I will say this as respectfully as I can, because I think you're a trained psychologist as well so I don't - - -?‑‑‑Yes, I am.


- - - want to get in trouble about this.  Sensitivity and empathy are they personality traits that some people have and some people don't?‑‑‑I don't think it's as black and white as that at all.  I mean, I'm really referring to this is a very significant cohort, many of whom are reaching end of life and I would reiterate other information in that paragraph.  There are 180,000 beds in the residential aged care centre.  Every year 60,000 residents die and another 60,000 take their place. A one in three turnover resulting in 240,000 residents moving through that sector each year.  And what that means is that every care worker, every single person, every domestic, needs to be sensitive to the fact that many residents are approaching their own end of life, that many residents will have made friends with other residents who die, sometimes sharing a bedroom with them, that families will be grieving.  These are really challenging – this is a really challenging workplace in terms of supporting people in terms of their psychosocial mental health.


Are you saying there that people who display sensitivity and empathy are likely to be more capable at their job?‑‑‑Absolutely.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


Just a couple more if I can and I'll finish.  You talk further down in that paragraph that the aged care worker will often be the first point of contact for the family.  I take it that's because the aged care worker is most likely to be in situ when the family visit?‑‑‑That's right but I also think that it's not just in situ, they will actually be with the resident.  They are the people that the residents know best as well.  So if I visit my mum, I will mention to the personal care worker more likely than the nurse because the personal care worker is the person I've had most contact with.


That's the person more often than not you're going to say, 'How has mum been'?‑‑‑That's right and so the person to go back to the whole role, you can have what you think the official role is of the personal care worker and the registered nurse but if I arrive and I'm concerned about my mum, I'm more than likely to relay that to the personal care worker, both because they're the person I'm more likely to see and also because I'm more likely to know their name.  And I'll point you to again the census data, the resident – the RN workforce is a very, you know, very small numbers of permanent fulltime registered nurses.  The majority of RNs are very part-time and they represent a very small and decreasing sector of the workforce.


Later on in that paragraph you say:


Aged care workers are frequently required to contact family members to inform them of the death of a resident.


Are you actually saying that some facilities require the personal care worker to do that, are you?‑‑‑Yes.


Which ones?‑‑‑It's not the aged care home that requires that, it's that families, part of the care plan will be if my relative is starting to become unwell, families on the care plan will actually say, 'I wish to be notified immediately'.


That's okay but your - - -?‑‑‑The client will comply with their care plan or their advanced care directive to the best of their knowledge.


If I've passed away you're saying that it's the personal care worker who's going to ring the family to say that, not the registered nurse or somebody else?‑‑‑I don't think there's one rule about how that works.  I think it varies considerably from home to home and by time of the day.  I have no doubt that if you die at midday that the most senior person in the home will be the person who does that but I have no doubt as well that we have a very common situation of someone dying in the middle of the night, and the personal care worker being the only person who is available to notify the family if it's their wish to be notified immediately.


Which home is that, that that happens in?‑‑‑I can't cite the names of homes.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


That's fine.  Then just lastly if I can take you to page 13, statement you say:


Aged care work has historically be under-valued.


And you identify that:


This is arising because it's traditionally seen as low-value women's work.


I take it that's not your area of expertise, is it?‑‑‑Gender equity?


Yes?‑‑‑No.  I mean, I guess I'd go further and to say I think the aged care sector is a perfect case study of where ageism and sexism walk hand in hand.  I have no doubt that we wouldn't be having a hearing talking about these sorts of rates if we were talking about middle aged men delivering services to middle aged client men.


You think that the minimum rates in these awards are where they are because it is, as you describe, they're women's work?‑‑‑It's women's work but also we don't value older people very much in this country, very sadly, and I do think there is a mixture of ageism and sexism and in general of course we already know that, the evidence is there.  The caring industries have always been relatively low paid compared to other sorts of industries.


When you say other sorts of industries, which industries are you referring to?


JUSTICE ROSS:  Mr Ward, how far are you planning on taking this, because  - - -


MR WARD:  I was - - -


JUSTICE ROSS:  - - - (indistinct).


MR WARD:  I wasn't going to.  I'll just ask one question, your Honour, and I'll get out of it, if I can.  My understanding is that that view about women's work, am I right in saying that's described by the academics, and I think Professor Smith has described it as 'the institutional sociological approach', is that your understanding?‑‑‑I would leave that to other academic experts.  It's not mine.  My expertise is in care work.

***        KATHLEEN MARGARET EAGAR                                                                                                 XXN MR WARD


That's fine.  Professor, thank you very much.  No further questions?‑‑‑Sorry, Ross J, I can't hear you.


JUSTICE ROSS:  Sorry, Professor Eagar.  Can I take you back to page 4 and the comments you made in response to a question?‑‑‑Yes.


You mentioned, or my note had that nearly 40 per cent of residents have nine or more medications, and you were talking about this polypharmacy concept?‑‑‑Yes.


Where would I find the source for that proposition?‑‑‑The source for that is the National Quality Indicator Program, and the exact figure is 38.3 per cent and it's for the quarter, October to December 2021, and the Department of Health or the Australian Institute of Health and Welfare both provide that information on a public website and in a quarterly report.


Thank you.  I might get you to – or I'll ask Mr Gibian to obtain that document, and he can provide it to the Commission and all the parties and it can go in the court book?‑‑‑Thank you.


Thank you, Professor Eagar.  Mr Ward, anything arising?


MR WARD:  No, your Honour.


JUSTICE ROSS:  Mr Gibian, any re-examination?


MR GIBIAN:  Yes, there are a couple of matters.

RE-EXAMINATION BY MR GIBIAN                                               [10.29 AM]


MR GIBIAN:  Professor Eagar, you can hear me again?‑‑‑I can, thank you.

***        KATHLEEN MARGARET EAGAR                                                                                                RXN MR GIBIAN


At the start of the cross-examination you were asked some questions about the Aged Care Quality Standards, including Standard 7, and about the sanctions that can be imposed in the event that a provider is assessed as not meeting one or other of the standards, and in answer to those questions indicated that in theory could lead to closure, but generally there are some sanctions short of closure.  What are the other sanctions short of closure that are common?‑‑‑The most severe sanctions are that a home is not allowed to admit new residents for a period, say six months, until they meet the standards.  So the standards can be anything from 'Please improve', to 'We are going to deny you the ability to admit new residents be paid for them until such time as you've improved the quality of the care here', through to an actual closure, but in practice closure is extremely – I can't even think of one.


You were then asked about the move away from the institutional model of care that occurred – I think you described the time period as progressively after 1997, and you referred, in answer to a question, to a change to a 'domestic look and feel', and 'a social model of care.'  Are you able to describe what you meant by 'a social model of care' in that context?‑‑‑What was intended, and is not actually what happened, the intention of a social model of care is that staff – it wouldn't feel to a resident that they were in an institution.  The idea was that it would feel more like their home.  But I guess I would argue that the pendulum over the last decade has swung too far away from care that is clinically competent in favour of care that is domestic scale, if you like.  We actually need to do both.  We need to actually meet the social and psychological care needs of residents at the same time as their clinical needs are better met, and in the context of the current population, we can expect to see the care dependency needs of residents increasing going into the future.  There is no likelihood that the care needs of residents will decrease, and every likelihood that they will increase over the next few years.


MR McKENNA:  Your Honour, we appear to have lost O'Neill C, at least at our end.  I wouldn't otherwise interrupt.


JUSTICE ROSS:  Bear with me for a moment.  I think she's re‑booting her computer.  Here we are.  Thank you.  Continue?‑‑‑Yes, so I guess what I want to say is that I think what we've done in the last decade is that the pendulum swung too far towards the social model and we have inadequate attention to meeting the clinical care needs of residents.  I did mention the government response to the Royal Commission into Aged Care and the budget.  The pleasing point I would make about that is that the government made a very clear commitment to improve the quality and safety of aged care, and one of the means to do that is to improve RN staffing levels as well as personal care staffing levels.  Ironically, one of the likely outcomes of improving RN work numbers will be to actually increase personal care worker roles and responsibilities as well.  It won't be that more RNs substitute for personal care workers.  The goal is very much now to improve quality and safety, and when I look at those same national clinical indicators that Ross J asked me about, some of those figures are just too high – 22 per cent of residents being physically restrained, for example.  If we have better diagnostic and prostification(?) going on in residential aged care, then there should be better care planning around prevention, falls prevention, for example - there's a very good one - less use of physical restraints.  That will actually increase the responsibilities on care workers to implement much more sophisticated care delivery than is currently the case.

***        KATHLEEN MARGARET EAGAR                                                                                                RXN MR GIBIAN


MR GIBIAN:  In that answer you expressed the view that if there is an increase in registered nurse numbers in residential aged care facilities, it would increase the work of personal care workers, and part of that may have been, the answer that you just gave – was there any other reason why you say that would occur?‑‑‑Because then - the focus will be actually on improving quality and safety, so you know, the red mark on a heel does not become a pressure injury, and we would get to a point where there are no more pressure injuries in residential aged care.  That is not the case at the moment, and it's not because the personal care workers are not doing their job; it's the that system isn't geared up enough for prevention, and the Royal Commission very much recognised that, and I'm happy to say the government did in its response to the Royal Commission report as well.


You were then asked some questions about funding arrangements, including the ACFI process, and in answer to one of those questions you referred to the ACFI process as being fundamentally flawed?‑‑‑Yes.


Are you able to briefly say why you have that view?‑‑‑Yes.  A couple of reasons.  One is that it's not sensitive to the changing needs of residents; more importantly because it creates – it has created a perception of perverse incentives, for example, if you go to the complex health care domain, if a person has a pressure injury, then it's worth more payment under the ACFI.  And we were very concerned about this, because there's a perception, and indeed there have been anecdotes that a home's worked really hard with a pressure injury and managed the pressure injury and it's disappeared, and on reassessment the person no longer has the pressure injury and so the payment rate to the home has gone down.  I led the team that designed the new model, the AN‑ACC, the Australian National Aged Care Classification, and we were particularly focused on incentives and ensuring that there were no perverse incentives, so there are no perverse incentives for pressure injuries or for falls or for any of the - pain for example, and going back to an earlier question by Mr Ward, one of the questions was about pain, the rules on that were really very tightened but we don't want to create - we did not want to create a perverse incentive where a home got paid more if a resident was in pain with pressure injuries and having falls.


Yes, I understand.  In answer to that question you also referred to the ACFI process not being sensitive to changing needs.  What did you mean by that?‑‑‑I referred of residents are now all high, high, high.


That is, there's nowhere else for them to go if indeed ‑ ‑ ‑?‑‑‑There's nowhere else to go.

***        KATHLEEN MARGARET EAGAR                                                                                                RXN MR GIBIAN


‑ ‑ ‑there's a change in the - I understand?‑‑‑And when I look at the group who are all - one-third of all residents are high, high, high, when I look at that group they are using our assessment tools quite diverse.  The other thing I would say about that is that the evidence on ACFI is the payment rates are much higher in metropolitan - in capital cities than in metro areas than they are in rural and regional centres, and the reason for that is because people in metropolitan areas have got better access to Allied Health and medical specialists who can write the sorts of reports that get them into higher paying classes.  When we did our AN-ACC study we demonstrated that the care needs of people in regional and remote areas are no different than in metropolitan areas, but that has not been reflected in the payment rates for at least the last decade.  Metropolitan overall is paid more because people using the ACFI are assessed as higher need in metropolitan areas.  The evidence does not substantiate that.


Is the proposed new funding model to come in later this year, how is it intended to address those issues?‑‑‑The first thing to say is that the legislation is not yet through, but we're all presuming it will be through straight after the election.  The assessment is not done by the care home.  The ACFI is currently assessed by the home.  The AN-ACC will be an independent assessment and in areas, like pressure areas, the AN-ACC assessment assesses the person's risk of a pressure injury, not whether they actually have a pressure injury.  And there is a loading for a pressure area risk but not for actually developing an injury.


Just a ‑ ‑ ‑?‑‑‑Sorry.


I'm sorry?‑‑‑I should just say, the other element in the AN-ACC is the introduction of an adjustment payment, which has never existed before, so a person will be assessed before the adjustment period.  Their home will receive additional funding for that adjustment period, and the home then has that additional money to meet the care needs and to attempt to improve the person's function and health status during that period.  So a person might come into a home not being able to walk, and if they can mobilise that person and get them moving, and not being able to walk goes to a higher paying class than somebody who can mobilise independently.  If they're able to rehabilitate that person, they will actually stay on the higher rate.  They won't actually go to the lower rate.  And on that I would just point out, in terms of dependency, an issue of Mr Ward's questions before, 35 per cent of all residents in aged care now can't get out of bed.  Only 15 per cent of residents are independently mobile, so you've got 15 per cent of residents independently mobile, 50 per cent who need the support of another person, not just an aid, 50 per cent need assistance with mobility, and 35 per cent are bed bound.


I think you did answer in that answer the next question I was going to ask, but just so that we can be - the adjustment payment to which you referred for a new resident is an element of the proposed new funding arrangements rather than an existing payment?‑‑‑That's right.

***        KATHLEEN MARGARET EAGAR                                                                                                RXN MR GIBIAN


Lastly, you were asked some questions about what you've said about end of life care in - I'm sorry, I'll have to find it - in your statement and about qualities of sensitivity and empathy.  What types of skills were you talking about that care workers would need to exercise in order to appropriately deal with end of life care issues, both for the residents and family?‑‑‑Yes.  One is impeccable powers of observation.  Clinical deterioration is really - requires good judgment.  Families can see it, they'll say, 'I was here last Sunday and I can see Mum's gone downhill since last week'.  But identifying deterioration requires you to know the resident quite well.  The second - and so the common issues I'd be looking for at end of life are well-documented, and in fact we assess those all the time, and they are areas like pain, fatigue, a decreasing in appetite, unexplained weight loss, nausea, bowel problems, constipation, et cetera.  They are - in the day-to-day care of a resident the personal care worker will often be the first person who notices clinical deterioration because it will present as a decline in function.  And so I do want a resident to have care such that if they're having a shower and they wince, that the care worker says, 'Are you in pain?' and that just doesn't go through unchecked.  Once we actually have that in place for every resident and the care worker feels empowered to take that to the next level, we will start to systematically improve care.


Can I just have a moment, your Honour?


Thank you Professor Eagar.  That's the re-examination.


JUSTICE ROSS:  Thank you for your evidence, Professor Eagar.  You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [10.44 AM]


JUSTICE ROSS:  We propose to take a short break until 11 am and then we'll deal with Mr Bonner.  Mr Gibian, there's one matter I want you to attend to.  My chambers advised me that the HSU has not yet filed its submission in a Word document despite numerous requests to the organisation.  Can you clarify if they have done that already, and, if not, attend to it.


MR GIBIAN:  Of course, your Honour.


JUSTICE ROSS:  Thank you.  We'll adjourn till 11.  Sorry, to inconvenience you, Mr Bonner, we won't be too much longer.

SHORT ADJOURNMENT                                                                   [10.45 AM]

***        KATHLEEN MARGARET EAGAR                                                                                                RXN MR GIBIAN

RESUMED                                                                                             [11.01 AM]


THE ASSOCIATE:  The Commission is now resumed.


JUSTICE ROSS:  We'll call Mr Bonner and have him sworn.


THE ASSOCIATE:  Mr Bonner, can you please state your full name and work address?


MR BONNER:  Yes, Robert Bonner, 191 Torrens Road, Ridleyton, South Australia 5008.


THE ASSOCIATE:  Thank you.

<ROBERT BONNER, AFFIRMED                                                    [11.01 AM]

EXAMINATION-IN-CHIEF BY MR MCKENNA                           [11.01 AM]




MR McKENNA:  Mr Bonner, could I ask you to please restate your full name?‑‑‑Yes, Robert Bonner.


You are the Director Operations and Strategy of the South Australian branch of the ANMF?‑‑‑Yes, indeed.


Could you please repeat the address of the South Australian branch?‑‑‑Yes, 191 Torrens Road, Ridleyton, South Australia 5008.


Thank you, Mr Bonner, and you have prepared a witness statement for the purposes of these proceedings?‑‑‑Yes, I did.


Do you have a copy of that with you today?‑‑‑I do.


Can I ask you to confirm that it is a statement dated 29 October 2021?  I think you'll find the date hopefully on page 24?‑‑‑Yes, yes, indeed.


Whilst you're there, it's a statement running to 136 paragraphs?‑‑‑Yes, that's correct.

***        ROBERT BONNER                                                                                                                   XN MR MCKENNA


In your statement you refer to five annexures?‑‑‑I do.


You also refer to a number of documents variously identified as ANMF and then numbered?‑‑‑That's correct.


Mr Bonner, have you had a chance to read your witness statement recently?‑‑‑Yes, I have.


Are there any changes, corrections or clarifications that you wish to make to it?‑‑‑No.  The only thing that I would say in relation to the statement is that at paragraph 89 I was somewhat optimistically hoping that the new certificate 3 and 4 qualifications there were under development last year when I made this statement, would have been endorsed by the end of last year and that has yet to finalise.


I'm just looking at paragraph 89?‑‑‑The last sentence of that paragraph 89, says that the October 22 meeting of the Australian Industries and Skills Commission would consider those new qualifications.  The committee did but it referred it to a further bureaucratic committee from which it is yet to emerge.


Subject to that clarification, are the contents of your witness statement true and correct?‑‑‑Yes, they are.


Are the five annexures that you refer to in your statement, as attached to your statement, are they true copies of the documents that you refer to?‑‑‑They are.


Similarly the documents, the ANMF documents, they are true copies of the documents referred to in the statements?‑‑‑Yes, correct.


If the Full Bench pleases, that statement can be found at document 137 of the electronic court book page 9304.


Mr Bonner, I understand you were provided one further document from Mr White this morning.  Do you have access to that?‑‑‑I do.


Further, I understand that you've been unwell, if at any point during the cross-examination you need a break could you please bring that to the attention of the Full Bench?‑‑‑Yes.

***        ROBERT BONNER                                                                                                                   XN MR MCKENNA


The final matter is, hopefully you can see Mr Ward in one of the screens – the squares on the screen in front of you.  Mr Ward will now have some questions for you?‑‑‑Thank you.

CROSS-EXAMINATION BY MR WARD                                         [11.05 AM]


MR WARD:  Mr Bonner, can you hear me okay?‑‑‑I can, thank you.


Thank you, Mr Bonner.  Mr Bonner, my name's Nigel Ward.  I appear in these proceedings for the employer interests.  Am I right that you've never actually worked in aged care itself?‑‑‑No, that's correct.


You've been, I say this respectfully, a professional union official for over 30 years?‑‑‑Yes, getting close to 43 now.


Is one of your responsibilities, you're the certification education guru of the union?  Is that a way of describing you?‑‑‑I've been involved in the vocational education and training sector, the development of training packages, the leadership of industry advisory structures for the best part of 20 years.


You have particular knowledge of the VET sector?‑‑‑I do and, in particular, as it operates in the health and community services sectors which have been my principal scope.


I wonder if I could jump to – do you have your statement in front of you?‑‑‑I do.


I wonder if I could jump you all the way to paragraph 86?‑‑‑Yes.


In paragraph 86 you make some observations about the work of personal care assistants.  Do you see that?‑‑‑I do.


I take it that those views have been formed by your observations of the industry over the years, rather than working in it?‑‑‑Absolutely, yes, from submissions over the years and information obtained in my normal employment.


You say in the statement:

***        ROBERT BONNER                                                                                                                        XXN MR WARD


PCAs have roles to carry out non-complex components of personal care for residents that are within the scope of practice of a regulated health professional, RN or EN, and that with the province of these nurses in the aged care sector 20 years ago –


Do you see that paragraph there?‑‑‑I do.


By 20 years ago, you literally mean sort of 2000?‑‑‑I mean that, at least at that period, that the work that PCAs do was in many cases undertaken by registered or enrolled nurses, and before that time.


I wonder if we could just talk for a minute about what that work was.  Are you referring there to administering Schedule 4 medications as an example?‑‑‑That's one of the functions that is commonly undertaken by personal care assistants in some jurisdictions.


And you're saying 20 years ago that would have been the exclusive domain of the registered nurse or the EN?‑‑‑Yes.


Could you give me another example?‑‑‑Some of the wound care that is found in the facilities, so some of the pressure area care that is emerging into open wounds, is undertaken by PCAs; some of the observation work of people who are working in end of life care provision would be work that would have been undertaken actively by enrolled or registered nurses at that time; and some of the work in the dementia units I think would have been more significantly led and undertaken by registered and enrolled nurses when they were in greater numbers.


Can we just start with wound care, if we can?  My understanding is that any cares still have to be reviewed by the registered nurse.  Is that your understanding?‑‑‑That's correct.


And my understanding is that the initial response to that wound is normally undertaken by the registered nurse, but that a personal care worker might re‑dress the wound under direction from the registered nurse later, is that your understanding?‑‑‑That would be the normal case.


I take it that that wouldn't involve complex wounds?‑‑‑Not generally speaking.  I mean we don't - what I'm saying to you in relation to wound care is that in the delegation of ongoing care, that would have been done by an enrolled nurse primarily 20 or more years ago, and now it's a personal care assistant who may well be doing the follow up dressing change, as you suggest.

***        ROBERT BONNER                                                                                                                        XXN MR WARD


So 20 years ago the follow up dressing might have been done by an EN?‑‑‑Correct.


And these days it's done by a PCW?‑‑‑That's more commonly the case now.


Would that activity be within the competency of their Certificate III?‑‑‑The Certificate III doesn't set absolute boundaries in terms of the competency of particular people.  What it does do is set out a range of knowledge information skills, tasks that can be undertaken, and then alludes to the policies, procedures and framework established by employers in particular locations in terms of getting people permission, if you like, or scope to undertake particular duties.  So I think that the difficulty in answering your question is that different employers have different sets of rules about what the policy or procedure is within that organisation - - -


Let me ask it - - -?‑‑‑ - - - (indistinct) function.


Let me ask it a different way, Mr Bonner.  It might be easier.  Is it possible that I could come out of my Certificate III and I know nothing about wound care?‑‑‑No, you would certainly know about pressure area indications and when to report those to the registered nurse, for example, to initiate that process of investigation, assessment and care planning.


The second example you gave was observation work in palliative care.  Is what you're saying there that 20 years ago the personal care worker would have had no involvement with somebody who was at end of life?‑‑‑No, certainly not.  I mean, what I'm referring to there is that the amount of care that is now delegated to a care worker when residents are in active end of life has significantly changed by the numbers of staff available and the skills mix of staff available to provide that care.  So more of that work will fall on personal care assistants by necessity as much as by planning.


When you say, 'the amount of care', is that the personal care worker will spend more time observing that person and reporting back to the RN or EN?‑‑‑Yes, that would be the case.


It's not that they're administering morphiates or anything like that?‑‑‑Sorry, I didn't get that question.

***        ROBERT BONNER                                                                                                                        XXN MR WARD


It's not that they're administering any particular drugs, like morphine or something like that, to the resident?‑‑‑You would hope not.  But certainly we know of cases where personal care assistants have been asked to change patches of medications on residents in aged care facilities that may or may not contain medications under control.


My understanding is though that you have to be an enrolled nurse to replace an opiate patch, isn't that right?‑‑‑The situation varies by state and territory law.  So medication administration is governed by state and territory law.  In some states like Queensland and Victoria, I understand, the rules are far more stringent on what PCAs may or may not do, and in some cases is complete prohibition, whereas in states like South Australia, you have to be a fit and proper person, so it's a much more open field in terms of what the law says personal care assistants can do, as opposed to an enrolled nurse.  It's a bit open.


In those states, the registered nurse would be deciding that the opiate patch needs changing and it's possible the personal care attendant could physically change it?‑‑‑That's correct.


And then you said lastly that there's been an 'increased role for PCAs in dementia?'---Mm.


Any particular activity in dementia that there's been an increased role?‑‑‑Look, I think that the sheer volume of the rate of dementia, cognitive impairment that's experienced in aged care facilities, the number of specialist units and facilities that have grown up over the years, and at the same time the diminution of registered nurses and enrolled nurses working with those residents, and residents generally, means that personal care assistants have had to develop skills in terms of behaviour management and control, how to exercise restraint of behaviours when they grow out of hand, and how to manage their own situation in those units as well.  So there's been a huge change in terms of treatment of people with dementia over that period.


You'd agree with me that those are skills that they obtain in their Certificate III?‑‑‑Yes, there are beginning level skills that are provided to all workers who are completing a Certificate III in Individual Support, but there are also skills clusters that are available post that Cert III for people who are working in specialist units, and indeed Certificate IV and even university graduate qualifications that are open to care workers such as that offered by the University of Tasmania, for example, but not in - - -

***        ROBERT BONNER                                                                                                                        XXN MR WARD


This is people who might want to specialise further and do further education in dementia care or palliative care?‑‑‑Indeed.  With the sheer volume of people in the sector with dementia care means that there is at least on‑the‑job training support, guidance issued, if not formal qualifications and further training as people develop capability in that space.


Could I take you to paragraph 89?  At paragraph 89 you're talking about some changes to the Certificate III, and in the second sentence you say this:


The interim adjustments to the Certificate III qualification were made in early 2020 through significant limits being placed on elective units that could be offered within the aged care specialisation.




Earlier today I sent the Certificate III in Individual Support, CHC33015, which I'm assuming you're familiar with that document?‑‑‑Yes, I am.


Can I just take you to page 4 of 8, and at the top of page 4 of 8:


It is my understanding if you want to do the individual support certificate in ageing there are now four mandatory extra units.


?‑‑‑That's correct.


They're on the top of that page?‑‑‑Yes, I (indistinct).


Are you aware why – given your evidence talks about these, are you aware why those extra units were mandated?‑‑‑Yes, the committee reviewed, partly as a result of the Royal Commission's urging, the nature of the compulsory electives for work for people with an individual support qualification in aged care specifically and wanted to include the empowerment role to people, specifically of course for people with dementia.  The obvious one in terms of meeting personal support needs and complying with infection control policies and procedures which was beginning to emerge as an issue in terms of COVID at that time.


I take it that the dementia one was seen as a necessary element of the certificate 3 given the profile of residents at aged care facilities?‑‑‑The dementia unit was always a requirement as a compulsory elective, if I can use that kind of language, even in the pre-data (indistinct) and was maintained in this one.

***        ROBERT BONNER                                                                                                                        XXN MR WARD


Can I just ask this, on page 7 of 8, about three-quarters of the way down there's a reference to HLTHPS006, 'Assist clients with medication'?‑‑‑Yes.


There's some evidence in these proceedings that if you have that you can administer Schedule 4 medications from Webster packs or blister packs.  Is there any reason why that wasn't made mandatory?‑‑‑Yes, there was significant debate about whether or not that unit should be made mandatory both in this initial that we've been making to the qualifications and also in the qualifications that were recommended at the end of last year for ongoing application in the industry.  The view of the majority of members of the committee and of industry submissions was that assisting with medication should remain elective on the basis that some States and Territories prohibited the practice in terms of the legislative system and, therefore, including a unit that couldn't actually be applied in particular jurisdictions because of the State or Territory law was creating a problem in terms of national regulation.  That was the primary reason why it was left as an elective in the end.  There's no doubt that it was being used actively in some areas and the other key reason was about the surrounding knowledge for effective administrative and mitigation.  A number of us had concerns about the degree to which that was not provided in the rest of the unit or the rest of the qualification if that unit was to be inserted as a compulsory unit within the overall course.


Am I correct that the Assist In Medication unit in the Certificate 4 overcomes those short-comings?‑‑‑There was seen to be a requirement for that in the cert 4 at the time.  That's not a view that I personally shared but, nevertheless, it was one that the majority maintained.  The cert 4 in this qualification was not adjusted by the committee at the time when the certificate 3 was.


Okay?‑‑‑I hope I made it clear, Mr Ward, so that was a pre-existing decision of a previous committee and was not one that we were seeking to overturn in these interim adjustments for the qualification.  Our interim action was designed to meet the recommendations of the Royal Commission in terms of the robustness of the qualification and its uniformity and consistency of application across the country which was seen as being very variable both in content and in quality, and that's what we were seeking to deal with in these initial round of changes.


I just jump ahead because you've touched on that, at paragraph 96 you say:


Some courses are delivered exclusively online over the shortest possible duration, often as little as six weeks.  While the increasing percentage of trained workers is welcome, the fact that some receive their education with minimal, if any, hands-on experience is worrying.

***        ROBERT BONNER                                                                                                                        XXN MR WARD


You talk there about robustness.  If you compared a six-week online program to a four-year apprenticeship, you start to be concerned about the robustness.  Is that what you mean by trying to create greater uniformity?  You're actually trying to have a – I mean, a more uniform program rather than allowing an RTO to diminish the robustness of the program?‑‑‑No, the program that we were designing was to deal with what the common competency standards for a worker should look like, arising from the qualification.  The duration of the qualification and the mode of delivery are educational decisions that are outside of the control of the industry reference committee and, indeed, the regulator of the training packages and falls within the remit of ASQA as the delivery regulator in the sector.  All that we could do was to, despite urgings by come, to maintain the existing compulsory requirement for 120 hours of on-the-job assessment and delivery that was included in the qualification that we inherited and has been maintained throughout.


Your observations in paragraph 96 are about the quality of delivery of the program, not the program itself?‑‑‑Yes, indeed, although there was some evidence that some of those same providers would pick the elective units that were easiest to deliver and not necessarily have regard to the relevance of those units to work in aged care and the context in which the qualification is going to be worked.  That's why we reduced the number of electives that could be used for an aged care qualification down to the number that I set out in the pages that are I think five and six.


Yes?‑‑‑The group D electives.


Your concern could be described this way, you held a concern that because of the way some people were delivering the program the individual might turn up for work with a certificate 3 but might be less competent than somebody else with the same certificate 3 but done differently?‑‑‑I think that there were those issues.  The quality of the graduates.


Yes?‑‑‑There was also the scope of knowledge of the graduates that was particularly our concern.


That's fine.  I will just very briefly take you to paragraph 91.  In 91 you say:


Routine resident-specific activities requiring a limited range of skill and knowledge may be delegated to the PCA.

***        ROBERT BONNER                                                                                                                        XXN MR WARD


Just for clarity, are you referring there to things like showering and toileting?  What are you referring to there?‑‑‑Again it's contextual.  So it's about what the registered nurse believes is appropriate to delegate to a care worker in their particular circumstances but, yes, activities of daily living would typically be part of that.


I take it that the registered nurse would need to be confident that the PCA is competent to do what's being done?‑‑‑That's the great hope.  The difficulty with that expectation is the knowledge of the registered nurse in the circumstance about the PCAs in every instance.  So does the registered nurse, in delegating through the care plan, know every persona care assistant who's going to be performing the work under the care plan.  And that's where it becomes far more questionable.  Excuse me, I'm sorry.


That's all right.  Mr Bonner, if you take your wound dressing example, you've agreed with me that the personal care worker wouldn't be doing the diagnosis on the wound and wouldn't be doing the first dressing but would simply be replacing a dressing.  Is that an example of the sort of delegation you're talking about?‑‑‑Yes, again, one would hope that that is the case, but, yes, the expectation is a registered nurse would be doing an initial assessment and then delegating ongoing care.


And I think we've had evidence of personal care workers observing bruising and referring that to the registered nurse to decide what should occur.  Would that be another example?‑‑‑Absolutely.


Just jump you to, if I could, just briefly at the beginning of paragraph 96 you identified a 66 per cent of PCAs have certificate III, and I think you take this from the census information?‑‑‑Yes.


We've had quite a few different numbers in this case.  Is that the most reliable number, Mr Bonner?‑‑‑Look, the numbers do vary, as you say, according to report, but they sit around that sort of high 60 - 70 per cent mark depending upon which one you use.


And is it your understanding that employers are more likely now to require a Cert III?‑‑‑That's the broad proposition, yes.


Just a moment, if I can.  Thank you, Mr Bonner, no further questions.


JUSTICE ROSS:  Any re-examination?

***        ROBERT BONNER                                                                                                                        XXN MR WARD


MR McKENNA:  No, re-examination, your Honour.  Might Mr Bonner be excused?


JUSTICE ROSS:  Certainly.  Thank you for your evidence, Mr Bonner.  I hope you make a full recovery shortly?‑‑‑Thank you.  Thank you very much.

<THE WITNESS WITHDREW                                                          [11.29 AM]


JUSTICE ROSS:  I think that concludes the evidence involving the Full Bench for today, and we will all see you back at, on my note, on 2 pm on Wednesday.  And in the meantime, Commissioner O'Neill will be taking the evidence.  Is that where we're up to?


MR McKENNA:  Your Honour, before the Full Bench adjourns, just as a matter of tidying up the evidence ‑ ‑ ‑




MR McKENNA:  ‑ ‑ ‑there a couple of statements, a couple of witnesses that we understand are not required by Mr Ward.




MR McKENNA:  And I just formally identify those statements now.


JUSTICE ROSS:  Certainly.


MR McKENNA:  There are two statements by a Ms Kristen Wischer.




MR McKENNA:  The first of those is the award history statement dated 14 September 2021, it's the document 132 page 7835 of the court book.  There is a second statement of Ms Kristen Wischer dated 29 October 2021.  It is document 133 at page 9159.  With respect to that statement an email has been sent to your Honour's chambers on 2 May identifying three amendments, which I can read into transcript now if that's convenient, or we can simply rely on the email and an amended statement will be filed.

***        ROBERT BONNER                                                                                                                        XXN MR WARD


JUSTICE ROSS:  Yes.  No, that's fine, just file the amended statement.


MR McKENNA:  Only one point of clarification with that, Ms Wischer has identified an error in one of her annexures, which is not her evidence, so that won't be changed, but if I could just indicate that in annexure KW1 at page 35 in the table for Victoria the percentage difference for an RN level 1 top is should be 18 per cent instead of one per cent.


We also understand that Mr Kevin Crank is not required for cross-examination.  His statement is at document 135, page 9260 of the electronic court book.  There are no changes to that statement or any of the three annexures.


Your Honour, one further matter, I stood up briefly during the evidence of Professor Eagar to identify that the 2020 census was in the ANMF's material.  That can be found at ANMF13.


JUSTICE ROSS:  That's in the bundle?


MR McKENNA:  It's in the bundle, document 273, page 16157.  Ms Butler, in her evidence at paragraph 60 and following, makes some comments about the reliability of that, and the Full Bench has also heard from Professor Charlesworth's concerns about the reliability of that document, but that is at ANMF13.


JUSTICE ROSS:  Thank you.


MR McKENNA:  If the Full Bench pleases.


MR WARD:  Your Honour, if I could just raise a matter before the Bench, please.




MR WARD:  We've had an indication from the two unions about cross-examination of our witnesses.  I should just raise two matters, it would appear that both unions want to have a pretty good go at the same witnesses, and they are effectively in the same interests, and I'm concerned about that.  It certainly might raise all sorts of questions of objection from me if one union tries to cover the same territory.


JUSTICE ROSS:  No.  Well, as I think I indicated earlier on, and the approach we adopted in the penalty rate case, parties in the same interest will not be permitted to cross-examine a witness in the same area and field, so the witness is not going to be subject to cross-examination twice, so counsel for the respective union interests will need to divide that up between themselves.


MR WARD:  Thank you, your Honour.  And in regards to that it does create a logistical challenge because at the moment, based on the assessments from both unions, they require 13 hours of cross-examination in a day.


JUSTICE ROSS:  Well, I'll ask - did you want to say something, Mr McKenna?


MR McKENNA:  I'm sorry, your Honour?


JUSTICE ROSS:  Did you want to say something?  You looked like you were moving forwards, but maybe not.  Look, I'm content to leave the time estimates to - I'm assuming it'll mainly be the HSU and ANMF.


MR McKENNA:  We haven't heard from the UWU, your Honour.


JUSTICE ROSS:  No.  Well, you'll need to look at your estimates and look at the schedule and see if there's sufficient time.  And bear in mind, unless either of you wants to take issue with my observation that you shouldn't be permitted to cross-examine about the same issue, or submit a witness to cross-examination on the same issue twice.


MR McKENNA:  Your Honour, just on that point, I guess two things, the estimates that have been provided by, I think, both the HSU and the ANMF do not reflect that there will be overlap and that, of course, the parties will not be cross-examining on the same topics.  But just to confirm your Honour's observations, I take it that there'll be no prohibition on both unions cross-examining the same witness, your ‑ ‑ ‑


JUSTICE ROSS:  No, that's true.


MR McKENNA:  ‑ ‑ ‑concern is just about the topic and overlap?


JUSTICE ROSS:  It is.  That's exactly right, yes.  No, there's obviously no concern with both of you cross-examining a witness.  I just don't want a witness exposed to cross-examination on the same subject area twice.  That's the concern.  And as you've indicated that you'll divide up how you cross-examine, and so that issue shouldn't arise.


What do you think about Mr Ward's observation that, using your estimates, there are 13 hours of cross-examination, but that's not the - at the moment we have the time on the Wednesday afternoon and the Thursday?


MR McKENNA:  Your Honour, I understand that there is at the moment a day and a-half allocated to the employer witnesses.


JUSTICE ROSS:  Yes, that's right.


MR McKENNA:  No doubt I'll speak with Mr Gibian, and we will come back and provide some clarification on the estimates.


JUSTICE ROSS:  Nothing further?


MR GIBIAN:  Sorry, your Honour, could I raise two matters, firstly, that I will have a discussion with Mr McKenna.  I'm not sure I was privy to the estimates that the ANMF have provided in time terms, but we'll obviously have to try and work that out as best we can.


Secondly, there was just one of the statements that I perhaps should identify at this point in time of Leigh Svenson, which is document 119 in the digital court book, commencing at page 3807 falls into the category of Full Bench witnesses as it were.  She was not required for cross-examination and I just identify that we seek to rely upon her statement and annexures.


JUSTICE ROSS:  Certainly.  Look, perhaps to reduce any anxiety level any party might have about you've put in a statement and you haven't identified it, I'm proposing in those background documents to set out the material which we understand has been put in identified.  And you'll have an opportunity to check that just to make sure.  And we'll also in that make reference to the documents that the witnesses - well, that some of the witnesses were taken to in cross-examination so that we're all clear about what's before us.  All right.  Nothing further from the Full Bench?  We'll leave you with Commissioner O'Neill.  Thank you.


Now, we have Mr Mills, I believe, is the next witness, is that right?


MR GIBIAN:  Can I just indicate, sorry to interrupt, Mr Hartley, there's been some discussions between the parties, Mr Mills' personal circumstances have changed and we're proposing to deal with him later in the day, hopefully after the conclusion of the ANMF witnesses.  I think that has been communicated to all of the parties but perhaps not the Commission, so he'll be dealt with later in the day.




MR HARTLEY:  Commissioner.


COMMISSIONER O'NEILL:  We have – sorry, you go.


MR HARTLEY:  I think Wendy Knight is the next witness.  We're having I think some technical difficulty on this end.  She seems to be faced with a screen saying, 'Someone will admit you shortly', but I can't see her in the waiting room.  So I will make some inquiries and hopefully we'll get her in shortly.


MR WARD:  Sorry, Commissioner, I don't have Ms Knight on my list at all.


COMMISSIONER O'NEILL:  No, nor do I.  I have Mr Voogt, then Ms Power, Ms Hoffman and Ms McLean through - - -


MR HARTLEY:  Ms Knight, you'll recall Commissioner, is the witness that was due for Friday but we didn't fit her in on account of the fact that she had to start a shift.


MR WARD:  Commissioner - - -




MR WARD:  Sorry.  If we're going to do Ms Knight I'll need a short adjournment.  I'm sorry, I'll just need a short adjournment.


COMMISSIONER O'NEILL:  How long do you need, Mr Ward?


MR WARD:  If you give me 10 minutes, Commissioner.  I just need to refresh my memory of the - - -




MR WARD:  - - - material, that's all.


COMMISSIONER O'NEILL:  We'll adjourn until 11.50.


MR WARD:  Thank you, Commissioner.

SHORT ADJOURNMENT                                                                   [11.39 AM]

RESUMED                                                                                             [11.50 AM]




MR GIBIAN:  I think Mr Hartley is - - -


COMMISSIONER O'NEILL:  Sorry.  Mr Hartley.  You're on mute.


MR HARTLEY:  I apologise.  Ms Knights is present and is ready to be sworn.


COMMISSIONER O'NEILL:  Ms Knights, can you hear me all right?




COMMISSIONER O'NEILL:  I'm Commissioner O'Neill and my associate is just going to have you take the affirmation.




THE ASSOCIATE:  Ms Knights, can you please say your full name and work address?


MS KNIGHTS:  Wendy Pauline Knights and 27 to 29 Princess Street, Mildura, Victoria 3500.


THE ASSOCIATE:  Thank you.

<WENDY PAULINE KNIGHTS, AFFIRMED                                 [11.51 AM]


EXAMINATION-IN-CHIEF BY MR HARTLEY                             [11.51 AM]


MR HARTLEY:  Ms Knights, it's Jim Hartley speaking.  Can you see and hear me?‑‑‑Yes, Jim, yes.


Great.  Could you just say your name one more time, please?‑‑‑Yes, Wendy Pauline Knights.


Your work address?‑‑‑Is 27 to 29 Princess Street, Mildura.


You are an enrolled nurse?‑‑‑Yes, I am.


You made a statement in this proceeding dated 29 October 2021?‑‑‑Yes, I did.


Do you have a copy of that to hand, Ms Knights?‑‑‑I certainly do, right here.


Great.  Could you just scan through the first 16 or so pages and confirm – don't read through it but you'll see on page 16 that it's a statement of 99 paragraphs?‑‑‑Yes.


Following that there are eight pages of annexures?‑‑‑Yes.


Could you look at paragraph 4 of that statement, please?‑‑‑Yes.


Where it says on the second line that you were, 'in charge of several facilities overnight', should that read, 'in charge of a facility on the PM shift'?‑‑‑Yes, that's correct.


Can you look at paragraph 31?‑‑‑Yes.


In the second line you see, 'RN', it says, 'RN at the start and end of my shift.'  Should that say, 'start or end of my shift'?‑‑‑That's right.


Could you look at paragraph 58, please?‑‑‑Yes.

***        WENDY PAULINE KNIGHTS                                                                                                     XN MR HARTLEY


In the second line part-way through it says, 'next of kind', should that say, 'next of kin'?‑‑‑That's right.


Finally, in paragraph 62 the second line from the end of the paragraph, you see the word, 'Endone', partway through and then it says, 'you have to notify the doctor as well', should that say, 'you have to notify families as well'?‑‑‑That's right.


Thank you, Ms Knights.  With those corrections, is your statement true and correct to the best of your knowledge and recollection?‑‑‑Yes.


Great.  You should see on screen Mr Ward to whom I am grateful for his flexibility.  He's going to ask you some questions now?‑‑‑Okay, thank you.

CROSS-EXAMINATION BY MR WARD                                         [11.53 AM]


MR WARD:  Ms Knights, can you hear me okay?‑‑‑I certainly can.


Ms Knights, my name is Nigel Ward.  I appear in these proceedings for the employer interests and I'm going to ask you some questions.  Do you have your statement in front of you?‑‑‑Yes, I do.


I'm just going to ask you to go to paragraph 11 if I can.  You say in paragraph 11 you've got a certificate 3, a certificate 4 and your diploma.  I might have missed this, the certificate 4, that's in community service or is that in ageing?‑‑‑It's in community health and services.  I went back to do certificate 3 in aged care modules, I only had to do the aged care modules to complete that certificate.


The certificate 4.  So you had some recognition of prior learning for the certificate 4?‑‑‑Yes, yes.


Then you went on to do your enrolled nursing diploma?‑‑‑That's right.


Yes, can I take you to paragraph 14.  I think in paragraph 14 you're talking about your decision to become an EN and you say this:


I felt I needed to have more knowledge and that aged care would need increasingly skilled people.  Personal carers at cert 3 are given broad training but it isn't sufficient in depth to identify certain care needs like wounds, dementia and continence.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


Do you see that there?‑‑‑Yes, yes.


Can you be more specific about what you thought was insufficient in the training?‑‑‑The identification.  You need to be able to identify when there's changes in a care for a resident for it to be upgraded, for their care to be upgraded.  So dementia is a really big issue and it's becoming more and more prominent and to be able to understand dementia itself, the level of dementia, there's different levels.  So the severity, understanding sundowners of an evening and how it can change the resident's behaviours.  How not to try and – what can you call it – prove you're right and they're wrong because it just doesn't matter.


Sorry, keep going, I don't want to interrupt you, sorry?‑‑‑Yes, it's no good trying to argue or anything with a resident with dementia because it's not going to make any sense to them anyway.


Can I just, can I understand this, is what you're saying in paragraph 14 this, with a certificate 3 you are competent to do the job but you wanted to more than just a certificate 3 job?‑‑‑I felt there was a need to do more.


That's why you pursued further education so that you could become more competent in doing your job?‑‑‑Yes.


At the end of that paragraph you say this:


Personally I felt I needed more explanation on those matters.  Even if it wasn't in my scope to assess and action those issues, as a worker in aged care you need to be able to identify when something changes or isn't right so you can report it in a timely way.


Can I just give some examples of that and see if I understand what you're saying?‑‑‑Yes.


If you were a personal care worker and let's say I'm a resident and I'm less talkative today or less awake today, is that what you meant by observing and then reporting that?‑‑‑Yes.


If you take me to the shower and I appear a little less stable today than I did yesterday, would that be another good example?‑‑‑It could be, yes.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


You then talk about the fact that you're medication endorsed, and as I understand your evidence consistent with other evidence in the case, originally an EN had to extra training but it then became part of the Diploma itself, and that's how you did it, isn't it?‑‑‑That's right.


Can I just explore with you what it allows you to do?  My understanding is that you still can't administer Schedule A medications?‑‑‑Not without an RN checking it, or within our organisation two ENs can administer Schedule A medications.


Okay.  Bear with me, I hadn't heard that before in the case.  So, in your organisation I don't need an RN to administer Schedule A medications?‑‑‑Not necessarily, no.


When you say 'not necessarily', when would I need an RN?‑‑‑Especially with your IV medications for S8, yes.


So, if it was just an Endone tablet, as long as the GP had prescribed it, two ENs could administer that?‑‑‑That's right.


Outside of that, I take it that your primary focus is Schedule 4 medications?‑‑‑Yes.


And does your organisation do what most seem to do, they're provided in Webster or blister packs for the resident?‑‑‑Yes, except for sometimes when we have a respite resident comes in we generally have a little on the roll pack, but, yes, generally in Websters.


Help me out, what's an on the roll pack?‑‑‑It's a little - their medications are packed in a little plastic bag and it comes on a roll, so they're all set for, like, 8 o'clock in the morning, lunch time, 8 o'clock in the evening, so they've got their times on it as well to be administered.


And if they're in respite care, would they normally arrive with that?‑‑‑Most of the times, not all the time.  Generally that's something we've got to - or the RN has to organise.


Because tell me if I'm wrong, but if I'm coming in for respite care I won't have a care plan?‑‑‑Generally you don't.  We have an admissions officer that tries to get as much information she can so that we've got a ground level work to level with - to deal with.  Her care needs, yes.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


And I take it that administrations officer isn't an RN?‑‑‑No, she's an  RN.


She is an RN, okay.  Okay, that makes me more comfortable.  And how would you know that - let's say I'm coming in for respite care, how would you know that I require medications?‑‑‑That would be done by the RN in the admission process.


Right?‑‑‑We ring the doctor and get a medication summary and medical history so that we know whether they've got diabetes, congestive heart failure, arthritis, osteoporosis, so that we need to be more vigilant if there's a fall.  If she is non compos one day and it could be she could be in a hypo with diabetes, so, yes, more of that sort of thing.  So she's got to know all that so we know that.


So, the RN puts together what might be said to be a mini care plan as best they can?‑‑‑Yes.


And if they had medications, where would they come from, from their local GP or from their home?‑‑‑We would have the - try and get the scripts transferred to the (indistinct) chemist and have them dispensed from the chemist.


And then I take it the same Schedule 8, Schedule 4 rules would apply?‑‑‑Yes.  Yes.


Could I ask you to go to paragraph 22?  You discuss in paragraph 22 doing a palliative care course by program and experience in the palliative approach?‑‑‑Yes.


This is a course you did after you became an EN?‑‑‑Yes.


Okay.  And was that something the employer asked you to do, or was that something that you were just interested in doing?‑‑‑That was something I was interested in doing because some nursing homes I feel don't apply palliative care early enough for the dignity and the respect of the resident.


Is that a concern about the approach the registered nurse is taking, or is that a different concern?‑‑‑A bit of both.


And was this part of your professional development hours you have to do, or was this outside that?‑‑‑That was - sorry, I'm just ‑ ‑ ‑

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


No, that's okay, take your time?‑‑‑I lost you.


You're right?‑‑‑That's in ‑ ‑ ‑


So we're talking about your palliative care course?‑‑‑Yes.  I did that because sometimes - some RNs are reluctant to commence pathways, we call it, pathway to palliative care.  Also sometimes management can be a little bit apprehensive but many a times we have commenced a patient on a Niki pump, what we call a Niki pump, which is the medication at a moderate level, and sometimes they bounce back, because it's allowed the body to rest, recuperate and then we start feeding them again, and then they come back when the Niki pump is taken off.  But some RNs are reluctant to start it.


And I take it you did this course so you were more confident in how you worked with the RN on that issue?‑‑‑Yes, but also I did that because of the new advanced care directives that were being introduced.


Okay.  And absent doing that course would you have felt that you were competent to work with the new advanced care directives?‑‑‑To understand my role when it come to advanced care directives I felt I needed to do it, yes.


If you go to paragraph 25 ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑you talk in paragraph 25 about challenges in getting hold of the registered nurse, and you say that they're often simply dealing with emergencies.  By 'emergencies' you're referring to things like a resident falling?‑‑‑Yes.


What else might‑ ‑ ‑?‑‑‑Or ‑ ‑ ‑


Go on?‑‑‑ ‑ ‑ ‑there could be a skin tear, a resident's done a skin tear.  A lot of PCAs don't do documentation, and aren't trained with that, so the RN has to go and generally do the dressing.  There's not always an EEN or an EN on of an evening.  You might have two PCAs credentialed within the organisation to do medications.


So, if I was a resident and I just come out of the shower and I had a skin tear, I take it you're telling me the protocol is, is that an EN or an RN has to be called?‑‑‑Yes.  Yes, and then the RN has to be notified because then she will have to assess why the incident occurred, the skin tear occurred, whether it's a reportable issue or not for the new SIRS.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


So this is - she'll obviously have to record that there is a skin tear and then there'll have to be an evaluation as to whether or not the reason for the skin tear gives rise to a SIRS notification?‑‑‑That's right.


That might be - I think the categories include things like neglect, unreasonable use of force, those categories?‑‑‑That's right.


Yes.  And in terms of how the skin tear is to be clinically dealt with that's a decision of the RN?‑‑‑Can be, yes.  She generally would dress it, but then she's got to do the incident report and notify the family, and also notify the doctor.


Which is the protocol that people have to now follow, isn't it?‑‑‑Yes.  Yes.


When you say 'generally', do you mean sometimes the EN would attend to it?‑‑‑Yes.


Okay.  And you said a minute ago that the PCAs aren't always good doing their documentation.  Can you just help me with what you mean by that?‑‑‑Some of them are very reluctant to learn to do the documentation and some girls just don't document.  They just won't go ahead and do the training to do the documentation.


So, that is writing out what is required to report on the tear?‑‑‑Well, that and just general progress notes.  A lot of staff, a lot of PCAs at work do not do any documentation other than your general maintenance as (indistinct) maintenance, your monitoring of that, BPs that sort of thing, your COVID testing, the basic care documentation needed.


If they're not doing that, who in your organisation is doing the progress notes?‑‑‑Us ENs.


And I take it is that just a personal reluctance rather than a competency reluctance?‑‑‑I think it could be a bit of both.


If I could then take you to paragraph 27?  In paragraph 27 you're talking about the administrative work that RNs are now doing.  You say:


For example, if a transfer to hospital is required, the RN does the administration side of that.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


Has it always been the case that RNs have done that in your facility?‑‑‑Yes.


By 'the administration side', does that mean contacting the hospital or the ambulance in the first place?‑‑‑Yes, along with speaking to our director of care services or the on call person, just making sure that that's what they want us to do as well, and then they have to notify and speak to the family; they'd print off the transfer papers, get a copy of their medication chart so that's all ready to go with the patient when they go.


And that's something they would always have done?‑‑‑Yes.


You then say, 'The RN also makes appointments.'  I'm assuming, is that appointments for the resident?‑‑‑Yes.


Is that a role they would normally have played, or is that a role that somebody else would have played?‑‑‑It's usually a role that the family would have made – organised, and then informed us, and then we just put it in the diary.  But a lot of the families don't live – some of the families don't live in the area, so if a resident needs to go to the doctor, we send them to the doctor or the doctor comes in, and then it's up to the RNs to organise follow up appointments, transport for the residents and that sort of thing.


So if I was a resident and I needed to see a gerontologist, that would be an example of that, would it?‑‑‑Yes.


You then go on to say, 'RNs are also involved in producing the care plans (indistinct) and updating the care plan.'  In your facility, I take it the RN writes the initial care plan?‑‑‑Generally it's the admissions officer.  Then we do a seven‑day assessment, which is done by most of the care staff on toileting needs, showering needs, dressing needs, all of that stuff, and then the care plan is all put in together generally after a seven‑days admission.


I think you said earlier, is the admissions officer an RN?‑‑‑Yes, she is.


So somebody who has got the RN scope of practice puts the initial document together?‑‑‑Yes.


You then spend a period of time observing the resident?‑‑‑Yes.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


And those observations are then filtered back so the RN rewrites the care plan for the future?‑‑‑Yes.


Just bear with me.  A moment ago you said some of the personal care workers struggle with documentation.  Do they struggle with documentation around that as well?‑‑‑Yes.  Well, documentation, a lot of that is just basically whether you showered – so some of it on the computer system, the girls would say, 'was showered, dressed, assisted with making beds', that sort of thing, 'was stand assist off the bed.'  Sometimes we get the physio come in and do a general assessment on their mobility to start with as well, so that gives us an idea of their needs, as level of – whether they need a wheelchair to the dining room, whether they need assistance to get out of bed, assistance with walking, and all that sort of thing as well.


So the personal care worker in that sense could just be ticking a box on some basic information?‑‑‑Yes.


In paragraph 28 you say that, 'Occasionally when there aren't enough enrolled nurses, a PCA will take on the in‑charge role.'  Can you just explain to me what the responsibilities of the in‑charge role are?‑‑‑The in‑charge role, especially in that paragraph, is referring to the dementia‑specific area.  You have two other PCAs on view, so they assist you with the care.  So they'd mainly do the care; you do the medications.  But if they notice a bruise, a skin tear or someone choking, they will immediately get the in‑charge person, which would be the PCA, and they've got to come across and step up to the plate.  Generally if the PCA doesn't feel comfortable or confident, she will straightaway ring the RN or push the emergency button.


Are those PCAs Certificate IV or Certificate III?‑‑‑They would only be Certificate III, with a medication endorsement within the organisation, or I should say medication competency within the organisation.


If I could ask you to jump to paragraph 40?‑‑‑Yes.


'MedSig is a new one.'  I take it that's just the platform that your care plans and things are filled into?‑‑‑MedSig is actually only our medication.  So MedSig has come through with the pharmacy, and the pharmacy pack or the Websters.  So basically what we do is, when we've got the drug orders from the doctor, they get faxed to the pharmacy.  The pharmacy then put up the resident's name and all their medications, a picture of what they look like and what time they have them, so like, 8 o'clock, 10 o'clock, midday, 4 o'clock, whatever time, and then they pack it to that and then send the Websters to us.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


Bear with me.  If you're doing your medication round, and let's say I'm the resident, you pull my Webster‑pak up; I'm assuming that you'll count the tablets and verify they're the right tablets.  Some people have said they use a picture chart for that.  Do you use that?‑‑‑No.  No, we don't.  We do have – I'll say yes now.  Some are on – the pictures are on the computer, so you can go to their medication workshop and it's got pictures of their medication on there, their medication drug chart.  So they'll have pictures of the medication on there, yes.


I take it that in terms of where you go to verify what I'm being given, is that on your MedSig system, is it?‑‑‑That's right.


Do you have a tablet or something?‑‑‑Yes.  Yes, we carry a tablet, yes.


But outside of that, is everything else paper-based?‑‑‑Most of our – some of our residents are on computer, but otherwise some are still on paper‑base as well.  There's a mixture.


Is there a reason for being partly computerised and partly paper‑based?‑‑‑Just different doctors.


Okay, so some doctors won't use the computer?‑‑‑Yes.


Can I take you to paragraph 49 and following?  You're talking about dementia?‑‑‑Yes.


You're in an interesting position, because you've done a Cert III, Cert IV, and you've now done a diploma.  Am I right that when you did your Certificate III you would have had education and practical training in managing dementia and de‑escalation strategies for dementia?‑‑‑When I did mine there was no real dementia‑specific training.  It was basically the care needs:  how to shower, how to toilet, how to mobilise a patient and make sure their walker was with them right.  Generally the basic care needs were what we learnt back then.


Sorry, when was that?‑‑‑1998/99.


Was the Certificate IV the same for you, it didn't deal with those matters?‑‑‑Not greatly, no.  It wasn't till I'd started doing my ENs that we actually got the physical hand‑on sort of training sort of thing.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


So that would be training about observing agitation and how to de‑escalate and things like that?‑‑‑Yes.


Could I then take you to 56?  Hopefully I've got the language right, Ms Knights.  It's my understanding that if you observe a bruise or a skin tear, that's now described as an 'adverse event?'---That's right.


Am I right that that has to be notified to the family or the next of kin and the treating doctor?‑‑‑Yes.


In your establishment is that a job the RN does?‑‑‑They generally like the ENs to do it, if we can do it.  If we haven't got time, we ask the RN to assist with it.


I assume that having notified those persons you'll have to write a short report on what you've observed?‑‑‑That's right.


Does that get consolidated into the progress notes for the resident?‑‑‑Yes, definitely.


Am I right then that it's the RN who makes the call on whether or not it is a SIRS reportable event or is it somebody above them?‑‑‑That's right, the RN will do all the paperwork as far as notifying the Director of Care Services and seeing whether it's a notifiable offence.  If it's something that's been – that we can't identify, then sometimes a Director of Care will come in and look at a video if it's something that's happened in a lounge in a common area.  She will review the video and see and if there's been any harm by another resident being caused, that then it would need to be done within the 24-hour bracket of the SIRS.


Yes?‑‑‑If it's just, like the resident has just got a bruise, they might have had pressure from their leg being crossed or something, if it's something like that, well, then you've got 30 days to report that sort of thing.


The registered nurse will consolidate the paperwork to go to the director?‑‑‑Yes.


But it's the director's decision in your establishment whether or not they make a SIRS report?‑‑‑That's right.


Could I ask you to go to 64, if you could.  In 64 you're talking about ACFI and I'm assuming ACFI paperwork.  You say here:

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


With the ACFI there is a section that the PCAs do with basic information.


What is it that the PCAs actually do?‑‑‑PCAs will do their weight, their BP, that sort of thing.  They will ask them are they happy with their care, are there any issues that you, you know, you think we can improve on already, that sort of thing.  And then that gets filled into the paperwork and then the EN's role is to go through and read all the progress notes for that month or three-month period, whichever it may be, and document in it that – if there's any changes in medication, any changes in their care, whether they're now needing glasses, their hearing aids and dentures.  We document that and then that all upgrades, goes to the ACFI lady within the organisation which is an RN, and she documents that and then it just classifies their level of care.


I'm just going to work backwards if I can, Ms Knights?‑‑‑Yes.


The ACFI lady – that's okay, that's okay, I'm sure she's very happy with that.  The ACFI lady, she's a registered nurse?‑‑‑Yes.


But is she separate to the sort of day-to-day registered nurses?‑‑‑Yes.


That's a role in itself, is it, in the facility?‑‑‑It is, yes.


Do you know what her title is?‑‑‑At the moment she's CCC as well as ACFI admin.


She's the clinical - - -?‑‑‑The clinical care coordinator as well.


- - - care coordinator?‑‑‑Yes, and admin.


I'm going to jump back to the beginning, then, about the PCA.  In terms of recording their weight, that would be putting them in a weighing chair or something?‑‑‑A weighing chair, yes.


I would record – would I record it on a piece of paper or on a tablet?‑‑‑It goes on the paperwork.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


Right?‑‑‑So it is paper-based because then if a resident has lost weight then we have to put a referral through to the dietitian and the dietitian will come and review.


In terms of the PCA's work, though, they're just recording whether they were 99 kilos?‑‑‑Yes.


With blood pressure, again, I'm taking the blood pressure and I'm simply recording what the reading is?‑‑‑Just recording and if they identify, if they're capable to identify that the BP is abnormal, then they have to report to the EN in charge, and then the EN will decide whether to take it up to the RN.


My understanding is that some organisations have a kind of green, yellow, red scheme for the blood pressures.  So if it's green it's cool, if it's yellow, if it's red you have to race to the RN immediately?‑‑‑That's right, yes.


Do you have a traffic light system as well?‑‑‑We do, yes.  The doctors – generally if the doctor is concerned about their BP they'll have parameters and they're programmed within the computer system.


The computer, okay.  Straight away, if I type in 120/80, it will tell me whether or not I'm green, yellow or red for this resident?‑‑‑That's right.


Then you said they make some observations, general observations about them, are they happy and things like that?‑‑‑That's right.


I take it do they tick a box for that or do they write it on the form?‑‑‑Generally they can write it on the form.  Yes, we prefer them to, yes.


Sometimes they don't?‑‑‑No.


Sometimes you end up having to do it, do you?‑‑‑Yes.


That's all right.  That's okay.  Just a moment, if I can, Ms Knights?‑‑‑Yes, you're right.


Can I ask you to go to paragraph 92?  You talk in paragraph 92 about aggression and violence?‑‑‑Yes.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD


Does your organisation have rules to make sure you don't place yourself in an unsafe situation?‑‑‑We generally have – the care staff have policies and procedures to follow in regards to their own safety.  Their safety is important as well as the resident's.  So do not try and put yourself in a dangerous position.  With dementia, it's just understanding that don't argue, walk away, come back when they've calmed down or something like that.  It's much easier.


That's the de-escalation strategies that you were - - -?‑‑‑Yes, yes, diversional therapy.  Take them for a walk.


Yes?‑‑‑Talk about reminiscing or something like that, yes, to try and divert their attention from what it is at the moment.


Do those strategies work for you?‑‑‑Most of the times.  Not always.


If they're not working, is it the rule that you have to remove yourself from the situation?‑‑‑Yes.


Yes and having removed yourself, is that when you call the RN?  Who do you call?‑‑‑Generally we'll notify the RN of what's happening and she will either say, 'Look, if things don't work in 10 minutes just give me a ring back and I'll come on over.'  But, yes, generally we just walk away, leave them for about five or 10 minutes, then go back and re-try again.  The same with when you're doing medication.  If they might not want to take their medications there and then, so you go away and let them finish doing whatever they're doing, whatever they're thinking.  Come back and just try again and, yes, they'll take them no worries then.


Just a moment.  Ms Knights, thank you for your evidence.  No further questions, Commissioner?‑‑‑Thank you.




MR HARTLEY:  I have nothing in re-examination, so thank you, Ms Knights?‑‑‑Thank you.


COMMISSIONER O'NEILL:  Ms Knights, thank you for your evidence today.  You're excused and free to go?‑‑‑Thank you very much.  Thank you.  Good luck, everyone.

***        WENDY PAULINE KNIGHTS                                                                                                        XXN MR WARD

<THE WITNESS WITHDREW                                                           [12.25 PM]


COMMISSIONER O'NEILL:  Mr Hartley, who's next?


MR HARTLEY:  I think it's Mr Voogt who is next and that's Mr McKenna's witness.


MR McKENNA:  The Commission pleases, Mr Voogt has been contacted and I'm not sure if he's logging in through Adrian Johnson's log-in but I've just seen that there is someone.  Mr Voogt?


MR VOOGT:  Hello.


COMMISSIONER O'NEILL:  Mr Voogt, I'm Commission O'Neill.  My associate is just going to have you take the affirmation.


MR VOOGT:  Thank you.


THE ASSOCIATE:  Mr Voogt, can you please say your full name and work address?


MR VOOGT:  It's Steven Andrew Voogt, and my work practice address is 54 Ryan Lane, Beechworth, Victoria.


THE ASSOCIATE:  Thank you.

<STEVEN ANDREW VOOGT, AFFIRMED                                     [12.26 PM]

EXAMINATION-IN-CHIEF BY MR MCKENNA                            [12.26 PM]




MR McKENNA:  I'll take myself off mute.  Mr Voogt, I'm Jim McKenna, I'm one of the barristers in this proceeding for the ANMF.  Would you please restate your full name?‑‑‑Steven Andrew Voogt.


You are a nurse practitioner?‑‑‑Correct.

***        STEVEN ANDREW VOOGT                                                                                                     XN MR MCKENNA


You've just given a Beechworth address.  Could you repeat that, please?‑‑‑54 Ryan Lane, Beechworth.


Thank you, Mr Voogt.  You have prepared a witness statement for the purpose of these proceedings?‑‑‑I have.


Do you have a copy of that with you today?‑‑‑I do.


Can I confirm that it is a statement dated 29 October 2021?  The date should appear, I think, on page 13?‑‑‑I'll just check.  29 October 2021.


Whilst you're there can I ask you to confirm that it runs to 70 paragraphs?‑‑‑It does.


There are two annexures to that statement?‑‑‑There is one from the AMA and there is another one with my credentials.  Is that correct?


Terrific.  Have you had a chance to read that statement recently?‑‑‑I have.


Are there any changes, corrections or clarifications you wish to make to it?‑‑‑Yes, there are.  Sorry, I haven't got the number of the paragraph but the – we talked about the GP practices and their level of service.  There are now an extra three GP practices that now do not offer any on-call, so after 5 pm, and no weekend work.  Staff in nursing homes are not able to contact their doctors.  As a result of this we talked about the residential in-reach service at North-East Health Wangaratta to try and compensate.  Now their hours are from 11 in the morning until 1930 in the evening, Monday to Friday.


Subject to that clarification, are the contents of your witness statement true and correct?‑‑‑Yes.


Are the two annexures true copies of the documents that you refer to in that statement?‑‑‑Yes.


Commissioner, that statement appears at document 230 of the electronic court book at page 12,024.

***        STEVEN ANDREW VOOGT                                                                                                     XN MR MCKENNA


Mr Voogt, on the screen in front of you if you've got a number of squares you might see Mr Ward has held his hand up?‑‑‑Yes.


Mr Ward may have some questions for you, thank you?‑‑‑Okay.

CROSS-EXAMINATION BY MR WARD                                         [12.30 PM]


MR WARD:  Mr Voogt, can you hear me okay?‑‑‑Yes, Mr Ward.


Thank you very much.  Mr Voogt, my name is Nigel Ward.  I appear in these proceedings for the employer interests.  Do you have your statement in front of you?‑‑‑I do.


I'm going to start with you, if I can.  Paragraph 21 you say you run a consulting business.  Am I right that you run your own business consulting to aged care facilities?‑‑‑Yes, I rum my own business, it's a company.  I'm a nurse practitioner.


Yes?‑‑‑And I'm engaged with 10 to 12 GPs that work around different clinics in Wangaratta.  And I engage two facilities in Wangaratta and assist the GPs in looking after their residents at those facilities.


I'm just trying to ask you questions to understand.  I'm not trying to contradict you?‑‑‑Yes, no, no.


Is what you just told me that are you brought in by the GP or are you brought in by the facility?‑‑‑No, I'm engaged by the facility first.


Right?‑‑‑Then whatever residents are there under the GPs I work with, I look after those residents.


The next two questions are going to sound terribly dumb but bear with me.  What is it you can do that a registered nurse is not allowed to do?‑‑‑Well, nurse practitioners are defined by their scope of practice, I think it's in there somewhere, but we have to do clinical monitoring and a master's and we have to be mentored by geriatricians or whatever specialty you're in.  And once – well, when I did I had to sit exams.  So what it means is we have extended scope of practice.  So we're allowed to do a lot of similar things as doctors.  So we can order diagnostics and we can interpret those diagnostics, and we can then manage any illnesses through therapeutic medication.  So we can prescribe, we can refer to specialists, we can order pathology and we can order radiology.  So, yes, it's an extended scope of practice.

***        STEVEN ANDREW VOOGT                                                                                                          XXN MR WARD


No, that's fine.  Could I take you to paragraph 26, I just want to make sure I've got this clear in my head.  You describe something similar in 26 and you say:


I'm an autonomous practitioner.




You say:


I can diagnose.


Are you qualified to diagnose anything or are there things where you would say this is beyond my scope of practice?‑‑‑Yes.


Where would the line be drawn?‑‑‑Well, look, my area of expertise is gerontology.  Okay.  So we're looking at what we call the geriatric syndrome.  So anything around chronic issues around dementia, cognition, mental health, chronic pain, falls and so forth, is within my scope of practice.  But also I'm mental health trained, so my scope is a lot of psych-geriatrics.  And I'm also intensive care trained so much of my work revolves around managing residents who become acutely unwell.


When might you, in dealing with an aged care resident, when might you refer on to a doctor?  Can you give me an example of when you would refer on to a GP?‑‑‑Generally I discuss with GPs all the time where their residents are at clinically.  I often use the geriatrician that I telehealth with from Melbourne for really complex issues that are either out of my scope of practice or they're really complicated and we need a specialist.  Now, a typical time when I would consult a geriatrician is someone who has dementia who is really behaviourally disordered and we cannot manage it.  So we use a combination of maybe the geriatrician and in my statement Dementia Support Australia.  So but, you know, obviously there are certain conditions where it's out of my scope of practice, such as complex neurology, complex renal disease.


Yes?‑‑‑That tends to go back to the GP, liaising with the specialists they use for those particular issues.


Obviously you're quite substantially qualified, you will make that decision yourself as to whether or not it's within your scope of practice or not?‑‑‑Yes.

***        STEVEN ANDREW VOOGT                                                                                                          XXN MR WARD


Yes?‑‑‑It's a requirement of AHPRA and it's a requirement of AHPRA to remain in your scope of practice and model of practice.


Yes?‑‑‑So we're very careful.


No, no, I'm not suggesting otherwise?‑‑‑Yes.


In terms of prescribing medication, I'm just mildly confused about that?‑‑‑Yes.


Are you at large to prescribe medication or are there limits as to types of medications you can prescribe?‑‑‑I can prescribe most medications.  There are certain medications that we can't prescribe and that's more related to the PBS.  The PBS, on occasions, have stated that certain medications, even though technically we're allowed to use them, if we were to prescribe them the consumer would not get a rebate on those medications, so technically I don't prescribe those medications.


It's not that you're not allowed to prescribe Xanax, it's just that the consumer might be unable to make a claim if you prescribe something versus the doctor?‑‑‑Yes, well, Xanax is not a good example because that's really restricted but a similar drug like Oxazepam, I can prescribe.  But there's a certain common antibiotic and for some unknown reason on PBS I can't prescribe it.


Right?‑‑‑So if I have to use it then we'd go through the GP, yes.


A drug like a Xanax, that's a restricted drug, that's outside of your - - -?‑‑‑No, it's not.


You can still do that?‑‑‑I can prescribe those classes of drugs and antipsychotics and antidepressants, antibiotics, all the common daily drugs are usually okay within the scope, yes.


Bear with me how I describe this.  You're, in effect, a substitute for the GP.  Is that - - -?‑‑‑Yes, we don't like to call ourselves pseudo-doctors, you know, because there's a little bit of animosity still between the nursing profession and the doctors profession.  But let's say that a lot of what I can do overlaps a lot with what the GPs can do, yes.

***        STEVEN ANDREW VOOGT                                                                                                          XXN MR WARD


You seem to be that crossover person between the registered nurse and the doctor?‑‑‑Look, I'm probably more crossover with the doctor actually.  Generally speaking, like, for example here today at St Catherine's in Wangaratta I have 50 residents.  And I generally look after most of their medical needs, and, you know, by virtue of the collaborative agreement I will communicate with the GPs that the relationship thus far is so good that there's trust and - yes, so I'm managing them medically, yes.


And the collaborative agreement is something you put in place with the GP to allow you to play that role with the residents obviously?‑‑‑In private practice for you to access the Medicare schedule and the PBS, you have to have a collaborate agreement with the GP.  You could still operate, but the problem for the resident is that they'd not be able to claim against MBS and PBS without that collaborative agreement.


Can I take you to paragraph 27?‑‑‑Yes.


Particularly you talked about the first part about contacting GPs if there's a particularly complex issue, but right at the end of that paragraph you say this:


What I do that a usual RN in aged care can't revolve -


I think that's 'resolve' -




around the extended scope of practice would be prescribing diagnostic and ... Ultimately RN staff might identify a clinical issue and refer it to me as the NP.  I would then diagnose and manage the issue.


Could you just give me an example of what an RN would ordinarily refer to you?‑‑‑Well, someone might become febrile, have a temperature and get confused, and, you know, the nursing staff will probably 99 per cent of the time know what the problem is, but they'll ask me to see them, and I'll assess them clinically.  Now, it may be a urinary tract infection, it could be a chest infection, depending on - if it's complicated I might order some pathology, and probably initiate antibiotics.  That's a typical example of an acute problem.

***        STEVEN ANDREW VOOGT                                                                                                          XXN MR WARD


So the RN is making a decision as to whether or not they need further assistance in the diagnosis of what's going on, and you would step in and play that role?‑‑‑Yes, I think the RN would refer to me if they feel as though the issue needs to be escalated, if they feel the resident is in any danger or is becoming unwell.


Okay.  And absent having you, I take it that the RN would escalate it to a GP?‑‑‑Yes.  Yes, if that's - often they'll ring me.  If that's between the hours of 9 to 5, as I was just saying to Mr McKenna, there's quite a few practices now not offering an on-call service at all, so, they would - out of hours they would be relying on a telephone service like My Emergency Care or sending the resident to an emergency department.


So, if the RN in the case we just discussed was getting concerned for the resident, and they didn't use a service like you, couldn't get a GP, they would normally ring Triple 0 and the person would go to hospital?‑‑‑Well, no, what would happen is if it was till 1900 hours in the evening, Monday to Friday, they have the option of contacting Residential Inreach.


Right?‑‑‑Which is run by the local Wangaratta Hospital, but that's only, you know, three hours in the evening.  Otherwise they - well, to be honest, I get a lot of calls after hours, because that's just the service I have to offer, or they do have the option of ringing a 1800 number, or they - some facilities do use My Emergency Doctor, which is a group of emergency physicians.  But it's a really complex issue because a lot of residents in their advanced care planning do not want to be transferred to hospital, so we have to - this is where the problem lies, we have to work out a way of managing these residents out of hours.


Have you ever been employed directly by an aged care provider as a nurse practitioner?‑‑‑Yes.  Well, currently I'm contracted, but when I first qualified as a nurse practitioner I was still working with Northeast Health Wangaratta.


Right?‑‑‑And I did service their residential aged care facility, Illoura, which is a 60 bed facility in Wangaratta as an employed nurse ‑ ‑ ‑


Is that public sector?‑‑‑Yes.


That's public sector?‑‑‑Yes.  Yes.


You've not worked in the private sector directly as a nurse practitioner to an aged care provider?‑‑‑No, I am now.  Yes.


As a consultant?‑‑‑As a nurse practitioner.

***        STEVEN ANDREW VOOGT                                                                                                          XXN MR WARD


Yes, okay?‑‑‑So ‑ ‑ ‑


But through your company?‑‑‑Through my company I'm contracted by private nursing homes.


Right?‑‑‑Also currently I'm doing some work for Monash Health in Melbourne assisting them with some of their aged care facilities.  Again, it's under a contractual basis but it's with another consultant.


Can I ask you to go to paragraph 39 and about half-way through you make this comment:


It's got to the point where major providers won't take moderately to severely behaviourally disturbed patients and many end up in public facilities after being sent to emergency.


?‑‑‑Sorry, what number is that, sorry, sir?


My apologies.  I was going to call you Dr Boyd?‑‑‑No.


You sound like a doctor to me.  Paragraph 39, half-way down that paragraph you talked about assaults?‑‑‑Yes.  Yes.


You then say:


It's got to the point where major providers won't take moderately to severely behaviourally disturbed patients and many end up in public facilities.


Do you see that?‑‑‑Yes.


Can I just work backwards on that, what are the public facilities they end up in?‑‑‑Well, my experience is Monash.

***        STEVEN ANDREW VOOGT                                                                                                          XXN MR WARD


Right?‑‑‑Monash has five aged care facilities now, and what you see is - I mean, a lot of private facilities have dementia specific units, so they take them.  But with Monash what is occurring, I believe, is they have an over-representation of residents with behavioural disorder, whether it be psychiatric based or dementia based, and because Monash run those facilities and those residents are in at Monash taking up a bed, they will send them to those aged care facilities that Monash operate, because basically the facility can't refuse the resident.


So, when you say it's got to the point where major providers won't do this, which major providers were you thinking about when you wrote that?‑‑‑Well, look, I think in general most providers like Bupa, I think any provider is very hesitant to take anybody where they've given a history of severe behavioural disorder.


And could you ‑ ‑ ‑?‑‑‑I think any provider.


And so your view is they're being syphoned into the public sector system, are they?‑‑‑A percentage of them.


Right, okay?‑‑‑I mean, there's still - I mean, up in the country the residents are placed, but it is difficult sometimes to find a - sometimes to place a resident because of their behaviours.


Can I just understand what do you mean by 'moderately behaviourally disturbed?‑‑‑Well, obviously - well, severely you would say they're really aggressive and they're hitting people, they're hitting co-residents and what have you.  Moderately is they have a medium to higher level of agitation, and irritability and require often one-to-one for part of the day of care.


So your sense is these people are not exclusively but to some extent being moved out of the private sector into the public?‑‑‑No.  Once they're in the private sector they stay.  It's tenure of agreement.  It's when someone comes into a facility, whether they come from home or via hospital, that that is the issue of sometimes placing the resident.


I see?‑‑‑And, so, it's illegal - yes, it's - we have a tenure of agreement in any facility, and ageing in place, that any facility is obliged to keep the resident, and it's only when the legal decision‑maker, whoever the legal decision‑maker, consents to a person being moved elsewhere, for whatever reason.


So the emphasis there is on your statement saying, what, they won't take them in the first place?‑‑‑Yes.


No, I just wanted to understand?‑‑‑Yes.

***        STEVEN ANDREW VOOGT                                                                                                          XXN MR WARD


Okay, I understand now?‑‑‑A new admission, not a – yes, a new admission.


From your quite extensive experience, do you think that – I'm just going to deal with them one‑by‑one – you obviously have a lot of interaction with personal care workers?‑‑‑I do.


Do you think their competence in training is sufficient for them to do the job?‑‑‑As long as they're doing the job that has been designed for them, yes.


Okay?‑‑‑And that is personal care, so physical care, feeding, hygiene and what have you, but often, because of – yes.


So I take it that what you haven't said there is you don't want them creeping into any clinical aspect of anything?‑‑‑Well, their training pertains them to offering care.  Now, obviously part of their training is that they're to monitor and look for any sort of deterioration around a resident, but a lot of that is revolved around, specific to geriatric.  So a lot of that is around weight loss or falls, or mental health, you know.  It's not really pertaining to – obviously they're going to recognise someone acutely deteriorating, but you know, investigating that then becomes beyond their scope of practice, I believe.


If I was the resident, they're competent to observe that I'm less talkative today or more sleepy, but then - - -?‑‑‑Yes, exactly, and they might feel hot.


Or they might feel hot?‑‑‑Yes, and so it's within their scope.  They might then decide – they might maybe point it directly to the RN or the EN, or they may decide to do some vital signs.


And in that sense, would they take the person's temperature?‑‑‑Yes.


And they might take their blood pressure if they've been trained to do that?‑‑‑Yes.


And again, if there is something different to the norm, that might be then reported immediately to the RN or the EN?‑‑‑That should happen, yes.


Can I just ask you to go to paragraph 52 of your statement?  You say in 52:

***        STEVEN ANDREW VOOGT                                                                                                          XXN MR WARD


I've also noticed increased expectations of PCAs around their observation of residents.  PCAs are now expected to observe residents, recognise and report deterioration and be able to articulate it to the EN.


The types of things you and I have just discussed, is that what you meant by observing residents and reporting?‑‑‑I'll just read the paragraph, if you don't mind.


No, please do?‑‑‑Yes, they are expected to look for anything that there may be a deterioration in the resident.


As we've discussed, that might be placed in a progress note, or possibly could be raised directly straightaway with the RN?‑‑‑Should be raised with the RN or the EN.




Thank you, Mr Voogt.  I wish you well.  No further questions, Commissioner?‑‑‑Thank you.


COMMISSIONER O'NEILL:  Any re-examination?


MR McKENNA:  Just one.  Thank you, Commissioner.

RE-EXAMINATION BY MR MCKENNA                                         [12.52 PM]


MR McKENNA:  Mr Voogt, you were asked some questions by Mr Ward about prescription rights of nurse practitioners and about the collaborative agreement, and you were asked whether you needed a collaborative agreement to allow you to play that role in prescribing and so forth, and your answer, as I recall it, was that in private practice you must have a collaborative agreement to have access to Medicare and the PBS.  Do you recall that?‑‑‑Yes.


Can you explain how, if it does, if the practice differs in public practice?‑‑‑Well, in the public hospital, public practice, a nurse practitioner can't get a provider number for a start.  They can get a PBS number, which enables them to prescribe, but they can't get an MBS number.  But within the public system you don't need that, because the medications that you prescribe are under the state health system, because it's a public health system, so it's all paid for by the state health budget.


Thank you, Mr Voogt.  Commissioner, might the witness be excused?

***        STEVEN ANDREW VOOGT                                                                                                   RXN MR MCKENNA


COMMISSIONER O'NEILL:  Mr Voogt, thank you for your evidence this afternoon.  You are excused and free to go?‑‑‑Thank you.  Thanks for your time, Commissioner.

<THE WITNESS WITHDREW                                                           [12.53 PM]


COMMISSIONER O'NEILL:  Mr McKenna, in light of the time, do you want to call your next witness, or is this a better time to break for lunch?


MR McKENNA:  I'm in the tribunal's hands, Commissioner.  She is available and she can join now, if that's convenient.  The next witness is Dianne Power.


COMMISSIONER O'NEILL:  What's your estimate with Ms Power, Mr Ward?


MR WARD:  I will need a half hour with her.




MR McKENNA:  Commissioner, I'm sorry, I've just been advised that Ms Power is unavailable after 2.30 today.  I'm sorry about that.


COMMISSIONER O'NEILL:  Well, how about we adjourn now and resume at 1.45?


MR McKENNA:  If the Commission pleases.


MR WARD:  Thank you, Commissioner.


COMMISSIONER O'NEILL:  The Commission is now adjourned.

LUNCHEON ADJOURNMENT                                                          [12.54 PM]

RESUMED                                                                                                [1.45 PM]


COMMISSIONER O'NEILL:  The Commission is now resumed.


Ms Power, can you hear me all right?


MS POWER:  Yes, I certainly can.


COMMISSIONER O'NEILL:  All right.  I'm Commissioner O'Neill, and my associate is just going to have you take the affirmation.


MS POWER:  Thank you.


THE ASSOCIATE:  Ms Power, can you please say your full name and work address.


MS POWER:  Dianne Power, Regis Whitfield, 120 McManus Street, Whitfield, 4870.

<DIANNE MARY POWER, AFFIRMED                                            [1.45 AM]

EXAMINATION-IN-CHIEF BY MR MCKENNA                              [1.46 PM]




MR McKENNA:  Thank you, Commissioner.


Ms Power, my name is Jim McKenna, I'm one of the barristers for the ANMF in this proceeding.  Could I ask you to again please state your full name?‑‑‑Dianne Mary Power.


And you are employed as an assistant in nursing at Regis Whitfield?‑‑‑Yes, I am.


Could I ask you just to please repeat the address of that facility?‑‑‑It's 120 McManus Street, Whitfield, 4870.


Thank you.  Ms Power, have you prepared a witness statement for the purpose of these proceedings?‑‑‑I have.


Do you have a copy of it with you today?‑‑‑Yes, I do.


Have you had a chance to read it recently?‑‑‑Yes.

***        DIANNE MARY POWER                                                                                                           XN MR MCKENNA


Could I just ask you to confirm that it is a statement dated 29 October 2021?  I think you hopefully should find that date on page 15?‑‑‑Yes.


And can you also confirm, whilst you're at page 15, that it runs to 105 paragraphs?‑‑‑It is.


Are there any changes, corrections or clarifications you'd wish to make to that statement?‑‑‑No.


Commissioner, that statement can be found in the electronic court book at document 216, page 1179.


Ms Power, on the screen in front of you there are a number of squares, hopefully you can see Mr Nigel Ward?‑‑‑Yes, thank you.  Hi.


Mr Ward will now have some questions for you.  Thank you?‑‑‑Yes.

CROSS-EXAMINATION BY MR WARD                                           [1.47 PM]


MR WARD:  Ms Power, can you hear me okay?‑‑‑Yes, certainly can.


Thank you very much.  Ms Power, my name is Nigel Ward.  I appear in these proceedings for the employer interests.  I'm just going to ask you some questions if I can.  Do you have your statement in front of you?‑‑‑Yes, I do.


Can I just start with your qualifications?  My understanding is you've got both a certificate III and certificate IV specialising in aged care; that's correct?‑‑‑Yes.


And you identify yourself as being medication competent?‑‑‑Yes.


Did you have to do a separate training program for that, or was that encompassed in your Cert III or Cert IV?‑‑‑No, that was extra training for that provided by Regis.


Was that an in-house course?‑‑‑Yes.  Yes.


Then was there a theoretical and a practical component?‑‑‑Yes.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


Do you remember how long the theory was?‑‑‑I think it was a day and a-half and then I had to do a week with the practical.


And when you say you had a week, you were under the observation of an RN during the week?‑‑‑Yes.


And I take it that the RN signed you off as being competent at the end?‑‑‑Yes.  And I had to do a - every year you've got to do a refresher.


And you do that with the RN as well?‑‑‑Yes, and you have to fill out - do some - a test as well.


Is it a very long test?‑‑‑Reasonable.


Well, it takes an hour or so to do?‑‑‑Yes.  Yes, it would be.  Yes.


Okay.  Can I ask you to turn to paragraph 12, I just wanted to understand the Regis Whitfield facility?‑‑‑Yes.


I'm just trying to understand this, it says there's a dedicated dementia unit.  Is that a secure unit?‑‑‑Yes, it is.


But that unit is otherwise in the building?‑‑‑It is.


And then you say this, plus an upmarket Endeavour wing?‑‑‑That's right.


Can you tell me what upmarket means?‑‑‑Well, they pay more there.


Does it just - it looks better or do they get a different sort of care?‑‑‑It's a newer wing and they get a few more services there.


What additional services would they get there?‑‑‑Well, they have their own happy hour.


Okay?‑‑‑And they are - the rooms are bigger, it's just a nicer wing overall.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


But you don't work in the Endeavour wing?‑‑‑Yes, I do.


You do work in the Endeavour wing, okay.  But do you ever work in any of the other wings?‑‑‑Yes.


I think you say you work in the dementia wing?‑‑‑Yes, I work in most of the wings in the facility.


And does that mean you just rove around depending on where they need you?‑‑‑No, just - I've got set shifts so I've got - I usually do 10 shifts, so six of those shifts are in Endeavour and the other shifts are upstairs which is Cassia, Pendennis wings which are high care wings, and I - but I can be shifted anywhere at any time, so I can be shifted from Endeavour into Silkwood, or I can be shifted - depending on care needs.


Can I ask you to go to paragraph 19?  You mention in paragraph 19 an example of a resident having a fall?‑‑‑Yes.


Is your protocol if a resident has a fall that you have to call the RN?‑‑‑Absolutely.


And I ‑ ‑ ‑?‑‑‑Yes, you make them comfortable, make sure you call the RN, hopefully you've got a phone.


Hopefully.  And I take it the RN then will come and decide what should actually happen to the resident?‑‑‑Yes, she comes in and assesses and I tell her what's happened, you know, or my observations and then she'll make her observations and maybe call an ambulance or do whatever she needs to do.


So if you've observed the fall you'll describe the fall to the RN?‑‑‑Absolutely.


Or if you've been with the person who's fallen and let's say they've lost consciousness you'd tell them that they were conscious but they've lost consciousness?‑‑‑Absolutely, yes.


Or the other way around?‑‑‑That's right.


Yes?‑‑‑But, yes, you know, a lot of the falls are unsighted, so, you know, you maybe go in and find them on the floor, so, you just let them know what you saw.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


Then in paragraph 20 you talk about, 'Once the residents are up we move them into princess chairs and wheelchairs'.  My understanding is the princess chair is like a tub chair on wheels; is that right?‑‑‑That's exactly right, yes.


Are all your residents - are none of your residents ambulatory themselves?‑‑‑Very, very few.  Very few.  They've all got walking sticks or four wheelie walkers or they're in wheelchairs or in the princess chairs.  Or some of them are totally bed bound.


But some can walk with a walker or a walking stick?‑‑‑Yes, but some of them need supervision as well.


So, you would be aware of which ones are less stable if they're using their walker or their walking stick and you'd be keeping an eye out for them?‑‑‑Absolutely, yes, you have to be with them.


You then in paragraph 22 talk about breakfast, and in the second sentence you say:


It's important to know each resident's dietary requirements such as consistency of food.


Isn't it the case that their dietary requirements will be in their care plan?‑‑‑It's in the care plan and it's in the diet comments in the kitchen and that as well, but it's very important that we are aware of those.


So I just want to make sure I understand what you've just told me if I can, so, my understanding is, is that the dietary requirements, any allergies, the - I always get this name wrong, my apologies, the international dysphagia diet standardisation index number will be in their care plan?‑‑‑Yes.


Then you called a book in the kitchen the diet communication folder.  I take it that's a secondary source for a resident's allergies and things like that?‑‑‑Yes, and it just - you know, their preferences.


And is that also used by the book or the chef?‑‑‑It can be.


Right.  Now, when you do medications are we talking Schedule 4 medications?‑‑‑I give them out to the residents.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


Yes, but we're not talking Schedule 8 medications?‑‑‑No, no, no.


No, no, that's all right, I'm not going to get you in trouble.  And I take it that your Schedule 4 medications are kept in Webster pack or blister packs?‑‑‑Yes.


And let's assume that you were on a medication round and I was your first resident ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑am I right that it would work this way, tell me if I'm not, you would take the blister pack into my room, probably on the medication trolley, the first thing you'd have ‑ ‑ ‑?‑‑‑They're not actually blister packs, they're little packets that are on a roll that the chemist brings in.  They're not actually - like, you don't get multiple days on one blister pack.  You've only got - that particular packet has got that amount, you know, like, it might be 8 o'clock Monday, Fred Bloggs ‑ ‑ ‑


So it might not be a Monday, Tuesday, Wednesday, it might be my 8 o'clock Monday medication?‑‑‑That's right, yes.  And then I've got - usually got two, because you work, you know, a seven or eight hour shift, you'll have - you know, your - sort of, your early morning medications, your breakfast medications, your mid-morning medications, your lunch medications, and it goes like that.  And everybody gets their medications at different times, so you've got to be - the doctors give you the times that they're supposed to have them.


So you'll know that my first round of medications might be my 8 am in the morning medications.  You'll know that?‑‑‑That's right, yes.


Right.  And is that written on the medications themselves, or is that in the care plan?  Where would that be found?‑‑‑On the packet.


On the packet.  So, let's say you come to my room for my 8 am medications, I assume that you have to verify that the pills are the right pills?‑‑‑Absolutely, yes, you've got to count them, make sure that it all matches.


And do you - some people have said they use a - like, a picture chart to do that.  Do you have that in your facility?‑‑‑We do have a picture chart there, yes.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


Your picture chart.  And if there's something wrong ‑ ‑ ‑?‑‑‑That's in your medcomp book, so, you've got a medcomp book with you, you go to that particular page, you look up that resident, that time that you've got to have it, it'll have the list there of the medications that are there, any eye drops, any ear drops, any - if they need a nebuliser, if they need - whatever they need, if they need cream on, yes, so - and if they need any, you know, lactulose or any sort of ‑ ‑ ‑


A laxative or - yes?‑‑‑All that sort of jazz.  That's all in there, so you've got to check all that off to make sure that you've got everything with you and everything's there.


That's where you might see the pictures of the tablets, is it, to make sure you've got the right one?‑‑‑That's it, yes, yes.


I think you say this, that if there's anything wrong or not quite right, that's when you contact the RN?‑‑‑Absolutely.


The RN will then determine whether or not you proceed or do something else?‑‑‑Exactly right, yes.


Are the instructions about how to administer in that med comm book too?‑‑‑Yes.


If I need my pills - - -?‑‑‑If you need – yes, if you need them crushed or if you need them given with food or if you need them, you know, followed by whatever, that's all there as well, so you've got all the instructions there.


I'm right, aren't I, that you obviously would observe me taking the medication?‑‑‑Absolutely, yes.


Yes and you would then confirm in – is it in that book you'd write down that I'd taken it or is it somewhere else?‑‑‑I have to sign for each pill in that book.


In that book, okay, and I assume that if I'm being difficult with you this morning and I don't take my pills, you also have to confirm that I haven't taken them?‑‑‑Yes, well, we usually go away, come back, give you another try.  Go back to the RN, she'll give you another try.  Then if, you know, you're completely refusing, well, that's got to be documented as well.  But it is your choice not to take your tablets.


But if I do ultimately refuse, that would involve informing the RN, would it?‑‑‑Absolutely, yes.  No, she would be well and truly involved by then.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


If I could just take you to paragraph 25, you talk about eye, nose and ear drops and then the nebuliser?‑‑‑Yes.


Was that part of your medical competency training as well?‑‑‑Yes.


You also talk about catheters.  How many people do you have with a catheter?‑‑‑There's quite a few actually.  I couldn't give you a number straight off the top of my head but just thinking in one wing I've got probably about – there's 15 people in that wing and I'd say at least one, two, five of them would have either suprapubic ones or they'll have catheters, yes.


I take it that you will remove the catheter bag, you'll record the volume of fluid and then replace with a fresh catheter bag?‑‑‑No, not necessarily.  For me I've got to empty them, make sure that they're flowing properly.  If I see that there's any problems with them, I connect and disconnect the bags that go on overnight.  The actual changing of the bag you can do but if there's anything to do with inserting or anything, that's an RN job.


If you see that there's a need for that you'd call the RN?‑‑‑Absolutely, if it's cloudy or blocked or something like that because if the urine is blocked and their bladder, you know, it can be very painful for them and it can also be very – you know, they get infections and all sorts of dreadful things happening to them.


If you observe the colour of the urine being different, that's when you'd call the RN?‑‑‑Yes or if there's any blood in it or any discharge, you've got to make sure that that's communicated pretty quickly.


You then talk in that paragraph further on about pressure sores?‑‑‑Yes.


Just help me with this.  My understanding is if you see a tear in the skin you have to report that to the RN, is that right?‑‑‑Yes, absolutely, yes, or even any reddening if there's - - -


So by – sorry, I apologise, I've cut you off, but by reddening you mean bruising or just discolouration?‑‑‑No, if they've been sitting too long on one spot or if there's any sort of – that they've been leaning on something and they've got a red spot, you know, because they're so frail they've got to be – it's got to be reported because that can turn very, very quickly into a pressure area.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


Right?‑‑‑So we've got to make sure that they're well and truly looked – we're very, very vigilant for that.


Could I ask you, in paragraph 31 you talk about the care plans?‑‑‑Yes.


And you talk about AutumnCare.  It's my understanding that AutumnCare is a computer system where care plans are kept.  Is that a reasonable description?‑‑‑Yes.


That's a reasonable description, okay, that's good.  But you say in your evidence that care plans are created by the RN and the care manager.  When you're saying that, are you talking about when they're initially written?‑‑‑That's exactly right, yes.


Yes and I'm right that after that you'll obviously be making your progress notes during the day?‑‑‑Yes.


The RN will obviously be reviewing those and that might be make the RN think there needs to be a change to a care plan?‑‑‑Yes.


But also it might well be that you might make an observation to an RN which makes them think there needs to be a change to a care plan as well?‑‑‑Absolutely, yes.


Yes.  Now, you say in your evidence at paragraph 32, you say:


If I have any doubts or questions about the need of a resident I go to AutumnCare and check the resident's care plan.


Do you access AutumnCare on an iPad or on a – how do you access AutumnCare?‑‑‑There's a computer in the nurses' – there's computers in the nurses' station that we go to.


Right, you go to them.  Then you say there's summaries?‑‑‑There's summaries, yes.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


Yes which look very helpful.  There's one on mobility.  Then you say there's also a plaque with symbols to identify resident's needs, preferences and interests.  Can you just tell me what needs, preferences and interests are they?‑‑‑Well, you know, if they're in – in their earlier days if they were a jockey or they've got interests in reading books or if they're, you know, they've got years – they've been playing cards for years or whatever, it just gives you a bit of an in that you can say, okay, when you're talking to them that you've got an idea about their background.


That might help you prompt a conversation with them?‑‑‑Absolutely, yes.


You then talk about talking to lifestyle staff?‑‑‑Yes.


Are those the recreational lifestyle officers?‑‑‑Yes, yes.


If you can't answer this, don't, but is there a sort of nursing care plan and a lifestyle care plan in your organisation or do you put them all together?‑‑‑No, there's two separate.


Two separate and I take it that the recreational team are responsible for the lifestyle part of it rather than the nursing part?‑‑‑Yes.


Paragraph 39 you say the work is physically demanding?‑‑‑It is.


Yes, I wasn't going to have an argument with you about that.  I take it there's rules concerning when something is a two-person lift or a two-person job, there's rules about that?‑‑‑Absolutely.


Would I be right that that will be – so, for instance, if you need two people to shower me, will that be in my care plan itself or will that be somewhere else?‑‑‑That will be in the room on a chart behind the door and it will also be in the computer and that as well.


If you needed lifting equipment to lift me, is that also on that chart behind the door and in the care plan?‑‑‑Yes, it is.  Yes, it is.


But you talk about in paragraph 47, you talk about people with dementia and you talk about difficult behaviours?‑‑‑Yes.


I'm just interested, did your certificate – I assume that you adopt de-escalation strategies when you're dealing with people like that and I assume that, you know, if that's not working you might walk away and then come back.  I assume you adopt various strategies for how you deal with those behaviours?‑‑‑Yes.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


Did you learn those in your certificate 3 or did you really learn those in your certificate 4?‑‑‑I think I learnt a lot of it on the job and I think, you know, you learn what works with some residents and what doesn't work with some residents.  I've done a lot of courses on dementia because I find it fascinating and a lot of the things that you learn in those courses do tell – you know, do help you with the behaviours.  You know, the fact that their perception – you know, you're getting them – you're trying to get them to walk from a carpet onto wood, and because of their perception they think that that's a step or they have to – yes.  So they have difficulties with perception and things like that.  I've learned all that, and if you've got that little bit of extra knowledge, you can say, okay, well this is why Fred's doing this, is because – and you know, just even something as simple as to get them to walk into a bathroom, or get them to walk anywhere, you know, you have to be very conscious of what their perceptions are, and I've learnt – I've done dementia courses for that, but mostly, you know, it's – you know, you might have had a little bit of – there's not enough really; not enough - - -


Can you assist me with what dementia courses you've done?‑‑‑I've done courses with Dementia Australia.


Were they sort of single-day courses, over a week - - -?‑‑‑I did one that went for three days, and I did one that went for two days, and I've done one for one day, yes.


And you found those particularly helpful?‑‑‑I loved it.  Yes, I thought it was good.


Did you learn things you didn't learn in your Cert III and Cert IV?‑‑‑Yes, I think mainly about, you know, perceptions and - - -


Perceptions?‑‑‑ - - - (indistinct) and all those different – you know, there's so many different types of dementia and Alzheimer's, you know, and how that affects different parts of the brain, and why those different parts of the brain then affect the different way they behave.  You know, you've got Lewy bodies that, you know – and they see things, and it's just, yes, a terrible disease.


So having that extra knowledge placed you in a better position to work out how to interact with them?‑‑‑Yes.


Can I take you to paragraph 51?  In paragraph 51 you say:


Some of the more complex care tasks now completed by AINs were done by ENs when I first started working as an AIN.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


?‑‑‑Excuse me, I've just forgotten to turn the phone off.


That's okay.  I'm assuming that this is a reference to what you've seen change – is it since 2012 when you started?‑‑‑Exactly, yes.


I wonder if you could just give me some examples of what an EN used to do that you now do?‑‑‑I do all the medicines.


Yes?‑‑‑And I do, you know, ears, eyes and nose drops.  I do nebulizers.  I do cleaning of SPC sites.  I do changing of urinary – you know, the bags and all that sort of stuff, where that was all RN and EN work when I first started.  Yes, so it's mainly all those sort of things.


When you started at this facility, AINs didn't do any medication?‑‑‑No.


And obviously part of the medication is sort of eye drops and ear drops, those things, so they wouldn't have done those as well?‑‑‑Yes, they did all those as well.


The AIN did those in 2012?‑‑‑No, the ENs did all that.  The AINs didn't do any of that work.


I think you also said then, for instance, changing catheter bags, that was an EN job in 2012?‑‑‑Yes.


Can I take you to paragraph 59?‑‑‑Yes.


You talk about ACFI data?‑‑‑Well, it's not ACFI anymore, since the – it's changed since then.


I learned that this morning.  That's okay?‑‑‑AN-ACC it is now.


Do you collect AN-ACC data now?‑‑‑Yes.


I'm just interested, I just want to go through a few of these if we can.  If you take the reference to bowels, I take it that is whether or not somebody has opened their bowels or not today?‑‑‑Yes, and you use the Bristol Chart to - - -

***        DIANNE MARY POWER                                                                                                                XXN MR WARD




Am I right that you would chart that as part of your normal charting, or do you have to chart it as part of your normal charting and also have to do it for ACFI the second time?‑‑‑Yes, that's true.  Yes, we do the second time, yes.


I take it you take the – you chart it once, but you might fill out more than one – you might fill out a separate form for ACFI, is that right?‑‑‑That's right.  Yes, there's a separate area for ACFI documentation.


So for instance, you might write in your progress notes for the day for me, 'Less verbal today than normal', and you might then have to pick that up out of your progress notes and put that into the ACFI reporting, mightn't you?‑‑‑Exactly right, yes.


And is that - bear with me, I'm sorry, I don't want to sound rude – is that a sort of cut and paste job on the computer, or do you have to type it out - - -?‑‑‑No, we have to do it separately, two totally separate (indistinct).


How much time do you spend typing out the ACFI report?‑‑‑Well, it can be, you know, quite – because you've got to do verbal, physical – what else is there – there's red ACFI and black ACFI, so you've got to do – and you can't – you know, no cutting and pasting there; it's all – you've got to put in all their verbal, and then you've got to do your physical.  Yes, but anyway, we've got to do all that, and then you've got to put in notes to verify that.  So if you put in that he did a – it goes with, like, one or two or three, whatever that equates to, and you can say that, okay, he was aggressive today, he was upset and agitated, and was pacing up and down and was, you know, yelling at other residents.  So you've got to document what exactly was going on, as well as the – you know, not just the number in the column for that, you've got to put in a note to make sure to verify that note.


So some of it is sort of pick a box, one, two and three, but then you have to put a little explanation?‑‑‑Yes, in the next – you know, like, you'll do that one sort of ACFI, and then the other ACFI you've got to put it all in to verify it all.  So it does take a lot of time.


Do you do that every day?‑‑‑Most days, yes.  I mean, it just depends on how many people on your wing are on ACFI that day.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


Would doing your ACFI work a day take an hour?‑‑‑No, it wouldn't take an hour.  I'd say probably – depending on, you know, if the person's got a lot of behaviours and they've had problems with their bowels or whatever, you know, that will take longer, but it'd probably take 20 minutes to do your ACFI.  But I mean to try and get in your pain management and complex pain, your bowels, and if there's – you've got residents that are on – you know, they're on suicide watch or something, and you've got repositioning charts, you've got food and fluid charts, you've got – I should read my own notes, shouldn't I - - -


No, that's okay.  Can we just take a couple of those?‑‑‑There's a lot of documentation now that before I think a lot of that was done – I don't know whether it was done by the RNs or whatever, but over the period of time we seem to have got a lot more documentation to do.


When you say things like 'complex pain management', what is it that you're actually recording?‑‑‑Showers, massage, hair washing, oral care, you know, putting on and taking off pressure garments, all that sort of stuff has to be recorded.


Again, you're typing that out, are you?‑‑‑Yes.


Sorry, are you doing that from memory at the end of the day, or are you referring back to progress notes you've taken during the day?‑‑‑I use – I've got a pad with me and I usually just jot it down there, because, you know, there's a lot of stuff going on per shift, so if you've jotted it down it makes it a little bit easier for you to – when you have to do that.


So you jot it down, and then you pull your pad out and type it in?‑‑‑Yes.


If I can ask you to go to paragraph 80?‑‑‑80, yes.


I'm almost finished, Ms Power.  You talk about 'occupational violence?'---Yes.


When you use the word, 'violence', are you talking about being assaulted?‑‑‑Yes.


You say in 81:


Most shifts I would suffer some sort of altercation or violence.

***        DIANNE MARY POWER                                                                                                                XXN MR WARD


So I take it you're saying you were assaulted every shift?‑‑‑Not every shift but there's always yelling around you or there's people being resistive or there's, you know, you've – there's always – because you're dealing with a lot of people that have got a lot of mental health problems, you know, there's always something, you know, going on during the shifts.  But then again, if you don't get one good laugh out of a shift that's as well.


I'm just trying to understand your – so you include – in the word, 'violence', you include being shouted at or somebody being aggressive?‑‑‑They walk up to you and they're right against your face and they're yelling and spitting on you, I reckon that's - - -


No, I'm not – I wasn't trying to suggest they weren't doing that?‑‑‑No.


I'm just trying to understand what you meant by violence?‑‑‑Yes, well, yes, I considered it violent anyway.


Have you ever found yourself in a position where you felt unsafe?‑‑‑Yes, I have a couple of times.


What's the procedure at Regis Whitfield if you're unsafe?  Is the procedure that you have to remove yourself from the situation?‑‑‑Absolutely, yes.


Have you done that?‑‑‑Yes, yes.


Is the procedure then to call the registered nurse?  What's the procedure?‑‑‑Yes, call the registered nurse and make sure, you know, usually, you know, your other fellow workmates will come and give you a bit of a hand.  There's an emergency button that you press and a staff assist button.  So you press that staff assist button to get assistance as fast as you can.


Ms Power, thank you very much for your evidence.  No further questions, Commissioner?‑‑‑Thank you.


COMMISSIONER O'NEILL:  Any re-examination?


MR McKENNA:  Yes, thank you, Commissioner.

RE-EXAMINATION BY MR MCKENNA                                           [2.19 PM]


MR McKENNA:  Ms Power, you were asked about ACFI reporting?‑‑‑Yes.

***        DIANNE MARY POWER                                                                                                         RXN MR MCKENNA


And how much time that takes.  In response to that you referred to a figure of 20 minutes.  Do you recall that evidence?‑‑‑Yes.


Can I ask you, is that 20 minutes - - -?‑‑‑Solely for ACFI.  Solely for ACFI.  Not for your other documentation.


Is that in total per shift, that's your estimate?‑‑‑Would be longer on – you know, it just depends on what you have to document.  I mean, sometimes there's not much to document so, you know, it takes a little bit less time but it is very time-consuming and to tell you the honest truth nine times out of 10 you're doing it in your own time because you don't have, you know, there's no – you're so busy generally.


You were also asked questions about complex care tasks and changes that had occurred since 2012?‑‑‑Yes.


One of the things that you had referred to, I think was cleaning SPC sites.  Can you please just explain what an SPC site is?‑‑‑It should be (indistinct) but anyway it's a tube that actually goes into their bladder through their tummy, so you've got to make sure that that's kept clean and we usually apply betadine to it and then put some combine over the top of it and then put a piece of bandage on it to make sure that it just sticks on and stays where it is so that it doesn't get irritated by the pads.  And you've got to make sure that if they've been incontinent then you've got to make sure that that site is clean and dressed properly.


Does SPC stand for suprapubic catheter?‑‑‑Yes, I think so.


Thank you.  Then, finally, you were asked about procedures if you found yourself in an unsafe situation and you were asked whether you had ever had cause to remove yourself and you said that you had.  Could you explain the circumstances where you felt unsafe and felt you needed to remove yourself from harm?‑‑‑You know, we've got a nice six foot one, six foot two, gentleman with dementia that decided that he wasn't going to stay in his room or do whatever he needed to do in the bathroom, and tried to physically assault me, you know, because he didn't want me to do his cares or didn't want me to take him out of the bathroom.  Anyway, he sort of blocked the doorway and I felt very, very – I thought, mate, I'm in trouble here.  So I had to quickly, you know, ring the assistant's bell and just make sure I kept out of his way until, you know, the girls go to me.  So and, I mean, I've had one chap that was just really, just completely lost it and threw a chair through a window and we had to call the police and it was pretty scary.

***        DIANNE MARY POWER                                                                                                         RXN MR MCKENNA


Thank you, Ms Power.  I understand that you have a shift that is about to start.  Commissioner, might the witness be excused?‑‑‑Okay, thank you so much.


COMMISSIONER O'NEILL:  Ms Power, thank you very much for your evidence.  You're excused and may go?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                             [2.22 PM]


MR McKENNA:  Commissioner, I'm glad to see that Ms Hofman is now waiting in the lobby and Mr Hartley will be taking that witness.




MR GIBIAN:  Sorry, Commissioner, just before Mr Hartley commences with this witness, I just thought I'd mention, the witness who we had this afternoon, Mr Mills, we really do need him to be dealt with this afternoon.  I mean, I'm sure the ANMF is in the same position but he has travelled to be in the HSU offices in order to give his evidence and really has to do it in that manner, so we would want him to be dealt with this afternoon if that can be accommodated at all.  I just - - -


COMMISSIONER O'NEILL:  Have you had any discussions with the ANM about that?


MR GIBIAN:  Not since earlier or since yesterday or earlier this morning, I think, but obviously things have progressed a little more slowly than we might have hoped but I just thought I'd raise that at this point and maybe after this witness or the one after that, depending on how we're going, if we could try and fit in Mr Mills, we would be most grateful.


COMMISSIONER O'NEILL:  Do you have any difficulty if we slot in Mr Mills after Ms Hofman, Mr Hartley?


MR HARTLEY:  Commissioner, the difficulty for us is that all of our witnesses are in exactly the same position.  They've all gone to branch offices and other places with a view to giving evidence today.  This is the day that we line them up for well in advance.  I'd be hesitant to say that we should slot Mr Mills in directly after Ms Hofman but I can have some inquiries made and maybe there is a point later in the afternoon or maybe there isn't but I might leave that to my instructor to liaise with Mr Gibian.

***        DIANNE MARY POWER                                                                                                         RXN MR MCKENNA


COMMISSIONER O'NEILL:  If you can and let me know.  I mean, there's no chance that we're going to get through all the witnesses that are listed for today, it seems to me, so there's going to have to be some consideration to be some consideration as to how you want to deal with that.




COMMISSIONER O'NEILL:  We'll proceed with Ms Hofman and revisit that.  Ms Hofman, it's Commissioner O'Neill, can you hear me all right?


MS HOFMAN:  Yes, loud and clear.


COMMISSIONER O'NEILL:  My associate is just going to have you take the affirmation.


THE ASSOCIATE:  Ms Hofman, can you please say your full name land work address?


MS HOFMAN:  My name is Jocelyn Hofman and I work in Boddington Aged Care Facility.  The address is number 6 Boddington Drive, Wentworth Falls, New South Wales 2782.


THE ASSOCIATE:  Thank you.

<JOCELYN HOFMAN, AFFIRMED                                                   [2.25 PM]

EXAMINATION-IN-CHIEF BY MR HARTLEY                               [2.25 PM]




MR HARTLEY:  Ms Hofman, it's Jim Hartley for the ANFM speaking.  Can you hear me?‑‑‑Yes, I can hear you.


Thank you.  Could you just restate your name, please?‑‑‑My name is Jocelyn Hofman.


You're a registered nurse at the Boddington Aged Care Facility?‑‑‑Yes.

***        JOCELYN HOFMAN                                                                                                                   XN MR HARTLEY


Could you just give the address of that facility one more time?‑‑‑Number 6 Boddington Drive, Wentworth Falls, New South Wales 2782.


You've made a statement in this proceeding dated 29 October 2021?‑‑‑Yes.


Have you got a copy of that with you?‑‑‑Yes.


Can you just see that that's a statement of 49 paragraphs over nine pages?‑‑‑Yes.


Following that you've annexed a copy of the enterprise agreement?‑‑‑Yes.


Could you please go to paragraph 44 in your statement?‑‑‑Yes, yes.


At the third line do you see where it says, 'Record residents' temperatures twice daily'?‑‑‑Yes.


Is it the case that that word, 'twice', should be removed so that it says, 'Record residents' temperatures daily'?‑‑‑Because we have an outbreak now in the facility, we – it's gone back to twice daily again.


It's back to twice daily again?‑‑‑Yes, yes.


Okay?‑‑‑Because we have an outbreak right now.


Thank you, Ms Hofman.  In that case, is the statement - I'm sorry, have you had an opportunity of reading your statement recently?‑‑‑Yes.


And is the statement true and correct to the best of your knowledge and recollection?‑‑‑Yes.


Commissioner, that's tab 221 at page 11,778 of the court book.


Ms Hofman, can you see Mr Ward on your screen?‑‑‑Mr Ward, I've got (indistinct) Commissioner O'Neill, Georgia Steel on the right and it says the custom L11 conference at the bottom where you're speaking, that - the window there.

***        JOCELYN HOFMAN                                                                                                                   XN MR HARTLEY


So, you can see a gentleman wearing a blue jacket.  I think he was holding his hand up a moment ago.  He's holding his hand up again.  Can you see Mr Ward?‑‑‑Behind you?


No, no, he's in a separate box than me?‑‑‑No, I cannot see him.


I might ask if someone on your end can re-arrange the screen?‑‑‑Okay, I'll go outside and call someone?


Ms Hofman, Mr Ward will now ask you some questions?‑‑‑Okay.


Thank you?‑‑‑Thank you.

CROSS-EXAMINATION BY MR WARD                                           [2.29 PM]


MR WARD:  Ms Hofman, can you hear me okay?‑‑‑Yes, I can hear you, Mr Ward.


Thank you very much.  My name is Nigel Ward, Ms Hofman. I appear in these proceedings for the employer interest, and I'm just going to ask you some questions.  Have you got your statement in front of you?‑‑‑Yes, I do.


Ms Hofman, I'm going to try and not keep you very long, so just bear with me?‑‑‑Okay.


I just want to just understand a little bit first of all about your role?‑‑‑Yes.


You say in your statement that you're a registered nurse, but you also indicate that sometimes you are in charge?‑‑‑Yes.

***        JOCELYN HOFMAN                                                                                                                      XXN MR WARD


Can you explain to me what 'in charge' means?‑‑‑Yes, in the afternoon shift - because the one who used to be in charge has already left, so I've taken her place.  So, the whole nursing home is 120 bed facility, so there's hostel wing, there's three houses there, and in the nursing home where I work there's two wings downstairs, and upstairs there's another two wings.  When they said you're in charge that means you're in charge - if there's any issues that may arise in all the wings, the registered nurse who is on those areas will ask me for advice.  Also being in charge is I have a phone in my pocket, the residential manager will give me a call and say, 'So and so is sick, so can you replace her or him?'  So on top of me looking after my two house - two wings, I also am in charge now of replacing people who are sick or, yes, needs replacing for the next shift, or - yes, because I'm in the afternoon, like, the next shift whatever it is ‑ ‑ ‑


Okay, so, when ‑ ‑ ‑?‑‑‑And also so that one ‑ ‑ ‑


Yes, keep going, sorry?‑‑‑Yes, that's what being in charge is, you're responsible for the whole facility if there's any issues, like, if there's maintenance issues as well, those registered nurses then will relay it to me or if someone gets hurt in the wing, then they will also (indistinct) me because I'm the one who will then notify the residential manager who is on-call and say, 'So and so got hurt, and is filling an incident form', things like that.  So, I'm like the manager of the facility for any issues.


Okay.  So when you're not in charge I take it there's a manager in charge?‑‑‑During the week there is - the residential manager finishes at 4 o'clock, but they leave at 4 so then I'm in charge.


And you say at paragraph 21 of your statement you're paid an allowance for that.  Is that allowance a daily allowance or a weekly allowance?‑‑‑That allowance is when you're in charge, so ‑ ‑ ‑


So if ‑ ‑ ‑?‑‑‑‑ ‑ ‑it's always depending on if you are the one who is in charge of the whole facility.


That's fine, but are you paid that - is it $44 a day, $44 an hour, what is it?‑‑‑Forty-four dollars for the whole shift.


For the shift?‑‑‑Let me just have a look.  Yes, $44 for the shift.


Shift, okay?‑‑‑Yes.


That's okay?‑‑‑In charge of the facility, so that's just $44.79 there's nothing extra.  That's just for being in charge of the facility.


That's okay, yes?‑‑‑Yes.


Now, you have enrolled nurses working ‑ ‑ ‑?‑‑‑Sorry, another extra thing as well that I do now is I do COVID screening of visitors.

***        JOCELYN HOFMAN                                                                                                                      XXN MR WARD




You have enrolled nurses working for you?‑‑‑We have one enrolled nurse who starts work from 8 o'clock in the morning till 5 in the afternoon.  So after 5 o'clock - and this enrolled nurse, because I work in the nursing home is, like, in the past we had two enrolled nurses, one upstairs and one downstairs who helped the RN, but now they cut it down now to one enrolled nurse for the four wings of the nursing home, so usually they call me upstairs, so I'm really in charge of the two wings and I'm doing the medication of both wings, because the enrolled nurse helps upstairs.


So, bear with me.  Does that mean the enrolled nurse doesn't work under your supervision?‑‑‑Because I start work at 2, so I've only got her from 2, 3, 4, 5, three hours that we're sharing this enrolled nurse between the four wings.


Okay.  And ‑ ‑ ‑?‑‑‑So, she usually, like, helps upstairs, but there's only one.


That's okay.  And other than that you've got personal care workers reporting to you?‑‑‑Yes.  Yes.


And you said there's a nursing home and a hostel?‑‑‑Yes.


Do you normally work in the nursing home or the hostel?‑‑‑I work in the nursing home downstairs.


What ‑ ‑ ‑?‑‑‑And there's one to 20 on one wing, and the other is the dementia units of the residents, that's the (indistinct) house.


What type of residents are in the hostel?‑‑‑They're supposed to be, like, low care but I think they're high care now.


Is that your diagnosis, or is that a general practitioner's diagnosis?‑‑‑I don't really work there, so I cannot really comment accurately on the hostel, because I work in the nursing home section.


That's okay?‑‑‑Yes.


Am I right that by the sound of it you do all the medications?‑‑‑Yes, downstairs.

***        JOCELYN HOFMAN                                                                                                                      XXN MR WARD


Do you do Schedule 8 medications and Schedule 4 medications?‑‑‑Yes, all the medications.


In your facility personal care workers don't administer medications?‑‑‑No, not in downstairs in the nursing home section.  Registered nurses and (indistinct) nurses administer medications, but in the hostel they have medcomp personal care workers who administer medications there.  I cannot tell you much, because I don't work there much because I don't feel comfortable working in the hostel in that kind of arrangement.


No, that's fine.  I won't ask you to answer questions you're not comfortable with?‑‑‑Yes.


Are you the person who writes the resident's care plan for the nursing home?‑‑‑We share it between all the registered nurses who work on the floor, because nursing care plans involve assessments, so registered nurses put issues there that are applicable to that resident, but we all - it's a shared one where everyone puts in inputs.


You share that between the registered nurses, do you?‑‑‑Yes.  Yes.


And in terms of if a resident has a fall in your facility, what's the procedure that has to be followed?‑‑‑Right, if a resident had a fall, the personal care workers call the registered nurse, because we have to assess the resident.  We monitor for any signs of pain, check the movement of the resident for any signs of fractures or dislocations.  If there's no apparent injury and the resident is able to mobilise all his limbs there is no sign pain, verbal or non-verbal indications of pain, they're alert, there is no lump on their head or that they're not in any distress at all and they're moving, moving their own limbs without any guiding, then we say – then I then give the go that we will transfer that resident back to bed, and in that time we will be monitoring their blood pressure, pulse, temperature, neurological observations like the pupil reaction, the movement of their limbs, and also signs of pain for the whole day, 24 hours monitoring that there's no – any change, because anything can happen within the period.


So you - - -?‑‑‑Especially the dementia unit when they cannot express themselves, or articulate the pain, we have to be very – we will be monitoring that resident.

***        JOCELYN HOFMAN                                                                                                                      XXN MR WARD


So you'll decide whether or not they can be moved and what happens with them, yes?‑‑‑Yes, because especially the residents in the dementia unit, they cannot articulate that my hip is sore or whatever; even if they broke their hip, they still attempt to stand up.  So, it's up to the assessment skills of the registered nurse to say, no, there's something wrong, our resident's not behaving like usual, we've got to keep an eye on it.  Then I initiate procedures like why is he or she falling.  I will be collecting a urine specimen and see if there's any signs of urine infection, and things like that, or if they're diabetic, check their blood glucose level, see if that's the cause of the fall, if their blood pressure has to go down.  So it's a very – we use our skills as a nurse to see what's wrong with our residents.


So if I've had a fall, you stabilise me, you put me back into bed – you'll determine - - -?‑‑‑(Indistinct) – sorry.


Just let me ask the question, if you can?‑‑‑Sorry, sir.


That's okay.  You'll determine how I'm to be observed for the rest of the day?‑‑‑Yes, we will monitoring that resident, because sometimes the pain will be like – if they had a fracture, sometimes they – you have to monitor that resident, also the positioning of the legs, if it's a broken hip, (indistinct) the limbs or something.


If I'm a personal care worker working with you and I noticed that there was a skin tear, am I required to tell you about it?‑‑‑Yes.  Sorry, start again – if the - - -?


If I'm a personal care worker and I was working with a resident and I noticed a skin tear, am I required to notify you as the registered nurse?‑‑‑Yes, very important, because I've got to dress that wound, because sometimes when you have fragile skin, the skin rolls back and it's good that they report it to me straightaway so I can then dress it and put the skin back to its original anatomical position and dress it.  So it's very important that I get notified, and I could provide family intervention to it.


If I was a personal care worker and I observed bruising or sores, would I also notify you?‑‑‑Yes.  Very important, because I've got to monitor why they're bruising, have they been hurt – yes, I've got to monitor why they're bruising, and then report it to their doctor, because sometimes when they're on anticoagulants they bruise easily as well.  So yes, all those changes in skin conditions the personal care worker reports to the registered nurse so can provide family intervention.

***        JOCELYN HOFMAN                                                                                                                      XXN MR WARD


Am I right that if you observe – let's say I'm a resident and I had a skin tear, I understand that's described as an 'adverse event' that you've got to record in writing?‑‑‑Yes.  Very important.  We put that as an incident report.  Even unwitnessed falls, we've got to put an incident report with that, and with that comes notifying the doctor and meeting the relatives about it, and - - -


And that's your job?‑‑‑Yes, and notify the physiotherapist as well to assess their mobility, because their mobility may have deteriorated and they need a walking frame or whatever.  So the physios help us as well putting, like, what needs to be done.


If one of your residents passed away, is it your job to notify the family of the death?‑‑‑Yes.  So first thing, like, if it's after hours our resident passes away, we fill in like a temporary assessment form, get another registered nurse from another floor and we both assess the resident.  We feel his heartbeat.  So the two of us fill that in, and also notify – yes, notify the family and notify the doctor.


I'm right, aren't I, that at all times you're working within your scope of practice as a registered nurse?‑‑‑Yes.


Thank you very much?‑‑‑Thank you.


No further questions, Commissioner.


COMMISSIONER O'NEILL:  Any re-examination, Mr Hartley?


MR HARTLEY:  No, there's no re-examination, Commissioner.  Thank you, Ms Hofman.


COMMISSIONER O'NEILL:  Ms Hofman, thank you very much for your evidence.  You're excused and free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                             [2.43 PM]


COMMISSIONER O'NEILL:  All right, Mr Hartley – so Ms McLean?


MR HARTLEY:  Yes, and that's Mr McKenna's witness, Commissioner.


MR McKENNA:  Thank you, Commissioner.  I understand that Ms McLean has been contacted and hopefully will be joining the hearing momentarily.

***        JOCELYN HOFMAN                                                                                                                      XXN MR WARD


COMMISSIONER O'NEILL:  Just as you said it.  Ms McLean, it's O'Neill.  My associate is just going to have you take the affirmation.


THE ASSOCIATE:  Ms McLean, can you please say your full name and work address?


MS McLEAN:  My full name is Patricia McLean, and I work for the Queensland Nurses Union, which is at 106 Victoria Street, West End in Brisbane.

<PATRICIA MCLEAN, AFFIRMED                                                   [2.43 PM]

EXAMINATION-IN-CHIEF BY MR MCKENNA                              [2.44 PM]




MR McKENNA:  Thank you, Commissioner.  Ms McLean, Jim McKenna here, counsel for the ANMF.  Can you see me?‑‑‑I can see you.


Obviously you can hear me, which is good news?‑‑‑Yes.


Could I ask you to please restate your full name?‑‑‑My full name is Patricia McLean.


As you've indicated, you're currently employed by the Queensland Nurses and Midwives Union?‑‑‑That's correct.


Can you repeat that address, please?‑‑‑106 Victoria Street, West End, which is in Brisbane, Queensland.


Thank you.  You are an enrolled nurse?‑‑‑I am an enrolled nurse.


And until July last year you were employed by Blue Care working in community care, is that correct?‑‑‑That's correct.


Have you prepared a witness statement for the purpose of these proceedings?‑‑‑I have.


You have a copy of it with you?‑‑‑I do.

***        PATRICIA MCLEAN                                                                                                                  XN MR MCKENNA


Could I please ask you to confirm that it is dated 29 October 2021, and I think you will find that date on page 19?‑‑‑It is.


Whilst you're there, can you confirm that it runs to 127 paragraphs over those 19 pages?‑‑‑It does.


And do you have the three annexures to your statement as well?‑‑‑I do.


Have you had a chance to read the statement recently?‑‑‑Yes.


Commissioner, there are a large number of very minor typographical errors.  I've counted 20.  A lot of them relate to the insertion of full stops.  What I propose to do, subject to your view and Mr Ward, is to file a revised version, and we can either file two versions, one marked up, or file a clean Word document under cover of an email that identifies those changes, but I don't think it would be in anyone's interest to have Ms McLean take the Commission through each of those.


COMMISSIONER O'NEILL:  No, I agree.  If you file an amended one, but perhaps provide Mr Ward with a tracked version so that he can clearly see the changes.


MR McKENNA:  Certainly.  We'll do that.  There is one substantial change though I think, subject to what Ms McLean might say.  Ms McLean, could I ask you to turn to paragraph – forgive me.  Have you had a chance to read the statement recently?‑‑‑Yes.


Could I ask you to turn to paragraph 57, which is on page 9?‑‑‑Yes.


I understand you're there talking about schedulers and filling gaps in your schedule.  I understand that you'd add at the end of that paragraph:


Schedulers were not always able to fill the gaps if no further client visits were required for that day.


Is that correct?‑‑‑Yes, I would like that added, if I could, please.


You've heard my discussion with the Commissioner about those typographical changes?‑‑‑Yes.

***        PATRICIA MCLEAN                                                                                                                  XN MR MCKENNA


Subject to those changes are there any other corrections or clarifications you'd wish to make to your statement?‑‑‑No.


Are the contents of your witness statement, subject to that one change you've identified in paragraph 57 and some other typographical changes, true and correct?‑‑‑It's all true and correct.


Have you had a chance to review the three annexures to your statement as well?‑‑‑I have.


Are they true copies of the documents that you refer to in that statement?‑‑‑Yes.


Commissioner, this statement can be found at document 226, page 11,936 of the electronic court book.


Ms McLean, in addition to seeing me, can you also see on the screen in front of you Mr Nigel Ward who's holding his hand up?‑‑‑Yes, I can, yes.


Mr Ward will now have some questions for you?‑‑‑Thank you.

CROSS-EXAMINATION BY MR WARD                                           [2.48 PM]


MR WARD:  Can you hear me okay?‑‑‑I can and I can see you okay.


Lovely.  Sorry, I should just ask is it McLean or McLean?‑‑‑It's McLean.


McLean.  Ms McLean, do you have your statement in front of you?‑‑‑I do.


I think you said at the beginning when you were being sworn in, you now work for the union, do you?‑‑‑Only one day a week.


What job is that?‑‑‑I work as what's called a member organiser, so I'm not sure if you're familiar with what an organizer does but it's mainly just talking to other nurses to make sure they're informed with what's happening in their workplace.


Is that in the homecare sector or in a different sector?‑‑‑Aged care.

***        PATRICIA MCLEAN                                                                                                                      XXN MR WARD


Aged care.  Can I just start with Blue Care.  I'm right that at all times when you worked for Blue Care you were working as an enrolled nurse, aren't I?‑‑‑Yes, you're right.


In your statement you talk about reporting to a clinical care coordinator.  Did you report to a clinical care coordinator the whole time you were there?‑‑‑Yes, only the title used to be different, it used to be clinical nurse consultant and then they changed the title to clinical care coordinator.  Because I was an EN I was always buddied up with the registered nurse, so there would be an RN that I would consult with first and foremost but if she wasn't available then I would have to ring the office and that's when we used to have clinical nurses in at the office which were level 2 registered nurses, and I could usually ask them for advice or whatever it was I needed to ask, and then when they made the RNs in the office redundant, the only person I had to contact was the clinical care coordinator.


I just wouldn't mind going through that slowly if I can do it to make sure I've got it?‑‑‑That's okay.


You said at the beginning that you were buddied up with an RN?‑‑‑Yes.


Sorry, help me out, what do you mean by buddied up with an RN?‑‑‑Well, because I was an EN I'm supposed to work under the direct or indirect supervision of a registered nurse.


Yes?‑‑‑So if I was sent into a client where there was an issue that I didn't that I knew exactly what I was supposed to be doing with her or him, I would then phone the registered nurse that was allocated to me and that was provided we both worked on the same days because sometimes she didn't work on a day that I worked and other times I didn't work on a day that she worked.


Yes?‑‑‑But when were both working the same days I could phone her and ask her what she wanted me to do with that particular client.


If I can just make sure I understand that, you were obviously working within your scope of practice?‑‑‑Yes.


If something came up that you thought might be outside of that or you needed a second opinion - - -?‑‑‑Yes.

***        PATRICIA MCLEAN                                                                                                                      XXN MR WARD


- - - you would refer that to the registered nurse you were buddied up with if she was working that day?‑‑‑Yes.


Then you said – bear with me, you then said you had clinical RNs, I think you said, at the head office?‑‑‑Well, not so much the head office.  Each branch has their own office that they tend to work out of.  So when I first started with Blue Care we worked out of an office at Milton and then that closed down and we worked out of an office at Everdeen Hills.


Yes?‑‑‑Then that closed down and the main office became at Sandgate because they amalgamated with the branch at Sandgate.  However, they did have, like, a sub-branch office at Ashgrove Respite Centre which is where the clinical care coordinator was based.


Okay?‑‑‑But the RNs that I used to phone were based at Sandgate.


The RNs were separate to the clinical care coordinator?‑‑‑Yes, only because of office space.


Okay but you used a phrase a minute ago, you said a clinical RN, is that somebody different or not?‑‑‑Yes because they were a level 2 registered nurse.  I would be buddied up with a level 1 registered nurse.


Right?‑‑‑So the level 2 was the next line up.


It might not have been – so sometimes where you were going you might have to ring one person or another but do I take it you - - -?‑‑‑Depending on who I could get hold of on the day.


That's what I thought.  Okay?‑‑‑Yes.


But you were always working within your scope of practice and there was always a registered nurse of some description you could contact if you required them?‑‑‑Yes, yes.

***        PATRICIA MCLEAN                                                                                                                      XXN MR WARD


When you went into – sorry, when you went into premises of a client, were you called in by the personal care worker or were you doing work activities that were sort of independent and to the side of the personal care worker?‑‑‑My work was generally independent to a personal carer.  When I first started with Blue Care part of my role was to designate care so that if – because we did more what I called holistic nursing in those days.


Yes?‑‑‑In that we would go in and we would make an assessment of the client's needs and even though the actual nurses themselves might be going in for wound care, we might then put into place for that client to have some assistance with showering to try and keep the wound dry, so we would delegate that care to a personal carer.  However, by the time I finished at Blue Care the system had changed in that we didn't do that sort of thing anymore, the nurses mainly just did the nursing tasks.


I just want to step through a few things you said there.  I assume that at Blue Care it was the registered nurse who wrote the care plan for the client?‑‑‑Not initially.


That was you, was it?‑‑‑When I first commenced with Blue Care, I did all of that sort of thing.  It was only over a course of years as Blue Care policy changed, then a lot of the things that I did when I first started with Blue Care, I was no longer able to do.


Initially you wrote care plans but then an RN started to write them?‑‑‑Yes.


Do you understand why that changed?‑‑‑Because I think it was something to do with AHPRA.  I think AHPRA might have made sure that it was a little bit more tightened up than what it was when ENs - - -


When you started?‑‑‑ - - - first started doing the job.


When you finished the job care plans had to be written and authorised by a registered nurse?‑‑‑That's correct.


Could I just take you to medications.  Am I right – and tell me if I'm not – were you involved in administering Schedule 8 medications?‑‑‑Yes.


You're going to have to help me out, my understanding was that a registered nurse has to administer Schedule 8 medications.  Do you understand why you were allowed to do that?‑‑‑Because in some cases the Schedule 8 medication was packed in the Webster pack already for the client, so it was a case of just making sure that they were taking that medication themselves.

***        PATRICIA MCLEAN                                                                                                                      XXN MR WARD


Right?‑‑‑In other times it was a case of applying a Norspan patch but in those cases the client always knew what they were supposed to be having, it was just a case of them asking you to assist to put it on.


I see and just so I understand that, so in relation to, say, an Endone pill being in my Webster pack, you were effectively being the medication prompt rather than administering the medication?‑‑‑Yes, pretty much, yes.


Yes, okay, and in relation to the patch I take it that's a morphine patch or something like that?‑‑‑Yes, yes.


You weren't – how did you assist the client with that?‑‑‑Well, because the one lady in particular, because I didn't do that a lot.  A lot of people that I saw didn't have those patches but the one lady that I did assist, I used to actually – because it comes in like an Alfoil packet, I used to cut the Alfoil packet off.  I would take the old one off her before helping her to put the new one on.  But because most of them wanted them on their upper arms, they couldn't always reach because their arms were too stiff.


That was, as it were, her medication, it was her patch and you were just physically helping her put it on in to replace it?‑‑‑Correct.


Yes, I see.  I see.  In terms of wound care, if you were with a client and you noticed a tear, what was the procedure you had to follow?‑‑‑The procedure I had to follow was I was required to clean it and dress it while I was in the home.  Generally that meant just using whatever the client had in the home.  I was informed after I left Blue Care that the policy had changed and I should by rights ring and get an RN to tell me what to put on.  However, up until the last day of my working life I had not been told that.  I had always just dressed wounds to, you know, the standard that I knew that was required.  I had often over the course of my 12 years had support visits with my team leader, who had shown me what to do, how to do things, and a lot of the wounds that I attended to in community were quire severe wounds.


So, are you telling me there that you acted under the delegated authority of the RN, or are you telling me there you did it because you were competent to do, what are you actually saying?‑‑‑Blue Care's position with me when I started was that I could do exactly the same as what the RNs did except for syringe drivers and IVs.

***        PATRICIA MCLEAN                                                                                                                      XXN MR WARD


Right?‑‑‑So, they taught me wound care, and, so, it was probably a combination of competency and the fact that, like, there'd be times where I would be sent to do a new admission and that new admission would include wound care.  Sometimes the hospital would have sent a wound pathway home with the client, sometimes not, and, so, sometimes it was the case of looking at that wound and making a decision as to what you thought needed to be used on that particular wound.


I think you've just said that it's your understanding that the RN now has to be involved in that?‑‑‑Yes.


And is ‑ ‑ ‑?‑‑‑Yes, my understanding is even if it's a simple skin tear, ENs now - well, not that Blue Care has ENs in the community any more, but when I left I was then told that ENs had to phone the office and speak to a registered nurse to find out what to do with that wound regardless of what my knowledge was.


I think you described that early on as Blue Care tightening up.  Is that ‑ ‑ ‑?‑‑‑I think that's part of the issue, yes.  I think they took an attitude that if ENs in residential care couldn't do it, then the ENs in community couldn't do it.


Okay.  Now, I take it that if you were with a client, by way of example, they started to have shortness of breath, was there a procedure ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑you had to follow in that sort of emergency?‑‑‑In that sort of procedure what I would have done is phoned somebody from the office, one of the registered nurses or my registered nurse, and find out what they want me to do.  In most cases if it seemed that it was something outside what could be treated in the home, then my responsibility was to call an ambulance.


Okay.  And I take it ‑ ‑ ‑?‑‑‑Providing the client agreed with that.


Which they didn't always do?‑‑‑Didn't always do.


And if they didn't do that, what were you required to do?‑‑‑Normally my requirement was to document it and contact the next of kin.  However, I had been informed shortly before I left Blue Care that the policy now was that we were supposed to go out to our car and call the ambulance on the quiet ‑ ‑ ‑


Anyway ‑ ‑ ‑?‑‑‑‑ ‑ ‑out in our car.  And then let the ambos deal with the noncompliance.

***        PATRICIA MCLEAN                                                                                                                      XXN MR WARD


I take it at the end of each shift you would make progress notes or record what you'd done?‑‑‑When I first started with Blue Care we would see clients between 7 and 1 in the morning, and then we would go back to the office and do our paperwork in hard copy folders.  But once it became electronic files and we were working more remotely, we were then instructed to do our paperwork while we were in the home with the client.  That was so that the client could see how much time we were actually spending on their care.


And when you made those entries ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑can you give me an example of what sort of entry you might've made?‑‑‑Well, for example, if and when I've had a client fall on the floor, then I would need to document in there how I found her, whether she was still on the floor when I got there, or whether she'd managed to get herself up, what signs and symptoms I'd seen when I arrived, whether there was, you know, smoke coming out of the kitchen or whatever.  You have to document what's called exceptional incident, so, it's not like you wouldn't say, 'Yes, the client has had a shower today' if she's had a shower every day.


You wouldn't do that?‑‑‑No.  No.


It's the exception ‑ ‑ ‑?‑‑‑Because that should be part of the care plan.


Okay?‑‑‑All right.  It would only be if she refused to have a shower that then you might put in that, 'She declined to shower today because she wasn't feeling well'.


So, if they took their meds, that's fine, but if they refused to take their meds, you might record that?‑‑‑Exactly.


I think you used the phrase it was an exception report, rather than ‑ ‑ ‑?‑‑‑Well, they call it exceptional reporting, so, it means that it's different to what the care plan actually says.


Okay.  So, if something occurs outside of the care plan is when you have to record it?‑‑‑Yes.


I think you say in your statement - bear with me, I can't quite recall where, but I think you say in your statement that Blue Care didn't do a risk assessment of the home before people went into it.  Is that right?‑‑‑No, I didn't say that.  They always have ‑ ‑ ‑

***        PATRICIA MCLEAN                                                                                                                      XXN MR WARD


My apologies.  You're about the seventy-fifth statement I've read this week - in the last week, but ‑ ‑ ‑?‑‑‑Yes, the policy with Blue Care is that they always did what they called an environmental assessment, and that was a particular form that you completed, which was to say it was safe for the staff to go into the home.  When I first started at Blue Care one of my tasks was to do hazard assessments, like if a PC reported back to the office that somebody had a hole in their lounge room floor, then it was up to me to go out and to see how we could make the situation safe, whether the client or the family were prepared to rectify it.  You know, some clients are hoarders, so it'd be very difficult to get into some people's homes.  So, it would be up to me to say, well, okay, maybe the PC could still visit so long as they only went in the front door and met the client at the front verandah rather than go through the whole house.  So that was part of what I did initially for workplace health and safety.


That's fine.  And I take it that the hazard assessment was different to the environmental assessment?‑‑‑Yes, because the environmental assessment was just mainly things like if someone had a key safe, we often had that number so that if the client didn't answer the door we could get in.  If it was a case that the front stairs were broken, but the back stairs were safe, we would say, 'Well, yes, you enter via the back stairs', so that people knew that it was safe to enter that home.  Every home had to have a smoke alarm functioning so that was part of that tick sheet on that environmental assessment form.


And, Ms McLean, did you do the environmental assessments or just the hazard assessments?‑‑‑Whenever anybody does an admission process, whether it be me or whoever does the admission, they have to complete the environmental assessment on the very first visit.


Okay.  And is that fed in then to the care plan?‑‑‑Yes.  So because of the devices we ended up using, you could generally go into the phone and look up that client and see whether, you know, you needed to phone them first before you visited or whether, you know, you used the key safe to enter, because if people's mobility was bad they couldn't always get up to open the door, so, you needed to know what you needed to do when you arrived at that person's house.


And that - I think you're describing access and that on an app on a phone, are you?‑‑‑Yes, only it wasn't Apple.


Yes, okay.  It can't always be Apple.  If you ever found yourself in a house and you felt unsafe, was there a procedure you were required to follow?‑‑‑If ever I found myself unsafe, which was very, very rarely, the procedure is that you have the right to leave that premises as soon as possible, and ‑ ‑ ‑

***        PATRICIA MCLEAN                                                                                                                      XXN MR WARD


Have you done that?‑‑‑No.  There was a gentleman I visited once who locked the door behind me when I was doing a late shift, and he obviously had been drinking, but he wasn't threatening, so, like, I just did what I needed to do, which was to supervise his medication and then I left as quickly as I could, yes.


Just a moment, Ms McLean?‑‑‑Yes.


Ms McLean, thank you for your evidence, no further questions?‑‑‑Thank you.  Are you right if I go now?


COMMISSIONER O'NEILL:  Just a minute?‑‑‑Okay.


Any re-examination, Mr McKenna?


MR McKENNA:  No re-examination, Commissioner.  Might Ms McLean be excused?




MR McKENNA:  And I apologise to Ms McLean for mispronouncing her name as well.


COMMISSIONER O'NEILL:  Ms McLean, thank you very much for your evidence this afternoon.  You're excused and free to go?‑‑‑Thank you, bye.

<THE WITNESS WITHDREW                                                             [3.07 PM]


MR McKENNA:  Commissioner, the next witness is Ms Hardman and Mr Hartley will be leading that witness.




MR HARTLEY:  I'm told she'll be in momentarily.  I'm sorry to everyone for the delay.


COMMISSIONER O'NEILL:  Ms Hardman, can you hear me all right?


MS HARDMAN:  Hello, yes, I can hear you.

***        PATRICIA MCLEAN                                                                                                                      XXN MR WARD


COMMISSIONER O'NEILL:  I'm Commissioner O'Neill and my associate is just going to have you take the affirmation.


THE ASSOCIATE:  Ms Hardman, can you please say your full name and work address?


MS HARDMAN:  Linda Hardman, 12 Suttor Place, Figtree.


THE ASSOCIATE:  Thank you.

<LINDA HARDMAN, AFFIRMED                                                       [3.13 PM]

EXAMINATION-IN-CHIEF BY MR HARTLEY                               [3.13 PM]




MR HARTLEY:  Thank you, Commissioner.


Ms Hardman, it's Jim Hartley speaking for the ANMF.  Can you hear me?‑‑‑Yes, I can hear you, Jim.


Great, thank you.  Could you please say your name once again?‑‑‑Linda Hardman.


Your business address?‑‑‑12 Suttor Place, Figtree.


You're an assistant in nursing?‑‑‑Yes.


You made a statement in this proceeding dated 29 October 2021?‑‑‑Yes, I did.


Do you have a copy of that with you?‑‑‑Yes, I do.


Can you see that that's a statement of 83 paragraphs over 11 pages?‑‑‑Yes, I can.


Could you have a look at paragraph 8, please?‑‑‑Yes.

***        LINDA HARDMAN                                                                                                                      XN MR HARTLEY


Is it the case that in paragraph 8 the second line, a few words in you say, 'About four years ago', but do you intend to say, 'About eight years ago'?‑‑‑Yes, that's correct.


Can you look at paragraph 25?‑‑‑Yes.


In the second sentence you say, 'They mainly visit in the evenings and weekends.'  Is it your evidence that families visit at any time of day, including in the evenings and on weekends?‑‑‑Yes, that's correct.


Thank you, Ms Hardman.  With those corrections, is that statement true and correct to the best of your knowledge and recollection?‑‑‑Yes, it is.


Commissioner, that's tab 224 at page 11,898.


Ms Hardman, can you see on your screen Mr Nigel Ward?‑‑‑Yes, I can.


Excellent.  Mr Ward is now going to ask you some questions.

CROSS-EXAMINATION BY MR WARD                                           [3.15 PM]


MR WARD:  Ms Hardman, can you hear me okay?‑‑‑Yes, I can.


Thank you, Ms Hardman.  Ms Hardman, my name's Nigel Ward.  I appear in these proceedings for the employer interests.  Do you have your statement in front of you?‑‑‑Yes, I do.


I wonder if I could ask you to go to paragraph 11 to start with?‑‑‑Okay.


When you did your certificate 3 did you do it because you chose to do it or were you required to do it?‑‑‑No, I chose to do it.


Is that the same for the other certificate 4s?‑‑‑Yes, it is.


Was your motivation for doing the certificate 4 in aged care to simply become more competent at doing the job?‑‑‑Yes, definitely.

***        LINDA HARDMAN                                                                                                                         XXN MR WARD


If you go to paragraph 15, am I right that you've got about a third of your beds unoccupied at the moment?‑‑‑Yes, that's correct.


Is there any particular reason for that?‑‑‑I think they've changed the model.  I think we've gone from – we used to have four people in a room and that's come back down to three.


The majority of the facility has four bedroom – four-bed rooms, does it?‑‑‑Yes, and that's come down to three people in the room instead of four.


Can I ask you to go to paragraph 20.  In paragraph 20 in (c), you talk about transferring residents.  Am I right that if you require two people for a transfer or two people for a lift, or you require equipment for a lift, will that be set out in the resident's care plan?‑‑‑Definitely, and also in the manual handling chart.


Is the manual handling chart a separate chart that will be in the resident's room?‑‑‑It should be in the wardrobe.


So behind the wardrobe door when you open it?‑‑‑Yes.


I take it that will describe the mobility of the resident in the room?‑‑‑Also we have, on the handover sheet that we get in the morning, our shower sheets.


Yes?‑‑‑It's on there, how we transfer.


Can you explain a little bit more what a 'shower sheet' is?‑‑‑It describes to you the amount of residents that you're going to be taking care of that day, and whether they're a hoist lifter, whether they're showered every day or every second day, and things like that.


I take it that you don't always know when you start who you're going to be looking after?‑‑‑No.


Do you normally work in the same section of the facility?‑‑‑Mostly.  I do my day shifts up the front and my afternoon shifts down the back.


Is there an RN on duty on both shifts for you?‑‑‑(Audio malfunction) agency RNs.

***        LINDA HARDMAN                                                                                                                         XXN MR WARD


So there is an RN on duty?‑‑‑Yes, or an EN.


So if there's not an RN there will be an EN on, but there's normally an RN on?‑‑‑Yes.


I sense you're not particularly excited by agency RNs?‑‑‑No, they serve – they do a job; it's just that we've been a bit spoilt over the years where we're used to having a regular RN where you build up a relationship.  I don't know if you'll understand.  There is a huge difference when you've got that relationship with an RN that you have all the time.  That comes back to more of the team aspect.  They know you, they know the residents – yes, it's not – I mean agency, yes, it's good to have them, they do a good job, but when you have a permanent RN or EN, it's all about the relationship.


You have a better rapport, a better familiarity?‑‑‑Yes.  They know you, they know the residents, and they know - for instance, if you need help in an emergency, they know by the tone of your voice, they can actually pick up that you need help and you need it now.


Can I ask you to go to paragraph 21?  You say, 'AINs do not dispense medications.'  Is that solely done by RNs, or do the ENs dispense medications as well?‑‑‑RNs and ENs.


Has that always been the case at your facility?‑‑‑Yes, definitely.


And then in 22(a) you talk about observation skills.  I'd just like to go through a few of those, if I can, and understand the procedure.  Let's say you were showering me in the morning and you noticed that I had a tear in my skin.  What's the procedure you have to follow for that?‑‑‑We have to report it to the RN straightaway.


Okay?‑‑‑Any change, particularly we've got SIRS now, which, you know, everything's got to be recorded, even the slightest little thing.  But yes, that's where the observation skills come in; any skin tears, bruises, anything like that.


So it might be a bruise or it might just be a change in the pigmentation of my skin; that would go the RN?‑‑‑Yes, definitely.


And they would make a decision as to what should happen?‑‑‑Yes.

***        LINDA HARDMAN                                                                                                                         XXN MR WARD


If it was a tear, is it the job of the RN to deal with the wound, or does the EN get involved?‑‑‑Well, depending if you've got an EN around, or the RN – either one will deal with it.


Let's say that the wound's been attended to by the registered nurse.  Going forward, would you possibly re‑bandage the wound?‑‑‑No.


That'd be a job for the RN or the EN?‑‑‑It would be the RN or the EN.


I think you talked about SIRS a minute ago.  My understanding is that a tear in the skin or a bruise will be described as an 'adverse event.'  That's the language, is it?‑‑‑Yes, I think so, yes.


Then it would be – is it the RN's decision as to whether or not it's reported as a SIRS issue, or is it somebody above the RN?‑‑‑No, I'm pretty sure it's the RN.  We're all still becoming – SIRS is still pretty new.  We're all still getting quite used to it.


You also talk about in 22(b) 'recognising behaviours.'  I assume for instance if you were looking after me for the day and I was less talkative than normal, or I was sleeping more than normal, that's a behaviour you would actually record?‑‑‑Definitely.


Is that something you simply put in your progress notes, or would that be something that would be referred to the RN?‑‑‑You refer it to the RN, and she will probably tell you to do a UA on the resident to make sure it's not a urinary tract infection.


Can you just me, what does that involve?‑‑‑Well, you'd have to get a sample of the resident's urine.


And then you'd put the dipstick in?‑‑‑Yes.  You do the dipstick, and then depending how that comes out, then there might be another test have to be done where it's going to be sent away.


So if it came out and it was high, you would tell the RN and the RN would deal with it?‑‑‑Yes, definitely.

***        LINDA HARDMAN                                                                                                                         XXN MR WARD


You then talk in (c) about PR skills.  I'm not trying to be demeaning when I say so; can you just help me out by what you mean by PR skills?‑‑‑PR skills - that means, particularly because we have a lot to do with residents' families, so really you're the face of the company, which means that if a resident's family comes and they're asking you for a lot of detail, you don't get in over your head; you refer to the RN.  I mean, you can – if it's just normal chit chat, that's fine, but I always tell staff to keep professional distance and don't get in over your head, because, you know, you could say the wrong thing, and some residents' families can get quite pushy, so then you refer to the EN or the RN.


When you say, 'general chit chat', it's okay to talk about the weather and how mum's going?‑‑‑Yes.


But once it goes beyond that, that's for reference to the RN, is it?‑‑‑Definitely, because otherwise, you know, you're getting yourself into hot water.


Can I ask you to go to – I think it's page 5.  Finally somebody's numbered their pages.  I'm just teasing Mr McKenna with that, it's okay.  At page 5 you've got a heading, 'Documentation.'  Do you see that, Ms Hardman?‑‑‑Yes.


I take it that you used to be paper‑based and you're now computer‑based?‑‑‑Yes.


Am I right that – do you write up your progress notes at the end of the day, or do you write them up as you go?‑‑‑No, we have to write them up at the end of the day, because you haven't got any time in between.


Do you keep a notebook or something like that and use that later on, or do you do it from memory?‑‑‑Sometimes.  It depends.  If we get a chance we'll try and scribble on a bit of paper during the day, but mostly it's in your head.  Because you know the residents and you know, for instance, what their regular bowel routine is, and you know if they have or if they haven't.  I suppose it's just from years of practice.


So when you're sitting down at the computer, and I do understand that you have a frustration because there's a limited number of them, I understand that in your evidence – when you're sitting down at the computer, you would be recording bowel movement?‑‑‑Yes.


Urine output?‑‑‑Depending if they've got – not so much urine output.  If they've got a catheter bag.

***        LINDA HARDMAN                                                                                                                         XXN MR WARD


Right?‑‑‑But things like their bowels, pressure area care, if they're on a food and fluid chart you would be recording that, and - - -


Can you just tell me what you understand by 'food and fluid chart?'---Well, if a resident's has been losing weight then they would put them on a food and fluid chart, so we have to make sure we record how much breakfast they've eaten, morning tea, lunch, afternoon tea.


So that could be recording that I didn't eat any breakfast or I ate half my breakfast, something like that?‑‑‑Yes.  So that would put a red flag up that if there's been a large amount of weight loss, then it would go – the RN would look at that and go, okay, this has been happening for a little while, you need to go have a referral to a dietitian.


How long does it take you to do those sort of progress notes and charting at the end of the day?‑‑‑It depends on the amount of interruptions.


Let's say you're having a good day and you're not interrupted?‑‑‑If I'm having a – it could take at least half an hour.


Again, you - - -?‑‑‑Change to another - - -


- - - do that from memory?‑‑‑Yes, yes.  Usually we'll try and share the load so we'll make sure that someone's on the floor or a couple of people are on the floor and but I'll nick off and do the paperwork.


We talked earlier a little bit about adverse events like skin tears.  Is that when you would write something about those as well?‑‑‑You would probably – you would put in the skin integrity that there's a skin tear and that it's been reported to the RN.  The same with the – they have the skin integrity in there we put, you know, that we've checked – the skin's been checked, there's been cream applied and if there's anything unusual – - -


Yes?‑‑‑ - - - if we've found anything usual while we've been showering or sponging the resident.


You basically work through a set of headings?‑‑‑Yes.


If it was sort of business as usual you wouldn't write anything but if there was something unusual you'd put it in under the heading?‑‑‑You've got to put every day that the skin has been checked.

***        LINDA HARDMAN                                                                                                                         XXN MR WARD


You just simply write, 'Skin checked today'?‑‑‑Yes.


If you notice that there was a tear, you'd say, 'Skin checked today.  Tear on left elbow referred to RN', something like that?‑‑‑Yes, yes, definitely.  You've got to put in there that you've reported it to the RN and then you would go back and make sure that the RN knows.  You'll either – we'll tell them what has happened and you'll just jog their memory at the end, you know, when we're doing our notes.


Sorry, I should have remembered this, the computer terminals, are they in the nurses' station?‑‑‑Yes, they are.


Just a moment, if I can. Now at page 7 at paragraph 46 you talk about dementia and difficult behaviours.  Just if I could ask you a few questions about that.  I take it that you apply de-escalation strategies or the time-out strategies if you're dealing with somebody who's being difficult or poorly behaved.  Is that correct?‑‑‑We have to be – because of SIRS we have to be very careful.  Because you're not allowed to use any undue force or anything like that so you have to be inventive, try and go and get a cup of coffee or try lots of distraction techniques.


Okay?‑‑‑It helps if you're on the same area and you know the residents.  That doesn't mean that always works because sometimes they can throw you a curly one.


There's techniques that you have such as distraction and so forth, that you would apply?‑‑‑Definitely.


I'm just interested, were those things you learnt in the cert 3 or did you have to – was it the cert 4 that taught those?‑‑‑It would be a combination of the cert 3, cert 4 and also the cert 4 in mental health.


That's helped a lot, has it?‑‑‑That's fabulous because it really helps us to notice what the triggers are and that was a wonderful course and one that I have put forward and highly recommended for everybody working in aged care.


That course dealt more deeply with behavioural issues, did it?‑‑‑Yes, particularly mental health but watching for triggers, things that will set people off, like in some cases we've got one lady at the moment and (indistinct) is something normally that will really set her off.  And we know that if she's fidgety, we know to keep an eye.  Just little tricks like that.

***        LINDA HARDMAN                                                                                                                         XXN MR WARD


Just like my kids, Mrs Hardman.  Have you ever found yourself in an unsafe situation?‑‑‑Lots of times.


What's the protocol you have to follow if you're feeling unsafe?‑‑‑You try and reach for the assist button, and if it's someone that you know is having – going to have tricky behaviours then you make sure there's two of you.  Like, we've got one lady at the moment that we dare not – we would not attend to her by ourselves.


I take it that you just need two people to sort of manage the distraction process or - - -?‑‑‑Yes and also to – if she tries to hit or bite just to make sure that that doesn't happen.


You've literally got two people there to make sure the situation stays as safe as possible?‑‑‑Yes and we do have an assist button that we have to press if we really do need extra help.


If you do press the assist button, what follows from that?‑‑‑Well, everybody comes.


It's sort of everybody drops what they're doing and comes to the assist button?‑‑‑Yes because it's quite a different noise and we use that also if somebody has had a fall.


Right?‑‑‑You know, you could enter a room and someone's on the floor or they've fallen in the bathroom and you press the assist button and that's when everybody comes.


If there is a fall, I take it that you pressing the assist button that ensures the registered nurse is going to attend as well?‑‑‑You can't touch that person until the RN has checked them over.


The RN will review them, decide whether or not they can be moved and things like that, and you'll be there to support the RN during that process?‑‑‑Definitely.


Ms Hardman, thank you for your evidence, I have no further questions, Commissioner?‑‑‑Thank you.


COMMISSIONER O'NEILL:  Any re-examination?

***        LINDA HARDMAN                                                                                                                         XXN MR WARD

RE-EXAMINATION BY MR HARTLEY                                            [3.33 PM]


MR HARTLEY:  Just one issue, Commissioner.


Ms Hardman, it's Jim Hartley again.  Just now you were asked whether you'd found yourself in unsafe situations in your work and your answer was lots of times.  Do you remember giving that evidence?‑‑‑Yes, I do.


Could you just give a few examples of unsafe situations you've found yourself in?‑‑‑Well, when a resident tries to bite you or kick you or, you know, on the other side of the coin when we've had verbal abuse from families.  The tricky thing is that with verbal abuse from the families you've just got to suck it up and you make sure you report it to the RN.


Are there any of those situations that stick in your mind?‑‑‑A few.  One particular time with verbal abuse from a family, I seriously thought about taking some long-service leave.


In the end you decided not to?‑‑‑No, I decided not to because part of the cert 4 in mental health too was they taught us how to take better care of ourselves.  We do a thing called WRAP which means, you know, you do the things that are good for you when you go home and you more or less wrap yourself.  You do things like reading and listening to music.  You know, you think, okay, that happened, I've just got to brush it off and get on with it.


Commissioner, that's the re-examination.  Ms Hardman, thank you?‑‑‑Thank you.


COMMISSIONER O'NEILL:  Thank you for your evidence, Ms Harman.  You're excused and free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                             [3.35 PM]


COMMISSIONER O'NEILL:  I understand that there's been discussions amongst the parties in relation to tomorrow and a request that we start at 9 am with I'm not sure if it's Mr or Ms Wagner, an HSU witness.  I'm happy to commence at 9 am tomorrow to accommodate that.

***        LINDA HARDMAN                                                                                                                    RXN MR HARTLEY


MR GIBIAN:  We're grateful, Commissioner.  Can I also mention just in terms of this afternoon, and I'll be corrected by Mr Hartley presumably if this doesn't correctly state the situation, we've obviously reached a situation where it's hard to see we're going to reach all the witnesses.  I think what is proposed as between the Unions at least is that Ms Breen and Ms Clarke would be dealt with and then Mr Mills, and we were hoping we would be able to deal with all of those this afternoon.


I don't know how that matches with Mr Ward's estimates but we are really reaching the situation where this is starting to cause quite a degree of inconvenience to all concerned and that involves putting off two of the AMNF's witnesses until tomorrow, as I understand it.  I assume that will take us well past 4 or 4.15 but I don't know how far past it and whether the Commission can accommodate that.


COMMISSIONER O'NEILL:  I can continue this afternoon until just before 5 pm, and I'm happy to do so today to get through as many witnesses and give them as little inconvenience as possible.


MR WARD:  Commissioner, can I offer some assistance, given the fact that I have taken longer than stated, but we wouldn't require Ms Breen.




MR HARTLEY:  Thank you for that indication, Mr Ward.  That might mean that we need just a moment to arrange for the witness who was going to be after Ms Breen who I think is Ms Clarke.


COMMISSIONER O'NEILL:  Given that we're going to sit a bit longer this afternoon, we might just take a five-minute break now and that gives you an opportunity to get Ms Clarke ready.


MR HARTLEY:  Yes, may it please.


COMMISSIONER O'NEILL:  The Commission is adjourned until 3.45.

SHORT ADJOURNMENT                                                                     [3.37 PM]

RESUMED                                                                                                [3.44 PM]


COMMISSIONER O'NEILL:  The Commission is resumed, and we have Ms Clarke, yes.


Ms Clarke, can you hear me all right?


MS CLARKE:  Yes, I can hear you fine.


COMMISSIONER O'NEILL:  All right, lovely.  I'm Commissioner O'Neill, and my associate is just going to have you take the affirmation.




THE ASSOCIATE:  Ms Clarke, can you please say your full name and work address?


MS CLARKE:  Sheree Gay Clarke, and my work address is 69-71 Caboolture River Road, Morayfield, 4506 in Queensland.

<SHEREE GAY CLARKE, AFFIRMED                                              [3.45 PM]

EXAMINATION-IN-CHIEF BY MR MCKENNA                              [3.45 PM]




MR McKENNA:  Thank you, Commissioner.


Ms Clarke, my name is Jim McKenna.  You met the other Jim during the adjournment.  I am the other barrister, the other Jim appearing on behalf of the ANMF.  Could I ask you to please state your full name again?‑‑‑Sheree Gay Clarke.


And you are employed as an AIN with Opal health care - sorry, I withdraw - yes, with Opal Health Care at Morayfield Grove; is that correct?‑‑‑Yes, that's correct.


Could you please give the address for that facility?‑‑‑69 to 71 Caboolture River Road at Morayfield, Queensland, 4506.


Thank you.  And in addition to that you're also a part-time employee of the Queensland Nurses and Midwives Union?‑‑‑Yes, I am.


Ms Clarke, you have prepared a witness statement for the purpose of these proceedings?‑‑‑Yes.

***        SHEREE GAY CLARKE                                                                                                            XN MR MCKENNA


Do you have a copy of that with you today?‑‑‑I do have a copy.


Could I just ask you to confirm that it is - on page 13 it should be dated 29 October 2021?‑‑‑October, yes.


And whilst you're on that page, can I ask you to confirm that it runs to 85 paragraphs?‑‑‑Yes.


And with your statement there are three annexures; is that correct?‑‑‑That is correct.


Have you had a chance to read that statement recently?‑‑‑I have.


Are there any changes, corrections or clarifications that you wish to make to that?‑‑‑Probably just that I no longer work the Sunday shift.  I'm now only working Saturday shifts.


Subject to that clarification, are the contents of your witness statement true and correct?‑‑‑Yes.


And the three annexures that you refer to that are attached to your statement, are they true copies of the documents you refer to in it?‑‑‑Yes.


Commissioner, Ms Clarke's statement can be found at document 229, page 11,998 of the court book.


Ms Clarke, on the screen in front of you hopefully you will be able to see Mr Nigel Ward who's holding his hand up.  Mr Ward will now have some questions for you?‑‑‑Thank you.


Thank you.

CROSS-EXAMINATION BY MR WARD                                           [3.47 PM]


MR WARD:  Thank you.  Ms Clarke, can you hear me okay?‑‑‑Yes, I can hear you well.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


Thank you, Ms Clarke.  My name's Nigel Ward, Ms Clarke, and I appear in these proceedings for the employer interest.  Do you have your statement in front of you?‑‑‑Yes, I do.


Thank you very much.  Could I just start with your qualifications, if I can.  I understand the certificate 3 that you've got, could you just explain to me what the diploma – just give me some understanding of what the diploma is about?‑‑‑The diploma is of community services so it's a little bit more broad as when I was – from that one I did youth work.


Yes?‑‑‑But it's much more around advocacy and client focused services rather than just clinical care.  It's about supporting the individuals' emotional, holistic care.


It has reasonable applications for the notion of sort of client-centred care and client-focused care?‑‑‑Yes.


Yes and the certificate 1 in mental health first aid, I'm not familiar with that.  What is that?‑‑‑So it's basically if anyone's going through distress in a mental episode that we can – similar to physical first aid, that you have the appropriate skills to do the intervention needed until you get them to the appropriate professional help.


Bear with me, this might be a bad way of putting it.  It's sort of like a St John's Ambulance first aid but dedicated to mental health?‑‑‑Yes.


My understanding from your statement is that you work in predominantly the memory support unit?‑‑‑Yes.


Am I right that that's a secure unit?‑‑‑It's a secure unit with the majority of the residents suffering with dementia or living with dementia.


Do they suffer from anything else in addition to dementia?‑‑‑I have looked after people with schizophrenia and other versions of mental health that impacts their cognitive abilities, that impacts on the behaviour.


Yes so from time to time there are people with other mental health issues other than just dementia?‑‑‑Yes.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


When you start in the morning I think you say you read them notes from the shift before and you have a quick chat with the RN.  Is that a process for getting going in the morning?‑‑‑Yes, so the RN would run us through what's – update us with the most critical things with the residents and anything major that needs to occur, whether we've got family visiting or doctors visiting and things like that, and anything we need to know that day or any changes since we last did a shift.


Anything that could impact what you're about to do, the RN will try and run you through that?‑‑‑Yes.


In terms of how you start the shift, is there a standard routine or how do you actually decide what to do first?‑‑‑If there's buzzers going, like, we often, as I said in my statement, we often have sensor mattresses that let us know that our residents are out of bed.


Right?‑‑‑That's the priority call.  If there's none of those going off, I do a safety check first, so I go around and check every single room to see if the residents are okay.  I'll start doing things like opening curtains and shutting them so the residents can get adjusted for the day.


Yes?‑‑‑And I'm assessing as I go who my priority needs are.


It's not a phrase I've heard before in the case, that the notion of a safety check, I take it that's to see whether or not there's falls or anything like that?‑‑‑Yes, anyone having breathing difficulties, anyone who's, you know, halfway out of bed but they haven't quite reached the sensor mat yet.


I'm sure that would be me.  If there's somebody having breathing difficulties, do you go and get the RN to look at that person or - - -?‑‑‑We're lucky in our facility that we have an emergency button that I can call the RN.  If it's not a high priority where they're not really struggling, then I'll get the RN, but I'll also do things where I'll sit them upright so I can clear the airways and make sure they're in the most appropriate position.  So basic first aid before the RN comes.


If you sitting me upright solved the problem, you'd tick the box, as it were.  If it didn't - - -?‑‑‑No, I'd still inform my RN.


You'd inform the RN.  Okay?‑‑‑Yes, I'm going to cover myself.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


You've got to cover yourself.  That's all right.  That's right.  I'm pleased you do.  You then say at 10 o'clock there's a scrum.  My understanding is that's when the team sort of have a huddle and talk about what's going on.  Is that a reasonable description?‑‑‑It's what my workplace calls it and it is one of the more positive things from Opal that we do do, that we have another little mini meeting so and an update to where we're at and prioritising our work.  It ensures we're keeping working as a team.


It's a conversation about what you've observed already in the morning and if you need to change any priorities or anything like that?‑‑‑Yes.


Is the RN in the scrum?‑‑‑Yes and if it's on a week-day the managers will come down as well.


When you say managers, which managers are they?‑‑‑So depending on the availability either the facility manager or the clinical manager.


Is the clinical manager a registered nurse as well?‑‑‑The clinical manager is.  The facility manager is not.


Is not, yes, okay.  I just want to take you through a few issues just to see how your experience compares to other things that have happened in the case.  Am I right that in your facility on admission it's the registered nurse who puts the care plan together?‑‑‑Yes.


Is that signed off by the clinical care manager or is that the domain of the registered nurse?‑‑‑I think they do get signed off, the clinical manager, I'm not 100 per cent, because my job is to do the assessment beforehand where we fill out the forms for the RN to come and read.  So we're the ones documenting, like, the sleep patterns, behaviours, those - - -


Bear with me.  My understanding is it would go something like this.  The RN will initially meet with the family and resident and create what others have called an interim care plan.  Is that consistent with what happens with you?‑‑‑The (indistinct) comes in from the hospital and we do an assessment based on that one, and then we place them on charting for a week after that one.


What if they - - -?‑‑‑It would be an interim.


An interim one, it would be an interim one.  What if they don't come in from the hospital, they come in just they're coming in from home?‑‑‑They've still got to go through the ACAT process.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


Right?‑‑‑Determining their needs before they come in here.  So they have been assessed prior to before coming in.


During that assessment period you would be observing things like their mobility, assistance they require with showering or toileting, and I take it you would be recording those things and that would be then fed back into the RN so the RN can then formalise the care plan?‑‑‑Yes.


Yes, okay.  I just want to take you through a few circumstances.  I just want to see what your procedures are in your facility.  I think we've touched on one already but we'll just confirm that.  If there is a fall the procedure is to call for the RN?‑‑‑Yes but we've also got to do basic, obviously remove other residents from the scene, ensure that the scene is quite safe.


Yes?‑‑‑And if there's bleeding obviously we're going to put – try and stop – stem the flow of bleeding and those kinds of things, while waiting for the RN.


Then the RN will come and evaluate the resident?‑‑‑Yes.


The RN will direct what's to occur with the resident, whether or not they can be put back into bed or whatever.  Is that the RN's decision?‑‑‑That is the RN's decision.


If the RN decides there needs to be a particular regime of observation during the day, they'll put that in place?‑‑‑Yes.


It would be your job then to carry out those observations, either record them in your progress notes or to, subject to what they are, inform the RN if there's a change?‑‑‑Yes.


Yes.  Now, if you – let's say you're showering me in the morning and I'm a resident, and you noticed I had a tear in my skin, is that something that has to be reported to the RN?‑‑‑Yes.


I take it the RN will come and make a decision as to how to deal with it?‑‑‑They will but we can do basic first aid, such as if it's a bad skin tear we will try and get these – if we've been trained, I've been trained in it, where you get the skin back over to cover the skin so it doesn't dry out so it's better healing, and then I'll keep the wound moist until the RN can get there.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


You'll do the initial first aid in preparation for the RN attending?‑‑‑Yes.


Which part of your training gave you that skill?‑‑‑I started in the industry with the old hospital trained RNs.


Okay?‑‑‑So they very much had a hands-on approach.  Back when I first aged care, we had a lot more time with our registered nurses, so they did a lot of hands-on training.


From that perspective, it was on the job training from the RN?‑‑‑Yes.


Yes, do you cover wound care in the certificate III?‑‑‑I did mine - I was one of the very first ones to go for my cert III, so, no, we did not.  Mine was ‑ ‑ ‑


Okay, no, that ‑ ‑ ‑?‑‑‑Yes, mine's a bit out-dated now.


No?‑‑‑Sorry if I show my age.


No, that's okay, I don't want to press you on that if that's the case, that's fine, a long time ago.  If let's say the RN comes along and decides that the wound has to be dealt with a certain way and is going to dress it, I take it that you would have the competence to redress it later depending on the nature of the wound, or would that be something that would stay with the RN?‑‑‑Within my current facility the RN would change it unless we're really - we've got a lot of critical incidents going on.  Other nursing homes it is the role of the AIN that I've done, because I've worked in quite a few facilities, and there's some where we do do wound care.


Okay.  And by 'we do do wound care' that would be you would ‑ ‑ ‑?‑‑‑Changing basic - very basic dressings.


Changing basic, yes, dressings.  Yes, okay?‑‑‑Yes.


And am I right that, again, if you're showering me in the morning, if you observe some bruising or skin colour change that's something you have to report to the RN as well?‑‑‑Yes.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


I take it the RN will decide what has to happen with me because of that?‑‑‑That, and I've also got to help the RN backtrack to see the possible causes that could have caused that bruising.


Because it might be that the cause ultimately is a SIRS reportable event, and you have to help with that?‑‑‑That, and are their gait's unbalanced that they're knocking into more things than they used to be, have we got another resident that's a bit more grabby than they should be ‑ ‑ ‑


I've got you?‑‑‑ ‑ ‑ ‑amongst the peers, so, we've got to eliminate what the causes are.


Causes are, okay.  And obviously when you're with a resident you're going to be monitoring my behaviour as it were.  If I'm less verbal today, would that be something you'd just write on the progress notes, or is that something you'd inform the RN about?‑‑‑It would depend.  I'd continue observing you throughout the day.  Like, if you're less verbal and you had facial muscle dropping, I'd be getting the RN quite promptly.  If you were just a little bit more withdrawn and not responsive like you - we don't have our normal conversations that we do, I would try and engage through conversation throughout the day and if you're still not responsive, at that mini meeting I told you about, the scrum ‑ ‑ ‑


The scrum?‑‑‑ ‑ ‑ ‑that's where I'd raise my concerns.


It might be, 'Look, I've been watching Nigel all morning, I'm just getting a little bit concerned, he's just not himself, he's not' ‑ ‑ ‑?‑‑‑Yes.


And the RN would possibly say, 'Well, let me come and have a look at him with you' and then you'd work through what happens next?‑‑‑Yes.


Okay.  And if somebody has to go to a hospital, is that the clinical manager's decision, or is that the RN's decision, or is it a GP's decision?‑‑‑It's - we do different versions now.  So, if it's after hours at night it's the RN, and it's also the seriousness of the fall and the injury.  Sometimes we're now invoking the RADAR nurses from the hospitals where we're contacting them first.  Or sometimes it's the doctor.


Do you have residents with catheters?‑‑‑Yes.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


You do.  And am I right that - I appreciate there are different types of catheters, I'm learning this week, am I right that one of your roles would be to remove a catheter bag that's full, record the fluid, if the fluid has got no blood in it or things like that you might just replace the ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑catheter bag, is that something you would do?‑‑‑Yes.  We're assessing the urine every time we empty it and change it.  It's not a fun part of our job, but we are looking at the urine to make sure it's a healthy normal colour.


If it's cloudy or it's got blood in it, again, is that something that has to go to the RN?‑‑‑Yes.  But even if it's a little bit cloudy, even without the RN coming along, I know I need to push more fluids with that resident, because generally the first sign of dehydration is the change of urine.


So in that case you would consider how much fluid that resident might have drunk ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑that day and you're starting to get Nigel to drink a little bit more?‑‑‑Yes, and look at ways that we can get you - water is not the most encouraging for our older generation, so we've got to look at ways of enticing.


I had a 93 year-old father-in-law who wouldn't drink water.  I understand that.  I understand that well.  Now, could I just take you to paragraph 44 for a minute and just - I want to see ‑ ‑ ‑?‑‑‑Okay, yes.


You say:


In my role I helped less experienced and less trained staff to learn what is needed in the role.  Anyone who is passed their training period generally three months is able to act as the buddy for others.


I'm just interested in your - sorry, it then goes on to say:


However, some new staff sometimes have very little experience in aged care.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


In your experience, what's the period of experience people need to be sort of fully capable of doing the job?‑‑‑In my opinion you've got to be there at least 12 months.  It's one of those jobs we don't know everything.  It's learn on the job, it changes every time.  You've got to work with different residents in different times.  And for me, this is what I'm passionate about, is improving this bringing them into aged care, because you see so many times new staff training other ones have just come from doing their course, and, sorry for the bad choice of words, but it's the blind leading the blind, and that's where it becomes more task orientated rather than person centred care.


So, if you're working with one of those people you're literally trying to help them remove the catheter bag, as it were, as opposed to doing something that's of broader value?‑‑‑That, and my biggest passion is, like, is not just task, it's the person that we're working with, so, it's introduction from a team member that the resident knows very well and letting them know the background of that resident, what they like, what they dislike.  I use humour very much in my job with my residents to build rapport and connections, so what I'm demonstrating to the new member is how we build rapport and connection, and healthy relationships with our older generation.


Now, at paragraph 39 you talk about you provide emergency relief as a physiotherapy aid?‑‑‑Yes.


What's a physiotherapy aid?‑‑‑So, they're the ones who assist - the AINs who assist the physios in a nursing home.  We have someone - a physio shift each Monday to Friday, and one of our primary roles is to ensure everyone's who's on heat packs, so gets regular heat packs, we go around putting the heat packs on, monitoring, making sure they're on for the right duration and that they're at the right heat and temperature.  They say give massage but I'm not trained in massage, so, it's more of a pain gel that I'm rubbing into their legs and ‑ ‑ ‑


And when you say 'pain gel', that's like a heated gel or a relaxant gel or ‑ ‑ ‑?‑‑‑Yes.  Yes, an (indistinct) gel, whatever has been prescribed to that resident.  Also with our physio aids if they need to walk residents who are on rehabilitation, I'll be there assisting the physio to help them walk the residents.


All right.  And is that a skill you learnt along the way, or is it something else?‑‑‑It's a skill I've learnt along the way.  I used to work at Mt Olivet hospital which had a full - we have rehabilitated ward, so a little bit different to the physio aid there, but that's why I put my hand up for it, because I've had previous experience in working in a rehab ward.


Okay.  And I take it again the cert III was too long ago to remember whether or not you would ‑ ‑ ‑?‑‑‑They definitely didn't cover that one.


Didn't cover that one?‑‑‑Definitely didn't cover that one.


Nothing on heat packs in the Cert III?‑‑‑No.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


No, okay?‑‑‑My cert III didn't even tell us how to do a shower.




I should stop asking questions about that?‑‑‑Yes.


Okay.  Can I take you to paragraph 45, you say:


When I'm partnered with someone who is inexperienced I teach them routines.




By routines, do you mean, like, routines like showering and ‑ ‑ ‑?‑‑‑I hate the word 'routine', but it is.  It's how our day goes around, because our routine changes to every resident that comes in, and it adapts and changes to their needs.  But it's taking them through what needs to be done by a certain time in order.


And, again, it's your word not mine ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑but sort of the get out of bed routine, the lunch routine, the get them ready for bed routine and ‑ ‑ ‑?‑‑‑Get them ready for breakfast, yes.


Okay?‑‑‑Yes, it is my word, but I don't like the word.  Because we change from day-to-day, I hate when people go, 'No, Mrs Smith, you get up at 7 o'clock, you're getting up' - you know, 'at 7 o'clock you're getting up'.  I see if Mr Smith wants to get up.


Exactly, but you'd obviously be turning your attention to getting people up.  Whether or not Mr Smith wants to get up today is a different issue?‑‑‑Yes.


And that's what you really mean by routine, isn't it?‑‑‑Yes, so the guideline of how we work.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


You then talk about 'preparing charting for residents that are reviewed by registered nurses' in paragraph 49.  Can I just ask this, do you – so you know, you do your bowel movements, you do your urine output, you'll do your behavioural – do you do that on the run during the day, or do you do that at the end of the day?  How do you do that?‑‑‑Ideally you do it at the point in time, but we do it at the end of the day.  We don't have time to do our charting on the go.


I'm not trying to be rude when I say this - do you do that from memory, or do you take notes along the day?‑‑‑I take notes.


You take notes?‑‑‑Yes.


And your system is computerised now?‑‑‑Yes.


So you have to type in all of that.  So let's say that you were taking my blood pressure, I take it you would take a note of what my blood pressure is and then you'd type that into the system in your progress notes at the end of the day?‑‑‑Yes.


If you take blood pressure as an example, I would assume that with something like that, if my blood pressure was out of the ordinary, again you'd be referring to the RN straightaway?‑‑‑Yes, I would.


So that wouldn't wait till the end of the day when you're doing your notes?‑‑‑No.


No, okay?‑‑‑We've constantly got to prioritise and change what we're doing around.  So different things will get – you know, I might do it at the end of the day, but things like that would warrant more attention.




We've had some evidence about blood pressure operating with a kind of green, yellow, red traffic light system.  Do you use that as well?‑‑‑Yes.


That tells you, if you like, when you should get hold of the RN pretty quickly?‑‑‑You've also got to have a knowledge of their baseline.  If I worried about it just on what that resident is, you know, if someone who has generally lower blood pressure that the RN's worried about and it's at his average.  So the machine might tell me it's in the red, but it's actually – if it's in the red I'll always get the RN, but if it's more in the amber line, I'm going well that's actually his normal range, and  - - -


(Indistinct)?‑‑‑ - - - (indistinct) be on medication to monitor that one.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


Would their normal range be in their care plan?‑‑‑Yes.


Okay?‑‑‑Or you can get it by reading the last week's blood pressures, and then the chart – you can look back at the chart and see the regular.


So you can just log on and look back at what happened last week?‑‑‑Yes.


Because I think you said if it's in the red you'd get the RN anyway?‑‑‑Yes.  If it's red you're getting the RN.


Your facility, does it operate with people dedicated to doing cleaning?‑‑‑Yes.


Do they come around while you're working, or do they come around sort of at the end of the shift?  How does that operate?‑‑‑They work with us, so they're pretty much there from the time we start to the time we finish.


So they've got a – I know it's not your favour word, but they've got a routine, but they also do spot‑cleaning as well, will they?‑‑‑They will if someone's moving in and out, but if it's cleaning of body fluids, such as blood, urine or faeces, that is my responsibility, because it's also DigniCare and infection control.  So if I spot anything like that, it's my responsibility to clean it up straightaway.


So if you see that in, say, a bathroom of a resident you're looking after, that would be one of your responsibilities?‑‑‑Yes, because I'm not going to take that resident in to use that bathroom if it's dirty.


Hence you have to attend to it straightaway?‑‑‑Yes.


Does the care plan set out the details of when you need two people for a shower or two people for a lift and things like that?‑‑‑Yes, especially in the summary care plan so you can get the information quickly, because we have a very in‑depth care plan, but good luck reading it all and having time on shift to reading that one, and then we have the summary care plan with how quickly how (indistinct) that person is, (indistinct) they don't need assessment with food in that.


Where's the summary care plan kept?‑‑‑It's kept generally in the bathrooms, in a discreet location so it's not for public to see, so the resident's privacy is still respected, and it's somewhere where you can easily access it.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


So that will – for instance, if I need two people for me in the shower, that will have that in there?‑‑‑Yes.


Or if I need a hoist to get me out of bed, that will have that in there as well?‑‑‑Yes.


Will it have comments about my mobility generally?‑‑‑Not generally, just if you want assist unsupervised.  It won't tell me if, you know, if you're a higher risk.


Okay?‑‑‑And one thing I'll point about those care plans, if they're one assist, I do have the authority to assess; if I deem those residents unsafe with just one person, I can request another person's assistance to ensure safety and then ask for a reassessment from the RN, but I can never go the other way.  I can't go down in my assessment - - -


(Indistinct) - - -?‑‑‑ - - - (indistinct) they're much better today, I'm only doing it once.


(Indistinct) - - -?‑‑‑(Indistinct).  I can only go up.


If the summary says two people, it must be at least two people?‑‑‑Two people.


But if you made a decision for some reason that it really required three, that's your call?‑‑‑Yes.


And then later on you might have a conversation with the RN about changing the ongoing care plan?‑‑‑Yes.


Obviously you from time-to-time will deal with challenging behaviours from residents.  I assume that you have de‑escalation, diversional strategies that you adopt in dealing with it?‑‑‑Yes.


In your case I take it again that they weren't really learnt in the certification process; they've been learnt on the job?‑‑‑That, and when I did my Diploma in Community Services, it did a lot in conflict and working with challenging behaviours.  I've also done courses separately to that one.  I've done ongoing courses.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


Those are the courses in paragraph 7 of your statement that you've outlined a fairly long list?‑‑‑Yes.


And they've helped you with managing challenging behaviours and the like?‑‑‑Yes, very much so.


I assume that at some stage in your career you've found yourself in an unsafe situation?‑‑‑Quite a few times, yes.


Is there a protocol or procedure that you're required to follow when you're in that situation?‑‑‑They say always keep your – you know, a safe space to run to, and that you're always meant to walk away, but – and this is my opinion – the protocol after these things that happen, we don't do a proper debriefing.  When we have violent incidents we are not supported afterwards.  It's always about the residents.  It's never looking back at how we could do things differently and improve things better.


So there's a standing rule that you - - -?‑‑‑You just keep working – you know - - -


Just bear with me.  Did you suggest to me then that there's a standing rule that you're to remove yourself from an unsafe situation?‑‑‑Yes.


But your concern is that there's not - - -?‑‑‑Sorry, that's just not always possible.


What do you do when it's not possible?‑‑‑So you've got to de‑calm and de‑escalate.  When I say it's not possible, if you've got a resident who's aggressive and they're going towards another vulnerable older person, you can't just walk away if they're turning, taking a swing at you and going back for that person.  You've got to do whatever you can to get the attention back on you, away from the more vulnerable person.


And you'll make that decision yourself to do that, will you?‑‑‑I will hit emergency button to get more staff down to help me and to get more interventions in, and if, you know, I'm the one that's involved, as soon as there's someone else who can hopefully de‑escalate where I couldn't, I will step back and away then, but I won't remove myself until that other resident is safe.


When you hit the de-escalation button, is the rule that everybody drops what they're doing and comes to help you if they can?‑‑‑That is meant to be the rule, but it doesn't; it seldom happens.

***        SHEREE GAY CLARKE                                                                                                                XXN MR WARD


Are you suggesting that nobody comes to help you?‑‑‑I've had cases where I've waited a long time, and I've ended up de‑escalating and getting the other resident out safely before someone's actually responded to the emergency button.


So you've applied the skills you've developed on de‑escalation to resolve that satisfactorily?‑‑‑Yes.


Ms Clarke, thank you for your evidence.  I wish you well.  Commissioner, no further questions?‑‑‑Thank you.


COMMISSIONER O'NEILL:  Any re-examination, Mr McKenna?


MR McKENNA:  Two matters, thank you, Commissioner.

RE-EXAMINATION BY MR MCKENNA                                           [4.17 PM]


MR McKENNA:  Ms Clarke, you were asked some questions about what you might do if you observed some bruising on a resident whilst you were showering them, and you were asked if you understood that you were required to report that and I think you said that you were.  You would report that to the RN if you observed that?‑‑‑Yes.


Then it was put to you that the RN will then decide what was to happen and you agreed with that, but you went on to say that, on my note, you would help with the investigation about the cause of the bruise?‑‑‑Yes.


You then gave a number of examples about what might have been the cause of the bruise?‑‑‑Yes.


One of the things that you said, I think, was that it might have been another resident being a bit grabby.  Do you recall that evidence?‑‑‑Yes, yes.

***        SHEREE GAY CLARKE                                                                                                         RXN MR MCKENNA


Can you explain what you meant by that, another resident being a bit grabby?‑‑‑We have residents who perceive themselves as young and able.  So I'm in a memory support unit.  So they'll see a little frail old person walking along and they will grab them by the arm or take their arm to try and lead them to where they go and help them stand up.  We also have residents that are very territorial of their space so if someone comes into it they will quickly push them or pull them away.  You also have residents having a fall and they'll grab a hold of whatever they can to stop them from falling down and, unfortunately, that's another one of our residents standing next to them.


Thank you, Ms Clarke.  You were also asked some questions about whether Opal healthcare had dedicated cleaners and you were asked about how they performed their function and so forth and one thing you said in that line of questioning was that if there were bodily fluids then cleaning that would be your responsibility.  Do you recall that?‑‑‑Yes, yes.


One of the things you referred to, I believe, was dignity care, is that - - -?‑‑‑Dignity care, dignity for them.


Can you explain what you mean by that?‑‑‑It's – we don't – in our own homes we don't live in an unclean environment.  You know, if we've had an – say if our dog had an accident on the floor, we'd clean it up promptly, we wouldn't live amongst that.  So they can't do it or see it themselves, so I'm going to clean up that kind of fluid and bodily fluids around them so they're not living amongst it.  You know, they don't want to be sitting with that on the floor right next to them.


Thank you very much, Ms Clarke.  Commissioner, I have no further re-examination.  Might Ms Clarke be excused.


COMMISSIONER O'NEILL:  Thank you, Ms Clarke, for your evidence.  You're excused and free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                             [4.19 PM]


MR GIBIAN:  Commissioner, before we move onto Mr Mills, there were a number of changes that Ms Breen was going to make and I might hand over to Mr Hartley to address those, if that's convenient.




MR HARTLEY:  Commissioner, it's really just one issue, I foreshadow it now.  I doubt this will change Mr Ward's mind about cross-examination but in paragraph 16 Ms Breen said that RSL Lifecare had recently told them that they were closing an office in Mullumbimby.  She was going to say that that has now happened and that it's been replaced by a tin shed in an industrial estate on the outskirts of town.  So unless there's any objection that will be inserted into the statement and provided to the Commission.

***        SHEREE GAY CLARKE                                                                                                         RXN MR MCKENNA


COMMISSIONER O'NEILL:  I take it, Mr Ward, that doesn't change your assessment?


MR WARD:  I'm tempted to go for the tin shed, Commissioner, but I think I'll let it go.


COMMISSIONER O'NEILL:  I think that's wise.


MR HARTLEY:  The other matter, Commissioner, and then Mr Mills, and is just to inform the Commission and Mr Ward that the agreement, and Mr Ward may or may not have already been informed, but is that the witnesses for the AMNF that were going to be today, namely Ms McInerney and Ms Bucher, are going to be straight after lunch tomorrow, so 2 pm tomorrow.


MR WARD:  Thank you.




MR HARTLEY:  May it please the Commission.


COMMISSIONER O'NEILL:  Mr Mills, can you see and hear me all right?


MR MILLS:  Yes, I can see and hear you.


COMMISSIONER O'NEILL:  I'm Commissioner O'Neill and my associate is just going to have you take the affirmation.


MR MILLS:  Okay, then.


THE ASSOCIATE:  Mr Mills, can you please say your full name and work address?


MR MILLS:  My name's Kevin Mills.  I work at 121 High Street, Albion Park Rail, Warrigal.


THE ASSOCIATE:  Thank you.

<KEVIN MILLS, AFFIRMED                                                               [4.21 PM]

EXAMINATION-IN-CHIEF BY MR GIBIAN                                    [4.21 PM]




MR GIBIAN:  Thank you.  Mr Mills, this is Mark Gibian again.  You can see and hear me?‑‑‑Yes, I can, Mr Gibian.


Excellent.  Can I just ask you to repeat your full name for the record?‑‑‑My full name is Kevin Mills.


You're employed as a gardener.  I think you gave an address which I assume was the Albion Park Rail headquarters for Warrigal?‑‑‑Yes, that's correct.


But I understand that your responsibilities extend across three facilities at Albion Park Rail, Albion Park and Mount Warrigal, is that correct?‑‑‑That's correct, yes.


Yes.  You've made a statement for the purposes of these proceedings.  Do you have a copy of that with you?‑‑‑Yes, I do.


It's dated 30 March 2021 and runs across some 30 paragraphs over five pages?‑‑‑Yes.


Your role has remained – continued to be the gardener of those three facilities up until today?‑‑‑Yes, yes.


Yes and in relation to your statement have you had an opportunity to read that through?‑‑‑Yes, I have.  I've had a couple of opportunities to read it through, yes.


Were there any corrections you wanted to make to it?‑‑‑No, no, everything seems to be okay there.


Is it true and correct to the best of your knowledge and recollection?‑‑‑Yes, it is.

***        KEVIN MILLS                                                                                                                                  XN MR GIBIAN


That's the statement of Mr Mills that we wish to have as part of the evidence in the proceedings.  Sorry, I've lost which document it is now.  Document 175, I'm sorry.  Yes, document 175, commencing at page 10,573 of the digital court book.  I did notice there was just a typographical error in paragraph 18 but I think that will be pretty obvious to everyone.  Mr Mills, you should see on the screen in front of you in one of the squares is Mr Ward.  He's going to ask you some questions now?‑‑‑I see his hand up, yes.


He even waved.

CROSS-EXAMINATION BY MR WARD                                           [4.24 PM]


MR WARD:  Mr Mills, can you hear me?‑‑‑Yes, Mr Ward, I can.


Thank you very much, Mr Mills.  Mr Mills, my name is Nigel Ward.  I appear in these proceedings for the employer interests.  Do you have your statement in front of you?‑‑‑Yes, I do, yes.


Thank you.  Thank you.  I'd like to start, if I can, just at paragraph 6 just to try and clarify if I can, you talk about 64 independent living units?‑‑‑Yes.


Who lives in those?‑‑‑They're actually bought by people, normal people, like residents that actually buy it.  Like myself for instance.  Myself and my wife would buy it as a retirement type thing and we can – we can do our own garden bed or we can choose for – say it's my wife and I, we can choose for the gardener to come and do the garden and we pay a maintenance levy every week for that service.


Those people, I take it those people are not being provided clinical or personal care?‑‑‑No, no, those people have a thing if they do have a problem like a heart attack or something, they've got a little pendant to press and all that sort of stuff, yes.


When you say they can do their own garden or they can have you do it, so is the unit like a townhouse?‑‑‑Yes, it's like a villa.


A villa?‑‑‑It's actually like a villa, two bedroom or three bedroom villa.  And they can choose to, say, retire well and truly, not worry about the garden.  Or some like to do their own gardening.  So they've got that choice.


That's okay and so they have a front and back garden or just a front garden?‑‑‑Front and back, yes.

***        KEVIN MILLS                                                                                                                                 XXN MR WARD


Bear with me how I describe this, is it similar to a normal residential garden?‑‑‑Yes, yes, similar to that, yes.  Like, say you had a two bedroom villa outside, say, a little townhouse so to speak or something, you've got a little garden out the front or a garden out the back, or it could be two metres by one metre long.  It could be bigger than that, it depends.


How big could it be?‑‑‑Well, it could be anything up to three metres.  Three metres long by about two metres wide, garden beds.


You said they can do their own gardening or they can get you to do it?‑‑‑Yes.


Am I right that the villas have been there for a while?‑‑‑Yes, they have, yes.


I take it they've got established gardens at the moment?‑‑‑Yes, at the moment.  Some – what happens is when they vacate them, as a good word to say, vacate them, yes, I come in and do what's called a refurb on the actual garden beds.  So what I do is rip out whatever stuff they've grown or it may be tall stuff, wild stuff or, you know, roses or whatever, I try to narrow it down to what you call a maintenance-free garden so it makes it easier for myself for later on down the track, and for resale value, for Warrigal resale.


When you say a maintenance-free garden, is that putting plants in that are sort of hardy and - - -?‑‑‑Yes - - -


- - - don't need a lot of watering?‑‑‑ - - - (indistinct) Nandinas and things like that, plants that don't need too much watering.  Then I mulch it all and everything else as well, and sometimes put a new timber board edge.  It depends on what condition they're in.


Yes?‑‑‑I do them up for a resale value.


I take it what you're really pulling out is, you're pulling out the exotics or the things that require a lot of upkeep?‑‑‑Yes, exactly right, a lot of the roses that really stab you.


After you've done your refurb, I take it - is it up to me, as the new owner of the villa, if I want to then plant something I can plant it?‑‑‑Yes.  Yes, it's up to you to come in, and you can say well, you've got plants from your other place that you want to put in there, and it's up to you then.  The game is whatever you want to put in, you know.

***        KEVIN MILLS                                                                                                                                 XXN MR WARD


Let's say I'm a gardenia fanatic and I want to put a lot of Gardenias in, and I put them in.  I take it you then have to maintain their gardenias?‑‑‑Yes.  It depends who – a lot of times they might say well I'll put it in and I'll look after it, or they said – then later on down the track they might not be able to, six months down the track, and it's up to me to maintain it, because they don't want to rip them out while they're there.  They want us to to maintain them to their specifications, you know.


So they might pay a fee for you to maintain the garden?‑‑‑Well, they pay like a – what they call a maintenance levy fee of a weekly thing, which covers lawns mowed, which I don't do lawns, which is good, it's done by a contractor.  They do the garden areas, and I think it covers some sort of, like, water usage, insurances and things like that – the body corporate.


I understand?‑‑‑Yes.


You just made a comment then about lawns, so let's say I've got a three by two metre patch in my back garden, I've got a nice lawn on it?‑‑‑Yes.


Is that your responsibility or is that somebody else's?‑‑‑That is, yes.  I don't mow it.  I will have to say – they might say we want all the weeds sprayed out of it, which I'll do, so have the clover taken out and things like that, but we have what we call a contractor mower bloke, who's actually separate from Warrigal, and he'll mow a few actually places, like (indistinct), around Illawarra so to speak, and he'll come in and mow that, and I liaise with him every now and then about what I've done and everything else and that I put down a lot of new turf, and I've got to liaise with him to make sure he doesn't sort of go in and shave it on me, so try and get, you know – not to get back to concrete.


So if I've just bought a villa and I wanted to turf the back, you would do the turfing or you'd organise a turfing contractor?‑‑‑No, I would do the turfing.  I'd pick up the turf and everything else, yes.


And put it down?‑‑‑Yes, and put it down; prepare the surface first, because - - -


(Indistinct) - - -?‑‑‑ - - - (indistinct).  My background's a greenkeeper.


I saw that?‑‑‑Yes.  I've done that for 20‑something years as well.

***        KEVIN MILLS                                                                                                                                 XXN MR WARD


Then in terms of that lawn, I could either mow it and look after it myself, or I could say no, I don't want to do that, and if I didn't do it the contractor would mow it, but you'd actually be responsible for keeping it in good condition?‑‑‑Exactly right, yes.


So you'd be topsoiling it and things like that?‑‑‑Sorry, can you repeat that?


You'd topsoil it, when it needs topsoiling?‑‑‑Yes, topsoil and everything else, yes.


So that's the villas, and then you've got the nursing home itself?‑‑‑Yes.


I take it it's got sort of external gardens and internal gardens from your statement?‑‑‑Exactly right, yes, courtyards.  They've got about eight or so courtyards indoors, which is a nightmare to lug stuff in and out of the building, on my own as well.


Is what's planted in the courtyard, is that in planter boxes, or how's that planted?‑‑‑It's in garden beds and everything else, like palm trees, like gardenias, like Nandinas were already in there.  They've tried to theme gardens, like rose garden beds and everything else, and that's another I've got to – they don't – I've got to liaise with some residents, because a lot of residents get up and touch the roses.


Yes?‑‑‑So I've got to watch all that as well, you know.


I take it when the facility was built, those gardens were constructed as part of the initial build?‑‑‑Exactly right.  They put that in after and didn't realise.  They said oh it looks good, and I said well, I've got to look after them, and they go, well, you know, you've got a bit of time.


So there's a challenge because of the number of them, or because of the way they're planted?‑‑‑It's been a bit challenging, and without really getting into the courtyards and out, because with COVID being on, there's been only one way in and one way out of the building, and every time I take a wheelbarrow load of stuff in I've got to cover the load over so I don't make a mess on the carpet, and if I've got to pull stuff out, I've got to make an amount of stuff and then actually cover it all over and tie it all down so I don't make a mess of the carpet on the way out.  Then I've got to get it onto the trailer and I've got to actually get rid of it to the tip eventually.

***        KEVIN MILLS                                                                                                                                 XXN MR WARD


I take it it was a little easier before COVID; you had easier access?‑‑‑Well, I had easier access, yes, everywhere, like (indistinct).  But there's still a thing, I've got to cover everything over, because the cleaners don't like me making a mess on the carpets.


I can understand that?‑‑‑Yes.


In paragraph 10 you talk about your skills you learnt in greenkeeping.  You say you used them all?‑‑‑Yes.


I'd be right that the greenkeeping qualification back then, is that similar to a general horticultural qualification back then, or is there some difference?  You might not know?‑‑‑Well, that's the thing, I was doing a little bit of horticulture with the course I was doing, and it just covered basic horticulture, which actually gave me my position into this Warrigal, you know what I mean; like it gave me the insight to get into there.  I have the certificates for greenkeeping and everything else.


Yes?‑‑‑And in my process of doing Warrigal, I took on a chainsaw certificate and things like that, operation, and other things, the manual handling and stuff like that.


What I'm asking you is, was the Certificate III in Greenkeeping, is it sufficient for you to do your job?‑‑‑Yes.  Yes, well and truly.


You talk I think in paragraph 16(e), you talk about 'hardscape.'  Does that mean you have to relay some pavers and things like that?‑‑‑Yes.  Yes, I have to do that too as well.


Is that because the pavers are broken?‑‑‑Some get sunk over time, and some do get broken by time as well.  They get griddled and stuff like that, and some do get soaken or raised up, and you've got to watch that for elderly residents with walkers.


Yes?‑‑‑(Indistinct) with their feet.  So I've got to look at that too, for trip hazards.