Epiq logo Fair Work Commission logo






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




9.00 AM, THURSDAY, 12 MAY 2022


Continued from 11/05/2022



JUSTICE ROSS:  Thank you.  We'll call the first witness, Mr Sewell.


MR McKENNA:  Your Honour, before we do, can we raise a couple of housekeeping matters?




MR McKENNA:  The first of this might be something that your Honour's proposing to deal with at the end of the day but the parties attended a mention before your Honour last Tuesday and there were discussions about proposed directions.  As far as I'm aware the directions haven't been made, I just wanted to make sure that that stayed on the agenda.  I'm not sure whether you wanted to deal with it now or at the end.  You're on mute, your Honour.


JUSTICE ROSS:  Yes.  The short answer is probably neither. Is there - what do we need to deal with?


MR McKENNA:  Just essentially the making of the directions.


JUSTICE ROSS:  Sure, but have you reached a - is there a consent position on directions or where are we up to?


MR McKENNA:  I'm sorry, I understood that the position that (indistinct) was the consent position between the parties but absent ‑ ‑ ‑


JUSTICE ROSS:  Yes.  I just haven't issued them yet, is that right?


MR McKENNA:  I believe so, yes.


JUSTICE ROSS:  That's fine.  I'll issue them.  All right.


MR McKENNA:  As the Commission pleases.  The second matter, your Honour, is that the final witness for today, Shane Wolseley will not be required by the ANMF and the HSU might have something to say on that as well.


JUSTICE ROSS:  All right.  Was that it from you, Mr McKenna?  Yes.


Mr Gibian?


MR GIBIAN:  There's nothing further from me.  I confirm that we don't require Mr Wolseley either for cross‑examination.


JUSTICE ROSS:  All right.  So we're good to go with Mr Sewell?  So we're good to go with Mr Sewell, we'll call Mr Sewel.  Thanks.


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


MR SEWELL:  Certainly.  My name is Mark Warwick Sewell and my work address is (address supplied).


THE ASSOCIATE:  Thank you.  And can you please repeat after me.

<MARK WARWICK SEWELL, AFFIRMED                                    [9.02 AM]

EXAMINATION-IN-CHIEF BY MR WARD                                      [9.03 AM]


JUSTICE ROSS:  Can everyone just make sure they've got their microphones on mute because I think it was you, Mr Ward, we're just getting a bit of feedback.


MR WARD:  Sorry.


JUSTICE ROSS:  All right.


MR WARD:  Mr Sewell, it's Nigel Ward.  Can you see me?‑‑‑Yes.


Good morning.  I wonder if you could restate your full name and address for the record?‑‑‑Mark Warwick Sewell, my work address is (address supplied).


And you've made a statement for these proceedings of 128 paragraphs dated 3 March 2022?‑‑‑Yes.


Do you have a copy of that statement in front of you?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                             XN MR WARD


And have you read it?‑‑‑Yes.


And is it true and correct to the best of your knowledge and belief?‑‑‑Yes.


For the Commission, can I indicate that Mr Sewell's statement is found at tab ‑ ‑ ‑


JUSTICE ROSS:  Just a moment, Mr Ward.


Mr Sewell, we're getting a bit of feedback which may be from your computer.  Can you put yourself on mute unless you're answering a question.  So I know this will be a bit tedious but you'll be asked some questions by counsel representing the union interests shortly and if you can listen to the question and then unmute yourself to answer it then we can hopefully avoid the feedback issue, all right?  Thank you.


Yes, Mr Ward?


MR WARD:  Sorry, your Honour.  Mr Sewell's statement is found at tab 254 in the digital court book it's 13233 to 13252, contains five annexures which can be found at 13253 to 13365 and we seek to rely on that and Mr Sewell is available for cross‑examination.


JUSTICE ROSS:  Thank you.


Mr Gibian or Mr Hartley, who's ‑ ‑ ‑


MR GIBIAN:  I think I'm going first, your Honour.


JUSTICE ROSS:  All right.


MR GIBIAN:  I don't certainly profess any technical expertise in this respect but people have whispered in my ear that the technical difficulties may be because either there is someone else in the same room with Mr Sewell who is also logged on even if they're - or he's logged on, on two devices but I mean, he's shaking his head.



***        MARK WARWICK SEWELL                                                                                                             XN MR WARD


MR GIBIAN:  It was just a suggestion.


JUSTICE ROSS:  No, no.  It's just reflecting only of you raising with me some sort of technological difficulty but look, I look, I think we'll try the muting and we'll just see how we go.


MR GIBIAN:  Yes.  Yes.  It's just literally something that's not happened until Ms Bradshaw yesterday afternoon and now Ms Sewell which is regrettable obviously but ‑ ‑ ‑


JUSTICE ROSS:  Yes.  Yes.  No, certainly.  Well, we'll see how we go.  All right.

CROSS-EXAMINATION BY MR GIBIAN                                         [9.06 AM]


MR WARD:  Mr Sewell, can you see and hear me?  Maybe hear me more importantly.  All right.  You're nodding?‑‑‑Yes, I can.


Do you want to just try and stay off mute for a moment and just see if we continue to have the problem?‑‑‑I could change my device.  I have another device, would that be useful?


Frankly I have no idea but maybe give it a go?‑‑‑All right.


JUSTICE ROSS:  Yes.  Let's try that.  Look, Mr Sewell, apparently - well, Mr Hartley tells us that since we're the only ones here but - well, perhaps Ms Saunders as well that knows much about this but there may be something in the speakers that you're using on that device which is causing the feedback.  So if you have another device, why don't you log out, come in.  I'll just confirm that you're still on oath when you come back in and then we'll kick off with Mr Gibian's questions.  All right.  So just bear with us a moment?‑‑‑All right.  Yes.  Yes.  Thank you, your Honour.  I'll do that.

<THE WITNESS WITHDREW                                                            [9.07 AM]

<MARK WARWICK SEWELL, RECALLED                                    [9.07 AM]



***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN

JUSTICE ROSS:  All right.  Mr Gibian, let's give it a go and Mr Sewell, I'll remind you, you're still under oath?‑‑‑Thank you.  I hope that's better.  Does it sound better so far?


MR GIBIAN:  It does, it does.  We'll hope if continues that way.  Well, thank you, Mr Sewell.  Firstly, can I just ask you briefly about Warrigal's operations, I think as you've described it's expanded quite substantially in recent years and is now quite a large operator in its own right and we're right - I'm right in understanding that there's 11 aged care facilities plus the retirement villages?‑‑‑Yes.  And an expensive home care program service as well.


And I was just going to ask you about that briefly.  With respect to home care, I think you've identified the various geographical regions in which the home care operations work.  From just looking at the history it seems that Warrigal staff had to get into home care in a more substantial way around 2011 or so when it acquired another operator, is that an accurate ‑ ‑ ‑?‑‑‑It certainly increased then but Warrigal has been doing home care earlier than that, probably from - well, the 1990s I would think.


And I'm right in understanding that that's maybe it includes but it's not limited to providing care to persons in the Warrigal retirement villages, it's people in their own homes in the community?‑‑‑Exactly.  More than 1500 people across all types of accommodation settings not just retirement villages.


All right.  Do you do some home care in your own retirement villages as well?‑‑‑Yes.


But that would be a smaller part of the 1500 I assume?‑‑‑Yes.


All right.  I understand.  Now, I think that I detected some - from some of the description in your statement at least that Warrigal's able to do some things because perhaps of its size that others - that other operators might not be able to do necessarily.  Further on in your statement, I don't know if you need to go to it but you do refer at paragraph 7 to Warrigal having operated at a deficit, I think, for about the last three years or so.  Another witness told us that the board had made a strategic decision to adopt that course, is that an accurate statement?‑‑‑Yes.  That was because we wanted to expand even though the government funding was insufficient to provide the existing services.


Yes, I was going to ask you about that, sorry, so the reason for that strategic decision was – sorry, the nature of the decision was to go into deficit for a period of time, that is a limited period of time?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


What was that period expected to be at the outset at least?‑‑‑Three or four years.


I perhaps assumed it had something to do with the pandemic but is that not accurate?  That is it predated the pandemic?‑‑‑It predated the pandemic.  It was related to IT investments into every aged care service and the quest to achieve 1000 beds which was our view that that is what's required to be a sustainable resilient aged care service.


I understand so it was really an expansion period rather than an ongoing deficit that was going to be involved in the provision of services?‑‑‑We have some services that have ongoing deficits and always have and probably will but the whole organization did not want to be in bottom line deficit (indistinct).


I understand.  I was just going to ask you briefly about the pandemic in that context.  I think you've made a number of public statements about the contributions that Warrigal employees have made and no doubt others in the aged care industry generally in the context of the pandemic.  It's obviously been a very trying time for operators and the staff in centres?‑‑‑Yes.


The reasons for that are obvious, that the infection control, PPE type requirements, the isolation that many residents have had to experience for extended periods and staff have had to as well operate in that context?‑‑‑A very difficult time.


I just wanted to ask you and it remains a big issue, that is there is some perception generally perhaps in the conduct in the community that the pandemic is receding but so far as aged care is concerned at least the concerns about the pandemic remain as critical as they have been?‑‑‑For older people and their care, that's definitely true.  They're the most vulnerable people in the pandemic and as the community relaxes its restrictions, the restrictions in aged care arguably could become even tighter.


Yes, indeed, that is the potential for outbreaks has in fact increased in some respects, given that there is greater case numbers in the community than there has, indeed, been at any time in the last two or two and a half years.  And Warrigal hasn't – well, there's been changes no doubt in the isolation requirements but the PPE and infection control procedures remain as stringent as they have been throughout the last couple of years?‑‑‑Yes.


You don't expect that to change any time in the immediate future?‑‑‑Certainly not for the remainder of this year.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


Would you also agree, is it also the case that from your experience at Warrigal at least that the pandemic has taught lessons in relation to infection control procedures generally in aged care, outside of COVID specifically?‑‑‑Yes, all our staff are now required to be infection control aware and follow the expertise of the infection control advisors.


Those are lessons which you, Warrigal at least, would wish to incorporate into the general provision of aged care services going forward, irrespective of what happens with COVID in coming years?‑‑‑I think, yes, definitely.


One other thing or arrangement that Warrigal seems to have in place that isn't necessarily, at least as we've heard in the evidence so far, common to other operators is in relation to governance.  You deal with governance from paragraph 28 onwards in your statement.  You do have a copy of your statement with you, do you?‑‑‑Yes.


Particularly at paragraph 32 you refer to – well, generally you introduce the accreditation requirements and the like that have been introduced and increased over the years, and then at paragraph 32 you refer to Warrigal having a dedicated quality compliance team.  How long has that been in place?‑‑‑It started about 12 years ago with one person.  It has now grown to about seven or eight and was originally an advisor but now is a central team assisting all our services.


When you say assisting, that is assisting by providing advice in relation to the regulatory and documentation requirements?‑‑‑Yes, internal auditing to verify the standards and compliance in all our services and receiving all incident report alerts before they're passed onto external bodies.


Just dealing with those two things in turn, in relation to auditing, there are obviously audits conducted of all of the facilities by the Aged Care Quality and Safety Commission.  Warrigal also does, in between those audits, conduct its own internal auditing processes, essentially aimed at looking at the same types of compliance with the standards for the purpose of ensuring that Warrigal is complying with the Aged Care Quality and Safety Standards?‑‑‑Yes.


The second matter you referred to reporting, is that a reference to the SIRS, Serious Incident Response Scheme?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


In that respect the obligations of reporting are on the provider, so Warrigal generally speaking.  I take it that the reports in relation to specific incidents falling within that – or required to be reported as part of that scheme are generated at the facility level by those who had been involved or witnessed the incidents, but the quality team – or am I right in understanding the quality compliance team would collate, make sure the reports are appropriate and adequate and forward those to the Commission?‑‑‑Correct.


At the end, the last sentence in paragraph 32 you refer to the cost of that team and you say without it a lot of work would fall onto our direct care employees.  Are you there referring to both the registered nurses or clinical managers and the care workers?‑‑‑Yes.


What's the work that would otherwise fall on those classes of employees that is at least in some respects alleviated by the compliance team?‑‑‑Each time an incident occurred they would need to then validate it against the SIRS reporting and other central standard rules and determine which category it met, whether the documentation was comprehensive and compliant, and then forward it onto the external body, whether that be the police or the Quality Safety Commission or the SIRS reporting portal.  So we do that for the managers and staff at each service without the central team, and any stand-alone homes in Australia that don't have that would be doing that themselves, probably on a shift by shift basis.


That is, as I think we mentioned just a moment ago, the initiating reports are made at the facility level but the double-checking and making sure that the report is adequate and sufficiently compliant to report to the police or the Aged Care Commission, whichever is appropriate, is in some respects at least alleviated from the workplace level.  Is that more alleviating work that would be done – again maybe this is a general question but likely to be done at the facility manager level or is that also work that would affect the reports that have to be done by the direct care work – the care workers or registered nurses?‑‑‑I'm not clear on the question, sorry, can you - - -


Yes, sorry, maybe that was unclear.  The work that you're referring to at the end of the – or the final sentence in paragraph 32 you described as being essentially a checking ensuring the documentation is all collated appropriately and covers the information that is necessary for the external report, correct?‑‑‑Yes.


Is that kind of work, if it wasn't done by the Quality Compliance Team, more likely to be done at the facility manager type level?‑‑‑Yes.


Now, so far as the aged care quality standards are concerned, the 2019 standards obviously produced some new compliance and documentation requirements necessary to satisfy the audits that the Aged Care Quality Safety Commission conducts; correct?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


In addition to that though of course, whether it's done in the most optimal manner or not, the purpose of the audit process and of the documentation and reporting requirements is to ensure that the Commission can be satisfied that the actual work done in the residential aged care is done consistently with the standards?‑‑‑Yes.


And those standards - I probably don't need to take them to you in detail, but they incorporated some changes in the way that it was expected or required that aged care would be conducted, aged care services would be provided?‑‑‑Yes, they were referred to the new standards for quite a while with comprehensive re-engineering of documentation, records and training.


One focus particularly was a change to a philosophy of more person centred care?‑‑‑Yes.


And that each provider is required to demonstrate how its staff meet that requirement, that is, implement care in a manner which communicates, accommodates and caters for the individual choices and independence of each resident to the extent that that can be achieved?‑‑‑Yes.


And that the staff have the skills, knowledge and abilities to implement - to provide care and indeed the other services in the facility in a manner which accommodates individual choice and independence?‑‑‑Yes.


That's what your quality compliance team endeavours to achieve or ensure is being done separately from the audits, and indeed in order to ensure that Warrigal doesn't have any difficulties with the audit process?‑‑‑Yes.


Now, you, and this is really from paragraph 34 onwards, refer to the impact of the increasing documentation and reporting requirements on the both registered nurse and the care worker categories.  And in a general sense, and I think this is consistent with much of the other evidence, the consequences of the reporting and documentation requirements are in general terms that the registered nurses and managers are to spend much more time undertaking documentation and reporting obligations rather than being directly on the floor providing care?‑‑‑I think they would definitely do both, but their administrative load has increased.


And that one consequence of that is, as you describe, that the care workers are performing more and more of the - more of the direct care work than would have been the case in the past?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


They are doing so with less direct supervision in the sense of the physical presence of the registered nurse or clinical manager?‑‑‑Yes.


You're relying more on indirect or general supervision of the direct care employees?‑‑‑Yes, the direct care employee needs to refer a matter to a supervisor rather than have their supervisor with them at all times.


And a consequence of that is that the care worker has to have the skills and knowledge and experience to identify types of issues or issues that may be of concern and need to be raised at the registered nurse level or clinical manager level, whatever it might be?‑‑‑Yes.


You rely upon the direct care workers and no doubt endeavour to train and equip them in order to identify, for example, the changes in the condition of residents or behaviour which might give rise to a clinical concern in relation to their health or wellbeing?‑‑‑Exactly.


Indeed that because they are more involved in the direct care work, the care workers are the people within the organisation who have the most direct contact with the residents and most detailed knowledge of their behaviour and general or at least usual condition?‑‑‑Yes, they get to know them quite well.


I assume you, like many other operators, endeavour to, to the extent you can, provide continuity of care in the sense of the same care workers will be dealing with the same residents on a continuous basis as you can?‑‑‑Yes, it's a very important factor.


Now, further down at paragraph 39 you make an observation in relation to care employees, or that care employees are not expected to determine if a clinical problem or issue has occurred.  They are required to report anything that's different from what they usually observe.  You see that?‑‑‑Yes.


That is, as you just mentioned, you expect, and indeed the system requires, or the care requires that the employee, the care worker, be able to identify something that is a miss or might be a miss in the behaviour or condition of a particular resident?‑‑‑Yes.


But you're not expecting them to necessarily diagnose a particular medical condition as a consequence of - they may have some ideas, no doubt, if they're experienced, that they might raise with the registered nurse, but not to make a formal diagnosis at least?‑‑‑No, that's right.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


If there is a concern that a care worker observes, that can be reported either directly to the registered nurse if it seemed to be a matter of some urgency.  No doubt it would be dealt with directly, or if it's more not seen as a matter of urgency, may be through the progress notes type process?‑‑‑Yes, correct.


If there's a matter, which is perceived to be at least potentially of some urgency which is raised directly with the registered nurse, I take it what you would expect then to happen is that the registered nurse and care worker would work together as a team to try and address the issue?‑‑‑Yes, the registered nurse would give the care worker some instructions to follow through in many cases.


Can you give me an example of how that might play out?‑‑‑So, a care worker may notice some changes, they may refer to the registered nurse, the registered nurse may speak to them over the phone or come and see the resident.  After their assessment they may ask the care worker to observe the resident for a while, or to give the resident some fluids or to put them back into bed, or something like that.


That is, assuming the registered nurse doesn't think there's an issue of urgency that requires an ambulance or something of that nature, they just want to see how things play out, they would, no doubt with appropriate instruction, ask the care worker to keep a particular eye on the resident to see if there's any deterioration or further change in condition which might suggest that something further needs to be done?‑‑‑Yes, and if the matter was serious, the registered nurse would take direct control of the person's care, and say that, 'I will now observe the person', or will ask another registered nurse to observe this person continually, or we will call the GP for a visit this evening, or we will, as you say, refer the person or call an ambulance and ask for a paramedic to assess this person for transfer to hospital.


Yes, I understand.  And all of that, as I think you described, is likely to be preceded by a discussion between the registered nurse and the care worker about what the care worker has observed, why they've got a concern, maybe the registered nurse would ask questions about the care worker's knowledge of the resident and their usual or customary behaviour?‑‑‑Definitely.  Particularly if the resident is non-verbal the care worker's observations and account will be very important.


Now, in relation to documentation requirements, as you've described I think, a good part of that, or some of that burden at least, falls at the registered nurse level and occupies a good amount of their time.  There are also documentation requirements with respect to the care workers directly; they are required to make progress notes, I think, each shift and complete charts in relation to medication or bowel movements or feeding and the like; correct?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


At paragraph 40, you refer to what's called the iCare system?‑‑‑Yes.


How long has that been in place?‑‑‑That would've been in place for at least 10 years at Warrigal with a progressive rollout home by home.


Does that system incorporate all of the documentation requirements, that is, everything is recorded through the iCare system?‑‑‑Most of the documentation would be in the iCare system, yes.


And it progressively replaced, I assume, a paper-based system that existed prior to - - -?‑‑‑Yes.


It has been able to accommodate - I take it the electronic system has been able to accommodate the greater and greater reporting obligations which have arisen over that period, that is, the amount of information able to be, and required to be, recorded and stored is facilitated in part by having an electronic system rather than a paper-based system?‑‑‑Yes, it's an external software system where the operators are aware of the aged care reporting requirements and have it upgraded on a regular basis to accommodate the reporting requirements.


I understand.  You refer to portable devices.  That's a reference to iPads or something of that nature, is it?‑‑‑That's right.


Does each care worker have an iPad in order to complete notes and charts or is it shared among the team?‑‑‑They share.  There might be one per small team, so it's often the most senior care worker in a team of people who will have the iPad on the trolley or with them and they will use it for immediate documentation completion.  Other care workers may tell that person what they need to complete, or they may save their completing records until the end of the shift where they go to the staff room or the staff portal and write into the computer their records.  So, there isn't an iPad for every single person, but there is certainly an iPad in every neighbourhood with every staff team.


When you refer to a 'staff team', are you referring to a group of care workers who work within a particular - it's usually part of a facility, a unit within a facility?‑‑‑That's right, two or three people looking after a neighbourhood of people who live there.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


You refer to one of the care workers as being more senior within that team.  Does Warrigal have a process of designating a particular care worker as being the experienced or leading team leader within each unit?‑‑‑That's right.  Some care workers are new entrants, others have a Cert III or are level 1 or level 2, some have a Cert IV qualification, some even might be enrolled nurses.  So, there is an extensive hierarchy of carers and each shift lead, the RN on the shift, determines who would be in charge of that group of carers.


That's done on a shift by shift basis, is it, the designation?‑‑‑Technically it is, but it's not unusual for people to quickly realise who it is because they're used to working together.


Yes, I'm sure it has some regularity to it, perhaps.  Is that a formal designation, that is, does the lead have a different position description or a different title, or is it just that they are just assuming more of a leadership role on a particular shift?‑‑‑No, they would be - they are all called carers, but they would know that they're a care service employee level 1 or level 2 or a team leader, so they would know (indistinct).


Is it a particular level that they could occupy that role, that is, do they have to be a level 1 or do they have to be a level 2 or does it just depend upon the group that happens to be rostered in a particular unit on a particular day?‑‑‑No, they would definitely know whether they are an employee level 1 or an employee level 2 or given different key responsibilities.


Sorry, maybe I wasn't clear.  I mean to occupy that lead role, do you have to be a level 2?‑‑‑Usually, yes, at least.


Usually?  All right.  And that person is a level 2 generally speaking, that is, whatever shift they are doing, whether they are the designated lead on a particular shift; is that right?‑‑‑Yes.


But they just happen to be a designated lead on a particular shift just depending upon the composition of the group within the unit on a particular day?‑‑‑Yes.


I understand.  You then talk about, from paragraph 46 onwards, the changing population or the characteristics of the resident population, that they are older, frailer, less mobile and have more complicated health conditions, particularly cognitive conditions as well.  There's a lot of statistics about this all - this is very clear, and I don't think controversial - and Warrigal experiences that in the same way as the aged care sector generally?‑‑‑Yes.


Or has experienced, I should say?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


You talk, in paragraph 52 at the top of page 9 of your statement, about at least some of the consequences of these changes for care work, that there's more work in physical support done in terms of lifting and repositioning people and dealing with basic care tasks that, because of their level of frailty and acuity, are more difficult for the residents to do themselves; correct?‑‑‑Yes.


The performance of those, at least what for some people might be relatively straightforward tasks of toileting, showering, eating and the like, can be very complex tasks for people with complex health needs or particularly if combined with cognitive difficulties?‑‑‑Yes, certainly.


Moving residents with severe mobility issues can be a complex task?‑‑‑Yes, certainly.


Even with - and I think you refer further on to mechanical aids that are now available or more available than they were in the past?‑‑‑That's right.


It's still necessary for the care workers to both communicate and negotiate with the resident in order to utilise the mechanical devices?‑‑‑Yes.


To learn how to do that safely in circumstances in which there is significant risk of injury to a frail resident if the move isn't done appropriately?‑‑‑Definitely.


All of those issues have made it even more complex if the resident, as happens, is resistant or confused as a result of cognitive issues or who is suffering from dementia?‑‑‑Yes.


Dealing with those tasks is assisted, I take it, by having experienced and skilled care workers particularly who have an ongoing relationship with a particular resident and know that resident and what works for a particular resident well?‑‑‑Definitely the relationship of trust between the carer and the resident is very important, particularly if the resident has fears or behaviours or is concerned about the tasks being put upon them, yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


In the last - sorry, I think there's only one sentence in paragraph 52, but towards the end of paragraph 52, you refer to care workers assisting residents with what you describe there as 'simple but repeatable tasks, such as toileting, showering, eating'.  I take by 'simple tasks' you mean day to day tasks, not that undertaking those tasks with frail residents or residents suffering from dementia is a simple task itself?‑‑‑No, they are definitely daily tasks, though, and many families assist their family members with those tasks.  We do it at a higher level in a work-related environment.  I meant that they weren't, in fact, medical or nursing or clinical by nature.


I understand and, indeed, residents now, as you've described in the preceding paragraphs, are really entering residential care now when they are unable to be cared for, care for themselves at home or beyond the ability of family and the like to care for them at home?‑‑‑Yes, they need 24/7 supervision at least.


Yes?‑‑‑That's really the reason they're there, yes.


The changes in the composition of the population of residential aged care residents that you refer to in paragraphs 46 to 50, you're referring there to residential aged care, I think, is that right?‑‑‑Mostly, although we have also noticed the changes of people living at home - - -


Yes?‑‑‑ - - -receiving home care and many of those people need direct physical daily care assistance as well.


Yes, that's really what I wanted to ask you, that is the consequence generally speaking no doubt, just as a matter of logic but I just wanted to check that it was also Warrigal's experience, is that if people are entering residential aged care later and in a condition with more complex health needs and in a frailer state, people are staying in their homes much longer and the impact is that also with respect to Warrigal's home care operations it's dealing with consumers who are older, frailer with more complex health needs?‑‑‑Definitely.


Just going on briefly, I think under the heading, 'Work Environment', you talk about the improvements to aged care or the physical environment aged care facilities and the expansion in the use of mechanical aids, such as lift or electric beds and the like?‑‑‑Yes.


At paragraph 60 you talk about the change in the beds and mechanical aids.  I take it, firstly, you're talking about Warrigal in that part of your statement?‑‑‑Yes.


No doubt I think there are changes more generally in other aged care providers but no doubt it's variable between providers to the extent to which this has been achieved?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


So far as Warrigal is concerned, I assume the expansion in mechanical aids that you refer to and the use of electric beds over the last 10 years or so, also has corresponded with an increase in need for such devices given the change in the needs of the residents?‑‑‑Definitely.


That is, you didn't need as many mechanical aids 10 years ago because much – a greater proportion of the residents were mobile and able to get around themselves without the need for those devices?‑‑‑Yes, correct.


Have the types of devices changed substantially?‑‑‑Yes, the new beds aren't cranked manually.  They're all electric and they often go right to the floor so that people who are at risk of falling out of bed can stay close to the floor without being checked regularly all night.  They'll often have much more movement of the mattress, so the feet will go up as well as the back, so the sophisticated beds are much better to use and to – either as a resident or a staff member.


I think you described it as hospital style so they are more like the beds you would see in acute care hospitals?‑‑‑Correct.  They can take egg crate air-filled mattresses to stop pressure sores and – exactly right.  They often look a bit more domestic.  Aged care providers often like to buy the ones with timber heads and foots and so on, without as much metal, but certainly the functionality is very similar.


It's the care workers who have the primary responsibility for utilising those beds, that is adjusting them in a manner which is appropriate for the particular residents and in a manner which will avoid the sores or pressure spots or the like of those kind of risks that you referred to?‑‑‑Yes, sometimes nurses or physiotherapists in the same home will offer guidance or adjust them or recommend how they should be set up for someone but generally it's care workers who adjust them in line with the wishes of the resident if they can express them.


Further down you go on to talk about the environment in home care, particularly at paragraph 66, that is that home care workers, I mean, always deal with different environments in the sense that they are visiting residents or consumers in their homes.  I just want to ask you, one consequence at least of the increasing age and frailty of home care consumers as well is that a greater portion would have difficulty not only looking after themselves but looking after their homes as well?‑‑‑Correct.


That affects the extent to which the home care worker is encountering physical environments that might be either unsafe or give rise to health concerns?‑‑‑Exactly.  An inaccessible bathroom in someone's home or one or two-step transfer from the back door to the backyard could be a major barrier.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


Perhaps that touches on the next question I was going to ask and that is that because of the increased frailty and the health conditions of home care consumers generally, there are also more safety concerns for the resident that the home care worker would need to be alive to in dealing with the home environment that the resident lives – that the consumer lives in, I should say?‑‑‑That's right, so every new home care customer has a safety risk assessment done on them and their home before our care workers provide the service and Warrigal provides a home maintenance and home modification service to adjust the environment to make it safer.


In addition to that, that is something that the home care worker when they're visiting on a day-to-day basis is expected to be observant of and denoting difficulties which have already been encountered by the resident or any potential safety concerns?‑‑‑Exactly so they report additional safety issues or emerging safety issues to their supervisor immediately.


Again, that's likely to lead to perhaps in the same way that we discussed with a registered nurse in a residential context, the care worker and the manager working together to see what could be done to address the issue that's been identified?‑‑‑Definitely.  Much more creative problem-solving though in a person's own home because they usually don't have those mechanical aids to assist in the same way as a purpose-built residential care home.


Are you able to give any example of creative problem-solving in that context?‑‑‑So sometimes a carpenter would be required to create next to the bed a grab rail so that the person, even though their bedroom may have been not able to take a hospital bed, they can use that grab rail to get in and out of the bed more safely.  There might be special rubber mats to lay on the floor of the bathroom to make sure there's not slip hazards if the bathroom floor is wet.  Or there might be a change to the kettle, so not a dial which can stay on, an electric one that cuts off, might be used if it's either dry or boiled.  So those kind of creative solutions, if you like, which are more domestic, are often employed.


That's obviously something that has to be discussed and negotiated with the resident as to what – to the consumer, I should say, as to what the appropriate solution is, and the care worker would be involved in that kind of process as the primary contact with the consumer?‑‑‑The care worker would raise it initially.  It would often be the coordinator of the service and the family, the primary relatives or substitute decision-makers may also be involved in that discussion.


Can I get you to go forward, then, to paragraph 88.  You start dealing with training and qualifications, do you see that?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


Firstly you note that much of your internal training and external training is now done online.  Do you see that?‑‑‑Yes.


Is that something that's been at least accelerated by the pandemic over the last couple of years?‑‑‑Yes.


That is, it was less so before 2020?‑‑‑Yes.


I take it that maybe it will go back a little bit as time goes on, we're all dealing with the changes in this respect, but I take it that Warrigal is satisfied that they're conducting the training in that manner in relation, at least, to the matters you deal with in paragraph 89 is appropriate and adequate?‑‑‑Yes, although there are some of those things that require an in person competency assessment afterwards.  I think I've referred to that in paragraph 90, so most online but sometimes things need to be checked physically, face‑to‑face to make sure that the learning has been adopted.


And that's what you do?‑‑‑Yes.


And then in terms of minimum qualifications, you say in paragraph 92 that you prefer the care employees to come with a Certificate III qualification, is that something that you do require of a new care worker or are you willing to have someone come and do the Certificate III once they start working at Warrigal?‑‑‑We would love to make it a requirement but unfortunately due to labour force shortages we've been unable to so it's a preference and we invite all our staff to get their Cert III after they've started and some do.


Do you have - that is, are you able to say what proportion of new employees would already have a Cert III, that is, is it a rarity to have someone without a Certificate III or is it something that you have to - in order to attract staff, waive regularly?‑‑‑We waive it far more than we would like to.  I think the last count we have about 30 per cent of our frontline carers with a Certificate III.  I would like it to be about 80 per cent.  We're reliant though on vocational training providers like for us that's TAFE New South Wales to have the training course places available and for workers to have the time and initiative available to pursue this training.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


What does Warrigal do to encourage or facilitate the staff to get the - either Certificate III and I think you refer to encouraging employees to get their Certificate IV as well?‑‑‑Well, certainly we are in close partnership with TAFE New South Wales.  We are seeking all the training places possible.  We advertise them directly to our workforce.  We make a way for those courses to be available and online or face‑to‑face at various TAFE campuses.  We make it easy for people to complete their placements and their 150 hours of online course in‑workplace placements in Warrigal and we chase as many staff as we can to complete their qualifications to get certified and we hold their records.


Yes?‑‑‑So we do everything we can if they use TAFE which is the government vocational training provider, we have a very close partnership, we're in a continual committee arrangement with TAFE and other aged care providers to maximise the take up of Certificate III courses in aged care in our regions.  Certificate IV staff will receive career opportunities, so they'll be automatically progressed to the next level of salary and given team leader responsibilities at Warrigal, so we encourage people to then go on further to get their Certificate IV.


Are you able to support any of your employees by covering any of the cost of obtaining the Certificate III or the Certificate IV?‑‑‑TAFE New South Wales courses, Certificate III for a person conducting their first training is free but we release a person from their duties.  Certificate IV we do have some scholarships that we offer definitely but we can't - we're not in a position to fund all the training costs for all our employees who wish to do those Certificate IV courses.


I understand.  You also referred to the Certificate III as providing baseline knowledge but at paragraph 93 you say:


It can't teach the attitude and maturity required of this role that we are looking for -


- maybe that should say, 'In personal carers'?‑‑‑Yes.


Agree with that?  And you refer then to the benefits of experience before undertaking that role.  I take it from that your view is that there are additional skills and knowledge obtained through experience beyond the baseline knowledge required in a Certificate III?‑‑‑Certificate III is a terrific training course to give the background and teach technical skills but it requires personal attributes of customer service and resilience and kindness that can't be taught so much but they're attributes and often they develop in people through a long‑term commitment to older people and their needs and we estimate that about three years people become very, very good at explaining why they do what they do and love what they do and we use them to talk to other people, new incoming staff who are considering a career in aged care.


Just two aspects of that.  One is you referred to matters of perhaps relationship - relational skills, that is, how to relate to the residents, communicate effectively with the residents as matters which are improved over time?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


I understood that correctly?‑‑‑Yes.


I take it you also - that the skills in terms of conducting particular activities, whether it be showering or toileting or the kind of medication processes and the like that care workers are involved in also improve over time in dealing with frail and residents with complex needs?‑‑‑Yes, I think so.  Any technical skill would improve over time definitely.


And you mentioned that through a year - sorry, I withdraw that.  And there was also certain matters so I think medication is an example where you require for the care worker to conduct medication or medication administration that they obtain a - or undertake the separate module in relation to medication and to be accredited by Warrigal by reason of a practical supervision to undertake that type of task?‑‑‑Yes.  That's an important task that requires specific training and competency checking.


In terms of the three‑year period you mentioned, I don't think that relates to any position description or new classification level within Warrigal's operations?‑‑‑No, that's my personal view.


Yes.  And is it based - it's not based on any particular study or anything, it's just a kind of impressionistic view that you have from your role?‑‑‑Yes, after 20 years with us and more than 1700 staff, I've observed that that's the case.  Some people would come to us with three years of personal care or direct care work experience and they would have that right from the start.


Now, you next, from paragraph 96, deal with engagement with external bodies - external persons and bodies and I think here you're talking both with families or resident representatives and external bodies such as the Commission or police or external medical professionals, correct?‑‑‑Yes.


Now, you do say something about engagement with families which seems to be a little different to what some of the other witnesses have - or the impression some of the other witnesses have referred to.  At paragraph 107 you refer to:


A decrease in engagement with family given the changes in the fabric of our society.


Do you see that?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


There's a couple of things about that; firstly, is what you're referring to there that families are maybe a bit less close‑knit than they were in the past in the sense that older people are less likely to live with extended family and the like?‑‑‑Yes.


And does that, in some instance, at least, in your experience, extend to the degree to which children or extended family take an interest in or are visiting persons who are in residential aged care?‑‑‑That's right.


That's what you're referring to?‑‑‑And the families are smaller as well as they used to be.  I was referring to longer term trends.


Yes.  In terms of such interaction as there is with family members, I think the Royal Commission noted and I think there's other views expressed in this respect that there has been over the last 10 years or so increase in expectation at least of some family members of the type of care that their family members are receiving.  Is that something that you have experienced?‑‑‑I've noted the Royal Commission's comments there.  We've always had very intrinsic relationships with families and high expectations by families over my 20 years with Warrigal, so we haven't seen an increase in that, but I think generally there are social expectations for customer service and quality of care that are higher and emerging - or a trend of higher expectations.  I can understand that.


I understand.  It's also an aspect of the 2019 standards that providers are expected to encourage both consumers themselves and family members to provide feedback and make complaints to the extent they're able to.  That's something that Warrigal has taken steps to endeavour to comply with?‑‑‑Absolutely, yes.


And how does it do that?‑‑‑We make sure we know who each person's primary family representative is, and we engage them in regular communications and seek their opinions, particularly if the resident is unable to communicate their own preferences and choices.


How is that communicated or the communication, how does that occur?‑‑‑Usually it's letters and emails and meetings, and all those are set up by the manager or deputy manager at the service.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


Now, can you go on to - it's starting at paragraph 112 you talk about the composition of the workforce, firstly dealing with residential care, and I think again refer to some of the changes in the composition of the duties, particularly of the registered nurses and care workers in the same way.  I just wanted to ask you in paragraph 112 to start with you again refer back to the change in client group service profile over the last two decades.  That's a reference to the declining health or increasing age and increasing frailty and acuity of residents?‑‑‑Yes.


You then say that:


The core nature of the work hasn't changed.  We are still supporting the oldest people in the community through to the last day of their life.


Do you see that?‑‑‑Yes.


I take it all you mean by that is - by the 'core nature of the work' is that the work being undertaken is providing personal care and assistance to older persons in a residential context?‑‑‑Yes.


And I think you've otherwise described how the nature of the personal care that is required and the requirements on the workers have been affected in a substantial way by the increase in frailty and acuity of the residents, and the increasing cognitive issues that residents experience?‑‑‑That's right.


Now, further on over the page at paragraph 118, you refer to certificate III or certificate IV qualified personal care workers or those with many years' of experience may be asked to provide input into care planning, be involved in shift handover, and be asked to give observations or feedback on regular contact residents.  Is that a reference to the lead person that we discussed earlier?‑‑‑Do you mean the last phrase?


I mean generally paragraph 118, or is that just a reference to anyone who's experienced or Certificate III/Certificate IV qualified?‑‑‑Yes, I think in practice it is often the most senior person in that small cluster of care workers, but there might be others in that group also who are asked to contribute or participate in care planning (indistinct).


Well, maybe if I can just take those three things in turn.  Firstly, you say give input into care planning.  As I understand it generally speaking, and tell me if Warrigal's different, all of the care workers have some input into care planning in the sense that the progress notes and feedback from the care workers are utilised in relation to considering and adjusting care plans to the extent necessary?‑‑‑Yes, they would be monitoring changes in the person, and that record would then be taken up by somebody else who would use those records to develop a care plan.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


And that is also a mechanism by which changes in the preferences and choices of the resident will be communicated as well?‑‑‑Yes.


When you're referring to a certificate III or certificate IV qualified care worker or a more experienced care worker providing input into care planning, are you talking about something over and above that process?‑‑‑Yes.


And what is that?‑‑‑So a person ‑ ‑ ‑


How would that work?‑‑‑ ‑ ‑ ‑who's writing the care plan would usually be the clinical nurse specialist or the RN, and they may ask for those people I've listed there to come and see them, or send them notes, or contribute to the thinking around how the care plan develops.  They may even ask to have a look at the draft care plan.  They may even be asked to attend the general meeting where, not only the registered nurse is, but also the family members are, and contribute to how the care plan develops in a consultative way.


I take it the purpose of that type of process is to have a team approach utilising the, to the extent there's more clinical skills in the registered nurse, but the hands-on knowledge that the care worker has of the resident and their conduct and behaviour and desires and the like?‑‑‑Yes, exactly.


Is that just a matter of the clinical nurse specialist, if that's the person involved, then making a decision about who might be an appropriate person to be involved in that process?‑‑‑Yes, they would be filling in the care plan or developing the care plan and feel that they don't have a full picture or knowledge of this person's preferences, and may ask other staff to contribute, or they may know the person well themselves and not need it.


That's up to the clinical nurse specialist.  There's not a specific classification of care worker or a specific role that has that responsibility.  It could be any of the care workers, depending on what's appropriate in the particular case?‑‑‑That's right.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


The second matter you then refer to is shift handover.  Is there a particular person on each - that is, is the lead care worker particularly designated in each shift to undertake a specific handover function?‑‑‑In our experience the RN in charge of the shift convenes the shift handover between the departing staff and the arriving staff, and some places have a practice of all the departing staff are standing in a circle with all the arriving staff, with the RN leading that discussion.  In other places it'll be one person from each neighbourhood, and that will be the person who is the most experienced or qualified care worker contributing to that feedback discussion, often related to the staffing level in the home at that time.


Sorry, that is, whether it's a group or an individual will depend upon the staffing level?‑‑‑Yes.


I understand.  And is there specific time designed for the handover function?‑‑‑Yes, I ‑ ‑ ‑


That is, overlap of shifts?‑‑‑Yes, that's right.  I attend them quite often, and sometimes they're as short and sharp as 10 minutes, sometimes they're half an hour.  It depends on the rostering arrangements and the history at that care home.


And the last matter you then refer to is observations and feedback on regular client residents.  Again, all care workers are making observations and providing feedback in relation to regular residents through their progress notes, or if there are particular issues that arise directly with other care workers or the registered nurse; correct?‑‑‑Yes.


Are you referring to some additional specific function that you get certificate III or certificate IV or the more experienced care workers to undertake?‑‑‑Everyone does the standard observations and recording regime, but some may be asked to do additional input into the care planning process on top of that, as I said earlier, as part of the consultative collaborative process.


Does that also happen in a more clinical context in the reference to observations and feedback, that is, if there were particular clinical concerns, the more experienced care worker might be asked about their experience and observations?‑‑‑Yes, particularly in relation to the escalation of dementia or difficult behaviours (audio malfunction), yes.


You annexed the position descriptions.  Can I just ask you about them briefly.  They are at annexure MS2.  Do you have those with you?‑‑‑Yes.


For the record, they start at page 13269 of the court book.  I don't know whether you have any page numbers on them, Mr Sewell, but you can find the first one, can you, with MS2 written at the top?  It's the position description for care service employee grade 1?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


Firstly, I think so far as care workers are concerned, the position descriptions you have provided are for grade 1, grade 2 and then grade 4 level 2?‑‑‑Yes.


Do they correspond with the classifications in the enterprise agreement, or intended to?‑‑‑Yes.


Does that mean that you don't have grade 3 or grade 4 level 1?‑‑‑No, that's right.


That is you just don't employ anyone in those roles?‑‑‑Yes.


I think grade 3 is a supervisory type position.  You just don't have anyone designated in that role; is that right?‑‑‑We use our grade 4 level 2 for that purpose.


All right, I understand.  Just briefly, if you firstly just go to the care service employee grade 1.  The second page of that document sets out the key responsibilities.  Sorry, perhaps before I ask that, I think you mentioned earlier a new entrant.  Does a new entrant go straight to level 1 or is there a new entrant before level 1?‑‑‑New entrant has a particular new entrant pay rate for a number of hours, but they fulfil the responsibilities of grade 1, largely.


That's what I assumed.  Grade 1, the key activities are broadly dealing with the activities of daily living and completing appropriate documentation and consultation in relation to planned care?‑‑‑Yes.


That's how we understand it?‑‑‑Yes.


If you go to grade 2, which is the next document commencing the court book number, for the record, at 13272, it refers to, firstly, on the first page under 'Function' to the person undertaking, in the final sentence, specific care functions of a higher level?‑‑‑Yes.


Under general supervision.  Then if you go over to the second page of that document, under 'Key Responsibilities', the difference to level 1 seems to be that there is a greater involvement in - well, the first dot point refers to the activities of daily living in the same way as grade 1, but there is then a reference to more clinical tasks involving medication, wound dressings, continence programs, more clinical observations, blood pressures, temperature and the like and involvement in blood sugar levels.  Is that the essential difference between grade 1 and grade 2?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


How does Warrigal determine who is grade 1 and who is grade 2, that is, does it designate particular care workers who undertake work of that function and they are now designated as grade 2?‑‑‑Yes.  Care workers put their hand up and are assessed - are trained and then assessed if they are competent to do those additional key responsibilities, and then they are allocated to that grade.


I understand.  And there's separate training and assessment for each of those tasks that I, in summary, went through, that is, medications, dressing and the like?‑‑‑Yes, exactly.


Finally, there's a grade 4 level 2.  That position description commences at page 13275 and, on the second page of that document, there's an essential requirement, being a Certificate IV or deemed equivalent?‑‑‑That's right.


Is that the essential difference with the grade 4, that is, the qualification requirement?‑‑‑Yes.


Otherwise, the key responsibilities that are listed further down that same page, the second page of the position description, are framed somewhat differently, but they broadly seem to cover similar elements to the level 2; is that a fair assessment?‑‑‑Yes, they are, though, permitted to liaise with doctors and other health professionals external to the service and report - there's a stronger confidence in their reporting of health status changes and they are asked to communicate with families, and they often end up being the team leader for several neighbourhoods.  So, there's a bit of team leader responsibility and team oversight work required from them as well.


I understand.  I think there was just one more matter.  If you can just go back to your statement, right at the end of the statement, at paragraph 125, you talk about - or from 124, you discuss medications.  I think maybe you just mentioned this, but, in addition to a Certificate III or a Certificate IV, in order to undertake medication functions, there would be internal training and competency assessment?‑‑‑Yes.


In the second sentence, you refer to that ensuring that the carer has what you describe as 'minimal knowledge of the framework of medications and side effect' and understanding what the nurse might say about the medication; do you see that?‑‑‑Yes.


I take it you mean - well, firstly, by saying 'minimal', you mean sufficient knowledge in order to administer medications?‑‑‑Yes, sufficient.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


That is, some knowledge of the different types of medications and what they are for and the potential side effects of them so that they can undertake that role and observe and document the taking of medications in a manner which is safe and satisfactory?‑‑‑Yes.  There's a very broad range of medication giving, everything from a Panadol given orally all the way through to intravenous medications via injection and understanding how they are to be administered, understanding what the medication side effects might be, understating the contraindications between different medications if they are given together.  That's a complex science, but the basic and fundamental and adequate understanding of the medications that are generally given by someone who doesn't require a degree or a nursing qualification is required there.


At paragraph 126, you describe a general overview of how this might be done, or a medication process, and that's a description of the personal care worker conducting the medication rounds themselves without the direct supervision at least of the registered nurse?‑‑‑That's right.  One of the big technologies in medication giving is the packaging in blister packs of medication.  That takes out some risk and has enabled the administration of medication in a safer way.


Yes, I understand.  The blister pack-type processes are used for oral medications?‑‑‑That's right.


The care workers would also administer eye drops, lotions, creams, et cetera, of a medical nature?‑‑‑If a registered nurse requires it or asks for it to be done and after the person has been trained, yes.


Where at (d) you refer to assisting or observing the resident taking medication, that includes preparing the medication in a form which can be taken by the resident, which may be crushing it or mixing it with some form of food or the like?‑‑‑Yes.


It also includes dealing with a resident who may be resistant or refusing medication?‑‑‑Yes.


And using the type of relationship and skills that they have in dealing with the resident more generally who's resistant to undertaking various activities?‑‑‑Yes, definitely.


You then annexe at MS4 the medication procedure.  That's a document that a care worker is expected to be familiar with if they are trained and competent in medication administration?‑‑‑Yes.


There's then a separate – you then I think from paragraph 128 refer to a medication in the context of home care?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


Again, is there a training and competency requirement before the home care worker would be involved in medication?‑‑‑Yes, although many home care workers supervise the older person taking their own medication.  The worker is not actually giving it, they're supervising the resident taking it themselves.


Just so I can understand that answer, were you referring to two things?  That is, is all medication in home care in a sense the resident's own or are there instances in which the care workers has a role in the provision of the medication to the resident?‑‑‑Most of the time the resident has their own medication and they can take it any time they wish.  It's convenient and safer for them to have that schedule to be taken when a supervising carer is there to supervise them take it.  In some increasing instances the resident would have the medication in a locked cupboard and our carer would have the key and release the medication to be given only when the carer is there, and that's when the carer would be competent to administer or supervise medication giving.


I take it that occurs because either the carer or the coordinator or perhaps the GP is concerned that the resident would not – maybe not deliberately but inappropriately or misuse the medication or fail to take it in an appropriate manner at least?‑‑‑Correct.


That process also, if I can just go to MS5 lastly, that's the procedure for home care, it commences at page – it's the last annexure to your statement, I think, Mr Sewell.  It starts at page 13,462 of the court book?‑‑‑Thank you.


It identifies the responsibilities of the various employees in the box – employee classes in the box on the first page of the policy and the support worker is the last box.  So you require the home care worker to maintain, at 4.2 maintain medical competency, be able to identify document potential adverse effects that it may have for the consumer.  Do you see that?‑‑‑Yes.


I take it that's, in a sense, even more important in a home care context in the context in which there's not immediate support available or liaison available with a nurse physically in the same locality?‑‑‑That's right.  They're instructed to immediately contact the coordinator if they have any concerns about something going amiss during that process.


I think you – well, that is, the expectation is the training and skills of the care worker will allow them to identify that something might be going amiss?‑‑‑Yes.


And in that circumstance they should contact the coordinator?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                         XXN MR GIBIAN


I think you otherwise refer to that there is support by the coordinator and the care worker would ordinarily receive a response within 15 minutes.  Is that your expectation?‑‑‑That's what we hope for, yes.


Yes, that is your hope.  Is it always achieved or - - -?‑‑‑No.


No and so if there is some either medication-related or otherwise medical issue that the home care worker observes that it perhaps is more urgent than a 15 minute wait, they would make an assessment as to whether an ambulance ought be called?‑‑‑Correct.


Can I just have a moment?  That's my cross-examination, your Honour, thank you.


JUSTICE ROSS:  Thank you.  Mr Hartley.


MR HARTLEY:  Yes, your Honour.  If I might have the same three-minute indulgence as yesterday to just check my notes, that would assist.


JUSTICE ROSS:  No problem.  We'll just take a short three-minute break but if you can all remain connected but by all means turn off your cameras.


MR HARTLEY:  Yes, Commissioner.

<THE WITNESS WITHDREW                                                          [10.26 AM]

SHORT ADJOURNMENT                                                                   [10.26 AM]

RESUMED                                                                                             [10.29 AM]


JUSTICE ROSS:  Good to go, Mr Hartley?


MR HARTLEY:  Yes, thank you, your Honour.

<MARK WARWICK SEWELL, RECALLED                                  [10.29 AM]

CROSS-EXAMINATION BY MR HARTLEY                                  [10.29 AM]

***        MARK WARWICK SEWELL                                                                                                     XXN MR HARTLEY


MR HARTLEY:  Mr Sewell, thank you for your patience as well.  My name is Jim Hartley, I'm one of the barristers for the ANMF.  Can you hear and see me all right?‑‑‑Yes.


Great, thanks.  You've still got your statement to hand?‑‑‑Yes.


Could you turn to paragraph 58, please?‑‑‑Yes.


In the second sentence of that paragraph you say that your observation is that:


Residential facilities are safer for residents and employees.


Do you see that?‑‑‑Yes.


Over the page you speak about electronic lifters and things of that kind about which Mr Gibian asked you and I won't go over that.  That's the type of thing that you had in mind when you said that facilities are safer for employees, is it?‑‑‑Yes.


It's the case as well, though, isn't it, that given that there is this shift in Warrigal and elsewhere from what you might call a broad style arrangement to single rooms with ensuites.  That is the trend that you've noticed, isn't it?‑‑‑That's right.


So that's going to involve more walking for personal care workers and nurses from room to room, that's a by-product, isn't it?‑‑‑A lot of walking, that's for sure.


Yes and it's more difficult in comparison with the ward style setting for nurses and personal care workers to keep all of the residents under observation?‑‑‑Yes, that's true.


In the same way it's more difficult for nurses and personal care workers to be under observation by their colleagues should some sort of a complication or difficult situation arise?‑‑‑Direct line of sight supervision, that's true.


Yes, thank you.  Can I ask you some questions about paragraphs 84 to 87?  You're talking here about technologies and I gather Warrigal is reasonably happy with the iCare care record system?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                     XXN MR HARTLEY


But it would be the case, and tell me if you don't have the experience to answer this but some apps perhaps in other aged care facilities, might be less easy to use?‑‑‑They may be, yes.


Fewer features create inefficiencies.  Does that all sound plausible to you?‑‑‑Yes, we did extensive research on various systems and they are fairly similar to each other.  The ones that are developed for the aged care record system?‑‑‑In some workplaces there may be a shortage of actual hardware and that might create inefficiencies?‑‑‑Each provider arranges their own IT system including hardware, software and network capability, that's true.


Yes and you might have, and I think you refer to this at paragraph 40 of your statement, you can check it if you like, but it happens perhaps because of shortage of hardware or perhaps because of the way that individual nurses or care workers are comfortable performing their work, that they might write a set of notes one time in a paper notebook and then write it a second time in the electronic documents action system?‑‑‑Very common practice, yes.


Thank you.  Paragraph 93 of your statement, you refer to a certificate 3 not being able to teach the attitude and maturity required of the role and you were asked some questions about that and I think you identified attributes and characteristics that come with time on the job.  I just wanted to develop that with you if I could.  Is the type of thing that you're referring to there, for example, the ability to piece together resident information, past traumas, for example, to better understand present behaviour?‑‑‑Yes, that's possible, yes.


Developing a fine-tuned knowledge of a resident's idiosyncrasies and preferences to support smooth patterns of hygiene, meals, sleeping, that sort of thing?‑‑‑Yes.


Being alert, indeed, to co-workers' emotional pressures, strengths and needs?‑‑‑Yes.


Quickly picking up early warning signs of impending disturbances or an approach that isn't working?‑‑‑That's right.


Observing, responding to, reporting even very slight changes in residents?‑‑‑That's true.


Adapting one's voice, tone, body language to knowledge of how it is that residents would best respond?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                     XXN MR HARTLEY


Indeed, dealing increasingly with residents from different language groups and ensuring that residents either within the same language group or between language groups are able to interact?‑‑‑Yes.


Assessing the urgency and importance of simultaneous pause on the worker's attention?‑‑‑Definitely.


Smoothly switching back and forth between work that is individualised to one particular resident and then work within a team?‑‑‑Yes.


Thank you for that.  Now, very briefly, at paragraphs 96 to 111 – and I should say that's not an exhaustive list.  You could think of many other attributes that care workers and nurses would have which might fall into the category of characteristics or descriptors of the work that they perform which improve over time?‑‑‑Yes.


You'd agree?‑‑‑Yes.


I was going to ask you, at 96 to 111 you describe engagement with families and Mr Gibian asked some questions, I won't cover that ground.  But it's been your experience, I assume, that sometimes families can be rude to care workers and nurses?‑‑‑Yes.


They might take out frustrations on nurses and personal care workers?‑‑‑That's right.


There might be situations where a personal care worker or a nurse has got to perform a very quick judgment about whether that is a situation that the nurse or personal care worker can deal with or whether it's got to be escalated?‑‑‑That's right.


With the introduction of the 2019 standards and perhaps it's a matter of best practice even before, there's this concept of open disclosure with which I'm sure you'll be familiar?‑‑‑Yes.


Open disclosure requires a lot more initiating of contact from the facility, from nurses and personal care workers to families.  Has that been the experience at Warrigal?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                     XXN MR HARTLEY


Then the last issue I want to ask you about is at 123 of your statement, if you could turn there, Mr Sewell?‑‑‑Yes.


Here you're talking about home care and if you want to get the context it starts at 119 but at 123 you say:


Carers are not usually required or expected to make judgment calls –


dot dot dot –


unless it's an emergency situation such as calling an ambulance.


Do you see that?‑‑‑Yes.


You agreed with Mr Gibian, I think, that increasingly it's the case in home care because of demographic trends that residents will be frailer?‑‑‑That's true.


So the potential for emergency situations arising is greater now than it was, say, when you commenced with Warrigal?‑‑‑Yes.


Are there other emergency situations that you had in mind other than calling an ambulance which is the instance that you give there?‑‑‑Mostly that's the place to go, that is the most common assistance required.  Sometimes the resident or the customer in their own home will prefer a relative to be called.  The care worker may preference the organisation or an ambulance but the ambulance is the most common call if things are escalating.


It's also the case, I assume, that in Warrigal's experience there's been an increase in the number of consumers or home care residents with dementia or other cognitive issues?‑‑‑Yes.


That can lead to unpredictable or challenging behaviours?‑‑‑Definitely.


It's the case that an emergency situation might arise in which a care worker is required to deal with such unpredictable behaviours?‑‑‑Yes.


That's more so the case now than it was, say, 20 years ago?‑‑‑Yes.

***        MARK WARWICK SEWELL                                                                                                     XXN MR HARTLEY


If you could just give me one moment, Mr Sewell.  That's the cross-examination for the ANMF if the Bench pleases.


JUSTICE ROSS:  Thank you, Mr Hartley.  Re-examination, Mr Ward?


MR WARD:  Thank you, your Honour, just a few questions if I can.

RE-EXAMINATION BY MR WARD                                                 [10.38 AM]


MR WARD:  Mr Sewell, can I take you back about an hour and a half ago, Mr Gibian was asking you questions about paragraph 39 and you gave some evidence about care workers making observations and reporting back to the registered nurse.  Do you remember giving that evidence?‑‑‑Yes.


I wonder if you could give some examples of what types of observations they might be making that lead to them reporting back to the registered nurse?‑‑‑So they might notice someone is sadder and wanting to be on their own and not wanting to go to the dining room for lunch or not wanting to do their usual activity.  They may notice that they look dishevelled or have paler skin or have not sat up or woken up to the extent they usually would.  They may notice that they are agitated or aggressive or unable to walk carefully and calmly to their ensuite or their bathroom and back.  They may notice that they're saying things that they've not said before or would say normally.  So they're the kind of behaviours that they might report to the registered nurse.


Mr Gibian then took you to paragraph 124 dealing with medications and you were talking about what a personal care worker who's medically competent might be observing for when the resident had taken the medication and you used the phrase contraindication.  Can you tell me what they might actually be practically observing which might lead them to go to the registered nurse?‑‑‑So if a new medication has been prescribed by the pharmacist or by the doctor and packaged by the pharmacist, the care worker may realise when they're popping the tablets and giving them to the resident that there is an additional mediation and if there's a side effect or a concern, if they're with them for the resident afterwards, they may ask the RN, 'There's a new medication here.  What are the contraindications that I should be observing', or 'I noticed after this resident had this extra new medication that they don't seem well.  Can you come and check this person to see if this new medication mixed with the other medications is causing some concern.'  So that's the kind of thing I was referring to.

***        MARK WARWICK SEWELL                                                                                                          RXN MR WARD


When you say, 'Don't seem well', what are you referring to?‑‑‑Again, their skin might seem clammy, they might seem extra tired or unsteady on their feet.  They might be either quieter than usual or speaking more than usual, those kind of behaviours are sometimes indicative of contraindications.


Mr Gibian I think lastly took you to home care workers and you gave some evidence about medications being locked in a cupboard and the home care worker getting them out.  Would that be something that would be set out in the care plan?‑‑‑Definitely.


And then very lastly, Mr Hartley discussed with you when he referred to paragraph, I think 93, your comments about attitude and maturity, he described a number of I think what were described as characteristics of people and you agreed with him on those characteristics.  In your experience have those characteristics always been present in your workforces?‑‑‑Amongst some people, yes.


Which people might they not have been?‑‑‑Not everyone has the interpersonal maturity and innate personal to manage complex things or understand people or read those behavioural signs.  Some people can manage busy workloads better than others or cope with stress better than others.  So over time with experience, some people actually use those attributes to become very strong and exemplary aged care workers.


Thank you, Mr Sewell, for your evidence.


I have no further questions in re‑examination.  Might the witness be excused?


JUSTICE ROSS:  Thank you for your evidence, Mr Sewell, you're excused?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW                                                          [10.43 AM]


JUSTICE ROSS:  And the next witness is Mr Smith.


THE ASSOCIATE:  Mr Smith, can you see and hear me?


MR SMITH:  I can.  Thank you.


THE ASSOCIATE:  Can you please say your full name and work address?


MR SMITH:  Craig John Smith, (address supplied).

***        MARK WARWICK SEWELL                                                                                                          RXN MR WARD


THE ASSOCIATE:  Thank you.  And now can you please repeat after me.

<CRAIG JOHN SMITH, AFFIRMED                                                [10.44 AM]

EXAMINATION-IN-CHIEF BY MR WARD                                    [10.44 AM]




MR WARD:  Thank you, your Honour.


Mr Smith, it's Nigel Ward.  Can you see me?‑‑‑I can, yes.


Thank you.  Mr Smith, can I ask you to state your full name and address again for the record?‑‑‑Work address?


I'm relaxed, it can be a work address or your residential address?‑‑‑All right.  Craig John Smith and work address is (address supplied).


And you've prepared a statement for these proceedings of 104 paragraphs dated 2 March 2022?‑‑‑That's correct.


And you've got a copy of that statement with you, Mr Smith?‑‑‑I do.


And you've read that statement?‑‑‑I have.


And is it true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.


For the Commission, Mr Smith's statement appears at tab 253 and in the digital court book that's 12759 to 12774.  There are seven annexures to Mr Smith's statement to be found at 12775 to 13232 and we rely on Mr Smith's statement.  Mr Smith is available now for cross‑examination.


JUSTICE ROSS:  Thank you, Mr Ward.


Who's up first?

***        CRAIG JOHN SMITH                                                                                                                       XN MR WARD


MR HARTLEY:  It's me this time, your Honour.


JUSTICE ROSS:  All right.

CROSS-EXAMINATION BY MR HARTLEY                                  [10.46 AM]


MR HARTLEY:  Mr Smith, my name is Jim Hartley.  I'm one of the barristers for the ANMF.  Can you see and hear me all right?‑‑‑I can.  Thank you.


Great, thanks.  You've got a copy of your statement there with you, have you?‑‑‑I do.


I'd like to ask you some questions about the 2019 Aged Care Quality Standards.  Can you start by looking at paragraph 16?‑‑‑Yes.


So just to situate you in your statement, here you're talking about regulations applicable to Warrigal's operations?‑‑‑Correct.


And starting at 18 or so you're talking about changes in those standards over time?‑‑‑That's right.


And can you have a look at paragraph 25?  I think what you're identifying there is that the focus of the previous accreditation was on clinical care meeting particular standards.  Do you see that?‑‑‑Yes, I do.


26 you refer to the 2019 Aged Care Quality Standards being introduced?‑‑‑Yes.


And at 28 you draw attention to the fact that the ACQS - if I call it the ACQS, that makes sense to you?‑‑‑Yes, it does.


Great.  So the ACQS adds a requirement for what you might call an individualised consumer focus, is that a fair summary?‑‑‑That's correct.  Yes.


And you give an example at paragraph 29 of a care plan and you say that the consumer is now involved in the development of that document, that that's an instance of the more individualised approach to care?‑‑‑Yes.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


And the approach that's now adopted by Warrigal is the registered nurse and the consumer now set care plans together?‑‑‑Yes.


Is that so?‑‑‑That's correct.


Yes.  And you say at the end of 28 that that's required Warrigal to refocus its approach to the production of the care plan?‑‑‑Yes.


And so that would also require Warrigal's registered nurses who are involved in the production of a care plan to refocus their approach to the production of a care plan?‑‑‑Yes, that's correct.


And if you have a look at 31(b) across the board you say one of the results of the implementation of the 2019 Standards is that ECWs and RNs now need to have improved communication skills to determine needs and goals, yes?‑‑‑Yes.  Yes.


And that's just one example but there might be many others of what you describe in the body of 31 namely a shift from a task based and regimented approach to care to consumers having greater involvement?‑‑‑That's correct.


Are there other examples that come to mind beyond the three that you set out in 31?‑‑‑Beyond the care plans you mean?


So in 31 you say:


The main impact is the shift from task based to regimented.


And then you say care plans, and then (b) is improved communication skills and then (c) is care being provided then in accordance with that care plan.  Are there other examples that come to mind of the effect on the provision of care that has been brought about as a result of the introduction of the 2019 Aged Care Quality Standards?‑‑‑Well, off the top of my head, I'd need some time to think about that but I guess what I was trying to say there was that prior to this the care was determined by the staff and in accordance with the clinical needs where now we are more focussed on asking them for their goals and working towards those goals.  So as a result of that, some of those goals might not necessarily be in the care home.  It might be that they want to, you know, go out more.  They might want to socialise, you know, and go to their child's wedding or something.  So I guess there's a lot more than just the care plans about having to have individual goal setting in those as well.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


Yes.  And so it requires, I think in that answer you refer to first of all, understanding what those goals or preferences or aspirations are and that would be something that nurses and personal care workers would be involved in, they would be understanding those needs, goals, preferences, et cetera?‑‑‑Yes.


And then the delivery of the care in a way that actualises needs, goals, preferences, that of course as well is nurses and personal care workers?‑‑‑Correct.


And so other examples might be, for example, that nurses and personal care workers are required to work in a manner that's more flexible, to account for preferences, needs, behaviours, is that fair to say?‑‑‑Yes, absolutely.


They might be required to prioritise and reprioritise and reorder their work so as to deal with needs, preferences, behaviours that might arise in the course of a day?‑‑‑Yes, definitely.


So it's fair to say then that the introduction of the 2019 standards has resulted in the change and the nature of and the skilled involved in the work of providing personal care and nursing care to the residents of Warrigal's facilities?‑‑‑Certainly to be more flexible.  I mean the skill involved in delivering the actual duties would be similar, but there's different skills, in terms of being flexible, communication, time management, so those skills would be different, yes.


So if I can take you to 32 and 33 of your statement, in light of this exchange that we've just had, the point that you're making here is that at the highest level of abstraction, the work that's being performed is still nursing and care work, but the 2019 standards require it to be performed in a different way, in a person-centred way?‑‑‑Correct.


Is that a fair summary of those paragraphs?‑‑‑Yes, it is.


Here, of course, you're just dealing with changes to the work, as a result of the 2019 standards, whereas other changes caused by, for example, the ageing population, you deal with those elsewhere in your statement, starting at, for example, 60, is that right?‑‑‑I'll have to look at 60.


Yes?‑‑‑That's correct.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


Great.  Now, sorry to make you jump around, but could you come back to 41?‑‑‑Yes.


So here you start to talk about the National Aged Care Mandatory Quality Indicator Program, I'm not sure that there's such a good acronym for that one?‑‑‑No, that's right.


But the rest of the questions, until I tell you otherwise, will be about this?‑‑‑Sure.


So when you give evidence, at 45, for example, about what information gathering systems people might have, you're speaking based on, first of all, of course, your experience at Warrigal, is that right?‑‑‑Yes, that's right.


Then, secondly, your previous role, at the Illawarra Retirement Trust?‑‑‑Correct.


Beyond that, of course, other providers might have had different approaches to what information they collect?‑‑‑Yes, that's right.


Now, just in terms of what that reporting requires, you say or you list at 43 that ISE(?) Act providers have to collect and report on the indicators that you set out there, do you see that?‑‑‑Yes.


I just want to drill down into that a little bit, if I can.  I assume that the process of collecting and reporting on those indicators would involve, in the first place, nurses and personal care workers documenting, for example, a pressure injury or the use of a physical restraint, or a fall?‑‑‑Correct.


That might be done in progress notes?‑‑‑That's right, or incident forms.


Or incident forms.  If it's the case that a personal care worker notices, for example, a fall, then there would be a report made also to a registered nurse?‑‑‑Correct.


Now, at some point those matters will go to what you call a compliance team, and the compliance team is responsible for then reporting it to whoever it is that needs to receive the report?‑‑‑Correct.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


Now, at 48 you refer to the major impact of the NACM, et cetera, being that the clinical care team need to document and follow through and the sentence continues.  I couldn't see, in your statement, a definition of clinical care team.  I assume that includes registered nurses?‑‑‑Yes, that's correct.  So the clinical care team I refer to there is the clinical care team within the individual residential care home.  So that would be the manager of the home, the deputy, often there's a clinical nurse specialist and the registered nurse is in the home, correct.


Thank you.  And you refer to, 'I need to follow through with actions to effect reportable incidents'.  Following through what may or may not be a reportable incident would include things like conducting clinical investigations of the residents?‑‑‑Yes.  So for clarification, a reportable incident is different from what I'm referring to here as the reporting of the indicator.  So reportable incidents, I would refer to in my statement as those that come under the definition of a SIRS, or what was previously (indistinct) and they have different follow through actions to the indicators, which - in relation to - as an example, unplanned weight loss, it might be they have to put them on supplements and monitor that.  So I guess the follow through on this is not necessarily a reportable but certainly something that's been flagged through the indicators that indicating there is some clinical oversight required by the home to follow through on.


Yes.  So the point that you're making is that reportable incidents - perhaps paragraph 48 should have appeared under the next heading then, should it, the SIRS heading?  Or is the point that you're making is that you follow - - -?‑‑‑Yes, maybe it's the reportable incidents that's the indicators that are under MedQuip(?), sorry.


Understood.  No, that's fine.  So in regard to the indicators, if there was a matter that fed into an indicator category, such as an unplanned weight loss, then the clinical care team, which involves the registered nurse or includes the registered nurse might then conduct clinical investigations, in regard to that patient, with a view to understanding why there was that weight loss?‑‑‑That's right.


A plan would be developed to deal with it, I assume?‑‑‑Correct.


That might involve updating the care plan for the resident?‑‑‑Correct.


And the delegation of tasks to deal with the situation to personal care workers?‑‑‑That's right.


Now you say also, in the same paragraph, 'Be able to provide evidence of this', is the 'this' the taking of action to address the indicated event or reportable incident, or is 'this' something else?‑‑‑No, that's the same incident, yes.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


So what is the kind of evidence that needs to be prepared, with a view to documenting the taking of action?‑‑‑So if you use the unplanned weight loss as the example, the evidence would be to say, 'Okay, the care plan's been updated to say this is what we're going to be doing in supplements', and then that would then be discussed with the team to say, 'Okay, we're going to be monitoring this within the next two weeks', so we follow through on those.  So depending on which category it falls under, so pressure injuries, they might go onto psych charts, they might have wound dressing, they might involve a consultant to come in, from Smith & Nephew, our wound specialist, to come in.  So it would basically be individualising the support that's required there.


So in the event that you have, I'll call it an indicated event, like an unplanned weight loss?‑‑‑Sure.


There'll be the process of investigation, there'll be the process of setting down a plan that is to be followed and then a process of documenting the following through of that plan?‑‑‑Correct.


All of these steps involve the creation of documentation by the clinical care team, including the registered nurse?‑‑‑Yes, that's right.  That's right.  Yes, so they involve the clinical care team in the home doing that, with support provided from our centralised compliance team, but the actual actions would be undertaken by the care team, in the home, correct.


And also based on information provided to them by the personal care workers?‑‑‑Correct.


Now, moving on to the SIRS scheme, I assume that Warrigal trains personal care workers and nurses as to the requirement of the SIRS scheme?‑‑‑It's mandatory training.


So part of that training would be designed to ensure that nurses and personal care workers are astute to notice indications of any of the matters that you list at paragraph 52?‑‑‑Correct.


If a set of circumstances attracts their attention they would, presumably, make an initial judgment about whether it raises a concern of a relevant kind?‑‑‑Yes.


And you'd imagine that probably err on the side of caution?‑‑‑I would hope so, yes.


It's the case, isn't it, the Warrigal Incident Management System requires the reporting of near misses as well as actual incidents?‑‑‑That's correct.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


In the event that, for example, the personal care worker who happens upon this set of circumstances forms the view that it may well be reportable, then they take that information to a registered nurse?‑‑‑That's one option.  We also have a incident support officer that works seven days a week that they could call for advice to see whether it needs to be escalated.  In general, they would refer it to the registered nurse, but if the registered nurse is not available because they might be with someone at a particular time when they need to get advice, we do have a centralised person that can give advice and also supports the logging of the reportable incident through the system.


Could you just give me the title of that centralised person again; I missed it?‑‑‑The acronym is ISLO, so it's incident support liaison officer.


Is that person a registered nurse?‑‑‑No.


So what that person is doing, I suppose, is saying to the personal care worker, 'Yes, this is something that is of concern, you should report it to the registered nurse' or not?‑‑‑Essentially, yes, they would more than likely go through what would need to be reported in the portal and go through the questions to try and provide some clarity to the personal care worker to say, 'Has this happened, has this happened?' and then, if they come to the conclusion after going through the questions that it is something that needs to be reported, then it would be escalated to a registered nurse.


Yes, and very often as well, you would imagine, documented in some sort of a progress note?‑‑‑Correct.


The registered nurse would then, assuming that set of circumstances comes to the RN, that person would then conduct an initial investigation of the circumstances that have been brought to attention; is that right?‑‑‑Yes, depending on which one it is, you know, so I guess in terms of conducting an investigation, some of those, an unexpected death, you know, that would involve liaising with the GP, the hospital, et cetera.  Stealing would have to get escalated to the manager of the home.  So, there's different categories in there that would require different escalation points.


Yes.  Let's assume it's, for example, neglect of a consumer?‑‑‑Sure.


That might involve speaking with care workers who were involved in the care of that person?‑‑‑Correct.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


Speaking with the resident himself or herself?‑‑‑Yes.


Performing possibly clinical tests, and then you would imagine - I'm sorry, you agree with that?‑‑‑Yes, sorry, yes, sorry.


That's fine.  Then, in responding to the set of circumstances, one might initiate revised interventions in regard to the consumer?‑‑‑Correct.


Arrange medical officer follow-up, update the care plan as required?‑‑‑Yes, depending on what the neglect was, potentially, yes.


At some point, the registered nurse, having conducted this sort of initial investigation, would himself or herself form a view about whether the incident is a serious reportable incident and document that view?‑‑‑Correct.


After that, I assume it then goes to the centralised reporting team that you have?‑‑‑Well, it would be reported through the centralised person that's been allocated to do that, so, yes.


That person, I assume then, sort of runs the ruler over the information that's been prepared and decides whether it is reportable and, if so, how?‑‑‑Yes.


You say at paragraph 56 that there is an increased number of incidents that need to be documented.  Is that because the scope of SIRS is broader than previous reporting methods?‑‑‑Yes, it is.


In what way?‑‑‑Well, previously, as an example, if a resident with dementia physically hit another resident with dementia, that wouldn't be reported, that would be documented on an internal register, but now that has to be reported as an incident.  The categories for reporting didn't include neglect before, so it was more around abuse, financial abuse.  So, the categories have been broadened as well as the rationale or reasons for reporting within the categories.


To take neglect, we started from the proposition that the personal care workers are required to be astute to the types of things that might be reportable, so now it's the case that they are required to be astute to whether neglect might have occurred, whereas previously that wasn't, at least, a reportable requirement?‑‑‑That's correct.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


Tracking through what we have just done, I gather it's the case that there will be a number of incidents that might trigger the personal care worker's attention, but they quickly decide, no, this isn't reportable?  Is that right?‑‑‑I couldn't say, to be honest.  I'm only dealing with those that are reported.  I couldn't see whether they see things and then decide not to report it.  That's outside of my scope, sorry.


No, that's fine.  Are you aware of whether it's the case that registered nurses are performing those sorts of initial investigations that we spoke about and they might decide that, no, this isn't reportable?‑‑‑That's possible, yes.


When you say at paragraph 59 that there's one report per home per week, that figure wouldn't capture the processes that are gone through that don't result in a report?‑‑‑No, that's correct.


From 60 to 66 of your statement, you speak about some of the demographic changes in aged care and you say, at paragraph 61, that persons in aged care have higher needs and are frailer, and I think that's pretty uncontroversial in this proceeding, but that's the experience at Warrigal?‑‑‑Yes.


When you say 'higher needs', you mean higher needs for clinical care, I assume?‑‑‑Correct.


But also higher needs for what we might call activities of daily living?‑‑‑Yes, I mean I think higher needs across all three of the domains: activities of daily living; behaviours and complex care.


Yes, and an instance or a manifestation of that need for higher care is, as you say in 63, a higher likelihood that two person assists will be required?‑‑‑Correct.


You refer in paragraph 64 to dementia; do you see that?‑‑‑Yes.


You don't expressly say, but I would imagine you'd agree that one of the manifestations of the change in the cohort of people entering aged care is that there's more dementia now than there used to be?‑‑‑Yes.


That's the experience of Warrigal?‑‑‑Yes, it is.


Dementia can lead to challenging behaviours such as wandering?‑‑‑Yes.


And wandering might lead to falls?‑‑‑Correct.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


And all these types of things might lead to a need for further clinical care?‑‑‑Yes.


Dementia might, indeed, also lead to aggression or other problematic behaviours?‑‑‑Yes.


In the light of that, can I just take you back to paragraph 49.  You draw attention here to the fact that one of the impacts of the NAC, et cetera, is that you now have to have a diagnosis and not just a symptom in order to get a chemical restraint?‑‑‑Correct.


I assume that that means that that means that there will be a category of people in facilities that have symptoms but don't have a diagnosis?‑‑‑That's correct.


Therefore there will be fewer residents than was previously the case in respect of whom chemical restraints are in use?‑‑‑That's correct.


That might create an increase in those kinds of difficulties such as wandering, falls, unexpected behaviours that you previously - - -?‑‑‑Yes, that could quite possibly be the case, yes.


Is that something that you have experienced in particular at Warrigal?‑‑‑Well, we certainly have reduced the number of residents that are being restrained chemically.  In terms of the impact with falls, I couldn't say that, but certainly with wandering and aggressive behaviours, that would be the case, but I couldn't categorically say that is the case with falls.


When you say you can't say in regard to falls, that's because you don't have the figures at hand?‑‑‑Correct, that's right.


I think it goes without saying, but just for clarity, behaviours of this kind, wandering, falls, aggression, this all enhances the complexity of the work for the nurses and personal care workers?‑‑‑Yes.


And probably enhances the quantum of work in that if there are more wanderers then there's more people to sort of track down and de-escalate and bring back to a safe situation?‑‑‑Yes, that would be fair.


Mr Smith, could you just give me one moment?‑‑‑Sure.

***        CRAIG JOHN SMITH                                                                                                               XXN MR HARTLEY


Thank you, Mr Smith.  Your Honour, that's the cross-examination for the NMF.


JUSTICE ROSS:  Thank you, Mr Hartley.  Mr Gibian?


MR GIBIAN:  Yes, there were just a small number of matters.

CROSS-EXAMINATION BY MR GIBIAN                                       [11.10 AM]


Firstly, as I understand it, Warrigal - sorry, Mr Smith, you can see and hear me, can you?‑‑‑Yes, I can, thank you.


Sorry, my name is Mark Gibian, I'm appearing for the HSU, just for your information.  Sorry, as I understand it, Warrigal has a Care Quality Compliance Team?‑‑‑That's correct.


DO you have some responsibility with respect to that?‑‑‑So the manager of the Operational Quality and Compliance Team reports directly through to me.


Sorry, can you just repeat the title of the team?  I think I got it slightly wrong?‑‑‑Sorry, so the acronym is OQAC.  So it's Operational Quality and Compliance.


Look, I think Mr Sewell said something about this but how many people work in that team at the moment?‑‑‑So there's the manager, then we have registered nurses that go to different geographical locations, so there's one, two – we've got – we're recruiting at the moment.  So the substantive team there's been one, two, three, four registered nurses, a policy officer, an admin officer.  So four, five, six, seven staff.


I was going to ask you the composition but I think you've just answered that question.  They're mainly registered nurses allocated on a geographical basis with a policy and an admin officer, is that right?‑‑‑Correct, that's right, yes.


From paragraph 34 you refer to living longer, living better, being a reform introduced in 2013.  How was that measure introduced?  Was that a statutory requirement?‑‑‑Yes, yes.


Part of that or a component of living longer, living better, you describe in paragraph 37 as ageing in place?‑‑‑M'mm.

***        CRAIG JOHN SMITH                                                                                                                    XXN MR GIBIAN


You say in the second sentence at paragraph 37 that this meant that a consumer would have more say, that is in where they were, that is where they were to reside?‑‑‑Correct, correct.


That is, the resident could, notwithstanding some change in their condition, choose to stay where they were?‑‑‑That's correct.  So previously if – I mean, in some cases we have to get consent and move somebody because the room that they may be in, for example, may not be able to accommodate a lifter if their needs change, but in general if their needs can be met in their current or in the past we would ask to move them to another home.  As an example, you know, some of our homes don't have dementia specific areas, so if their needs change and they become higher – and their needs with dementia needed a secure area, we would just move them.  But now often the challenge is to try and keep them in their same place with meeting those needs rather than moving to another place if they choose to stay.


Yes, so and by more say, as I understand it, you meant that the resident doesn't have necessarily complete veto if they can't safely be provided with care at the location they are?‑‑‑Correct, correct.


But to the extent possible you retain them in their current locations?‑‑‑Correct.  So there would be a point where if we cannot provide the care to meet those needs, we would have to, you know, get independent medical advice as an example to say that we can't meet those needs but I guess initially we will try everything we can to try and keep them in the same place.


The consequence of that, I take it, within Warrigal and presumably elsewhere as well, is that you're more likely to have residents with a variety of different care needs in the same unit or community?‑‑‑That's correct.


Rather than what was more the case in the past, as I understand it, that the high cares would be concentrated in particular units with different staffing arrangements?‑‑‑That's correct.  So we would have homes where we would have an area that would be classed as the high care section and another section that would be classed as the low care section.  The staffing model would be different in those areas;  the supervision, you know, with the clinical team would be different.  So whereas now in homes, you know, such as one – it might be 150 beds, all those residents in those areas now pretty much have very similar needs as what they would have done in 2013.

***        CRAIG JOHN SMITH                                                                                                                    XXN MR GIBIAN


A consequence of that at least is that I take it you've had to train the care workers or the care workers have to deal with – all the care workers have to deal with and provide care to residents with a range of care needs including right up to the highest level of care needs and dementia patients and the like?‑‑‑Yes, correct.


Then the second thing I just want to ask you about was you say something about the use of restraints and the limitations that have been – the reporting requirements at least involved in the use of restraints arising from the National Aged Care Mandatory Quality Indicator Program?‑‑‑Yes.


Am I right in understanding that the broad intent, as you understand it, of that program so far as restraints is concerned is to ensure that restraints of various natures are only used where it is necessary and justifiable to do so?‑‑‑That's correct, so minimal use of temporary restraints.


Yes, only where absolutely necessary?‑‑‑Yes.


For presumably the safety of the resident or others?‑‑‑Correct.


Arising out, as you would understand it, of a concern whether this happened at Warrigal or not, I don't know, but the restraints were used in the past to manage behaviours which could be managed in other ways?‑‑‑That's correct.


A consequence of that is have you seen a reduction in the use of restraints at Warrigal?‑‑‑Definitely.


And - - -?‑‑‑Sorry, I guess, a reduction in physical and chemical restraints.  So there are two types.  So bedrails, as an example, were considered a restraint so there would be very minimal bedrails in use now, only where absolutely essential and signed off by the GP.  So that type of physical restraint has almost been eliminated.


That does produce – obviously it empowers the residents in certain respects because they're not restrained by the bed rail from getting out of bed on their own but it does produce added challenges to care workers in terms of monitoring residents who may be frail or confused but nonetheless be able to get out of bed themselves?‑‑‑Correct.


The last thing I just wanted to understand and this may be because I don't read graphs very well, you discuss the demographics and changing care needs of residents from paragraph 60 onwards in your statement under the heading, 'The Elderly'?‑‑‑Yes.

***        CRAIG JOHN SMITH                                                                                                                    XXN MR GIBIAN


Including at paragraph 64 you indicate that consumers are also staying for shorter periods and you say that when you entered the industry the length of stay could be up to 10 years and it's now generally less than two years.  Do you see that?‑‑‑Yes.


When you started in the industry or entered the industry, you're referring to 2007 or so, is that - - -?‑‑‑That's correct, yes.


- - - the time period we're talking about?  Then I think, as I understand it that matches statistics but over the page - - -?‑‑‑Yes.


- - - at 64 you say:


The length of stay of consumers remained fairly steady over the last 10 years.


And that Warrigal's turnover of - - -?‑‑‑See, that's my mistake.  It's increased.  There's 30 per cent turnover per year, so that's my error, sorry.


In terms of the length of stay, when it says it's remained fairly steady, I thought you were previously saying it's reduced?‑‑‑So it's reduced because we're getting more come in at the latter stage but we've still got a number that were there previously that have been with us for five to six years, so what I'm saying is that – qualifying is that those that are coming in now are staying shorter but we've still got a number of residents that have been with us for five or six years and ultimately once those residents depart the turnover with those coming in, we'll see a significant change in those figures.


I understand so that is, as you referred to, the age and frailty of residents now entering aged care and entering over the last few years, five to 10 years, has been substantially increased, correct?‑‑‑Yes, correct.


But you still have some residents who entered at an earlier point in time who were at that - - -?‑‑‑Correct.


- - - stage relatively well and with lower care needs?‑‑‑Correct.


Yes, I understand?‑‑‑My apologies.


Thank you, Mr Smith, that's the only additional matters I wish to raise.

***        CRAIG JOHN SMITH                                                                                                                    XXN MR GIBIAN


JUSTICE ROSS:  Thank you.  Mr Ward, re-examination?


MR WARD:  Thank you, your Honour.  Just a couple of questions for Mr Smith if I can.

RE-EXAMINATION BY MR WARD                                                 [11.20 AM]


MR WARD:  You were asked some questions by Mr Hartley about people with dementia and you talked about people wandering and people having falls.  Do you remember that evidence?‑‑‑Yes.


I think later on Mr Gibian asked you a question about people with dementia and you referred to a secure dementia ward, do you remember that?‑‑‑Yes.


I wonder if you could explain what the role of the secure dementia ward is?‑‑‑Sure.  So the secure – not all homes have secure dementia wards;  most do.  So some of the older homes don't have a secure area.  So the secure dementia area is where there is a physical restraint with the doors that the residents cannot leave that particular area.  So the area is a separate section in the home, it can be from anywhere in Warrigal.  Our smallest is probably around 11 beds up to 25 beds.  So the residents in those areas will not be able to leave that area and go to other sections of the home.


You were then asked some questions by Mr Gibian about removal of restraints and you gave an example of removing bedrails from a bed.  Do you remember that?‑‑‑Yes, I do.


If you remove the bedrails from the bed, do you adopt any other strategies in terms of looking after the resident?‑‑‑Yes, often the beds are changed so they're put on a low, low bed so the bed is a lot closer to the ground with a crash mat next to the bed so if the resident does roll off they're only falling, you know, less than the size of a bed mattress onto a mat next to the bed, so rather than having the rails in place, a lot of the residents now have the beds a lot closer to the ground for their safety.


Just two more questions if I can.  You were asked question a few questions by Mr Hartley about recording and SIRS.  Do you remember that?‑‑‑Yes.

***        CRAIG JOHN SMITH                                                                                                                    RXN MR WARD


Can you tell me, who actually makes the decision and actions the SIRS notification?‑‑‑So that's a very good question.  It depends what day it is, to be honest, because the manager in the home who is generally there Monday to Friday, it will be escalated to them and they would often talk to myself.  So there's two different categories.  There's a priority 1 and a priority 2.  Priority 1 needs to be reported within 24 hours and a priority 2 you've got 31 days to report it.  So the priority 1s there's a degree of urgency, so that would be escalated to the manager or the registered nurse who's in charge of the home at the time.  And if it's things like abuse then clearly there's investigations that need to be done, staff may be involved in that and need to be stood down while the investigation happens.  So those things would be escalated to myself but in terms of the actual reporting of the incident that's done by the central incident reporting officer after it's been referred to them by the registered nurse or manager in charge.


Thank you and just, lastly, you were asked again by Mr Hartley about incident reporting and you talked about incident reporting and you also talked about near miss reporting.  Do you remember that?‑‑‑Yes.


Did you do incident reporting and near miss reporting before SIRS?‑‑‑We did.  So we still recorded near misses but not to the same extent that we would now, particularly with the residents in the dementia area, so that's probably a higher focus but, yes, in terms of our internal reporting that was always something we looked at.  So there were separate registers that we kept, so prior to SIRS they were kept in a discretion not to report register, so we would review those, yes.


Who in the organisation would be reviewing those?‑‑‑The compliance team and myself.


No further questions in re-examination.  Might Mr Smith be excused?


JUSTICE ROSS:  Yes, thank you for your evidence, Mr Smith, you're excused?‑‑‑Thank you very much.

<THE WITNESS WITHDREW                                                          [11.24 AM]


JUSTICE ROSS:  The next witness is Ms Brown.


THE ASSOCIATE:  Ms Brown, can you see and hear me?


MS BROWN:  I can, yes.  Can you hear me?


THE ASSOCIATE:  Yes, thank you.  Can you please say your full name and work address?

***        CRAIG JOHN SMITH                                                                                                                    RXN MR WARD


MS BROWN:  Yes, Emma Brown from 2 Kline Street, Albion Park Rail.


THE ASSOCIATE:  Thank you.

<EMMA BROWN, AFFIRMED                                                          [11.25 AM]

EXAMINATION-IN-CHIEF BY MR WARD                                    [11.25 AM]




MR WARD:  Thank you, your Honour.


Ms Brown, it's Nigel Ward.  We haven't met.  I think you've met Ms Lombardelli who's sitting next to me.  I wonder if you could state your full name and address again for the record?‑‑‑Yes, Emma Brown from 2 Kline Street, Albion Park Rail.


Thank you and you've prepared a statement for these proceedings of 83 paragraphs dated 2 March 2022?‑‑‑That's correct.


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


Have you read that statement?‑‑‑Yes, I have.


Is it true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.


Thank you.  For the Commission's benefit, Ms Brown's statement appears at tab 252 and in the digital court book it can be found at 12,619 to 12,634.  There are 12 annexures to be found in the digital court book at 12,635 to 12,758 and we rely on that statement.  Ms Brown is available for cross-examination.  Ms Brown, one of the barristers for the union is going to ask you some questions?‑‑‑Thank you.

CROSS-EXAMINATION BY MR MCKENNA                                [11.27 AM]


MR McKENNA:  Ms Brown, my name is Jim McKenna, I'm the barrister appearing on behalf of the ANMF.  Do you have a copy of your witness statement in front of you?‑‑‑I do, yes.

***        EMMA BROWN                                                                                                                                XN MR WARD

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


Can I start by asking some questions about care plans.  I understand from your evidence that you say a care plan is a regulatory requirement?‑‑‑Yes.


At Warrigal it's essential in the way that care is delivered to residents within the facilities?‑‑‑Yes.


Do care plans also have a significant role in home care as well?‑‑‑It does but that's not my expertise.  I only within Warrigal work with the residential side of the organisation.


Thank you, I'll bear that in mind.  Then in terms of a development of a care plan in residential care you refer to initial care plan upon the approval of a consumer.  In some occasions might that be shortly before the resident becomes admitted?‑‑‑The electronic documentation system does give the ability for us to enter data prior to someone entering the care home and it stores it there so once a resident walks through the doors on the first day that becomes active for information to be there present for staff to say.  On that first day, though, the resident is assessed and the initial assessment and care plan is a document within the electronic system which is completed within that first 24 hours to direct the care for the rest of the care team.


I presume that on some occasions the admission of a new resident occurs in an orderly way where there is an opportunity to meet and have discussions before that admission?‑‑‑Yes, that's correct.  Yes, sometimes it can happen that way.


Sometimes it might occur in somewhat of a crisis situation where someone is being admitted directly from hospital, being too ill to return home?‑‑‑Yes, that's right.


I understand that the quality of the information that you get handed over from a hospital can vary?‑‑‑It can vary, yes, that's correct.


In terms of the development of a more comprehensive plan, it's a registered nurse who is ultimately responsible for that plan?‑‑‑Yes, that's correct.


The care plan that's developed will identify all the health conditions of the resident and their care needs?‑‑‑Yes, that's correct.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


The plan will set out how health conditions are to be managed and how those needs are to be met?‑‑‑Yes, in conjunction with the choices and preferences of the resident themselves.


Yes and at Warrigal I understand you say that those care plans are reviewed every three months by the registered nurse?‑‑‑At a minimum.  If there was changes to a resident's condition or their choices and preferences there's certainly - the expectation would be that we would update it within the three months.


And those updates might come from, as you say, changed preferences from the resident themselves?‑‑‑Yes, that's correct.  Yes.


They might also come from observations made by care staff?‑‑‑Observations made by care staff that's escalated to the registered nurse to do further assessment which then, yes, would ultimately change the care plan.


I understand that you would have an expectation care workers, AINs, PCWs would be closely observing residents and then reporting through to the registered nurse anything that might affect the contents of a care plan?‑‑‑Yes, that's right.  The care staff know their residents very well, so they can see if there is a change, and that change is then verbally passed on to the registered nurses, and so then they can do further assessment.


The care staff themselves would be actively using the care plan to deliver the care to residents on a daily basis?‑‑‑Yes, that's correct.  That's their reference point.


And returning to what we were discussing earlier, if there are things - well, I'll withdraw that.  The care worker will need to make decisions about what does and does not need to be escalated to the registered nurse?‑‑‑The care staff are - they would identify when there is a change or if they read a resident's care plan and they thought that that wasn't actually the case, and then they would escalate that to the registered nurse to have further discussion.


I understand from your evidence you say that the care worker operates within established guidelines as to what to document and what to escalate to the registered nurse?‑‑‑That's right.  Warrigal has a suite of policies and procedures that covers all different variety of things in relation to care, so once again that's also a reference point in the guidance for all staff.


One of those policy documents, I understand, is that which you exhibit at EB10:


The care staff companion to inform RN on duty, on-call, if any of those symptoms are identified'.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


Do you have that?‑‑‑Yes.


It's EB10.  You've already - that's very quick?‑‑‑Yes, I've got it all laid out beside me.


Terrific?‑‑‑Yes, thanks.


So this is something that you would expect a care worker to be using to determine when it's appropriate to escalate a matter?‑‑‑That's right.  It's the stop and watch tool that's widely used.  And it is just to give direction to the care staff that they don't always need to understand exactly what is happening to that resident, but it demonstrates that if they see any of those then that is the time to escalate to the registered nurse, so then the clinical staff can do further review and investigation.


So, this is an example of the established guidelines that you identified in your evidence?‑‑‑Yes, that's correct.


In turning to it, so stop and watch, being an acronym 'S', so 'symptom seems different than usual self', so you would expect a care worker to, firstly have knowledge of the resident to set a baseline?‑‑‑Yes, that's right, or if they're new, reference to the care plan, or if they're working with someone that knows the resident better, well, then obviously the new staff member would also talk to their colleagues.


So, to determine whether they seem different to their usual self they'd have that baseline and they would make an assessment based upon their interactions with the resident?‑‑‑That's right.  It could be as simple as a care staff member going in and usually Mary is awake at 8 o'clock in the morning, but Mary's actually asleep, so it's something as simple as that.  It's just not their usual self.


It's not an objective measure though, is it; you'd accept that?‑‑‑What do you mean by that?


Well, it's not like - we've heard some other evidence in this proceeding about blood pressure and traffic light signals, and that sort of thing.  It's not, here is a range, if you're outside the range, you must escalate?‑‑‑No.  Yes.  Yes.  No, it's not that, it's just coming in, the person doesn't seem their usual self, and they escalate it.  It may be nothing, but it may be something, and they rely on the clinical team to do further review on that.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


In your role you're relying upon the skills of observations of the AINs to identify that in the first place?‑‑‑Yes, I'm relying on them as being part of the team to, yes, report up anything that's unusual.


You're relying on their skills to make that assessment about whether it's something that warrants referral?‑‑‑Yes.


Could I ask you to turn to paragraph 16 of your statement?‑‑‑Yes.


And you there set out the five types of restrictive practices?‑‑‑Hang on, I won't be a minute.  What page was that, sorry?


Sorry, page 4 of your statement?‑‑‑I went too far.  Yes, I've got it in front of me, thanks.


As I understand your evidence, as a result of the quality of care principles being updated, there are changes to the requirements with respect to the use of restrictive practices?‑‑‑Yes, that's correct.  Yes.


You identify the five types of restrictive practices.  Can we start first with chemical restraint?‑‑‑Yes.


As I understand chemical restraint is the use of psychotropic medications for example?‑‑‑That's correct, yes.


And I also understand that even before these recent changes there's been a significant reduction of the use of psychotropic medications, and particularly following the initial report of the Royal Commission?‑‑‑Yes, that's always our intention to decrease.  Yes.


Previously, and still now, psychotropic medications are used in the management of anti-social and dangerous behaviours by residents?‑‑‑It's only one of our interventions.  Yes, we can use it, but it's certainly only one of the things that we use.


I understand that there has been a reduction in that use; you'd agree ‑ ‑ ‑?‑‑‑Yes, certainly.  Yes, we would always use chemical restraint or any restrictive practice as the very last resort.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


But, as I understand it, that there has been a change.  So, previously when you might have used a chemical restraint you're ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑now not?‑‑‑Yes, that's correct.  Yes.


And in those circumstances, other measures will need to be taken to manage those same underlying anti-social or dangerous behaviours?‑‑‑Yes, things such as diversional therapy and - yes.


And to take diversional therapy as an example, that's going to require a care worker to apply certain skills to de-escalate situations?‑‑‑Yes, and which is also documented in - it would be in residents' behaviour support plan to give that direction as well.


Then turning to environmental restraints ‑ ‑ ‑?‑‑‑Yes.


‑ ‑ ‑can you provide me an example of an environmental restraint?‑‑‑It would be our residents and customers that live in our secure areas, so, some people call them the dementia support units, memory support units.


So, essentially the locked doors?‑‑‑Yes, that's correct.  Yes.


And have there been changes to that following the 2021 changes to the quality of care principles?‑‑‑I'm (indistinct) to minimise the use of those support areas, so we allow people to move freely within the building.  Within the homes that I work in and support, we certainly still have those secure areas for the safety of some of those residents.


I presume if further changes were introduced there, if there was a departure from the use of secure memory support units ‑ ‑ ‑


MR WARD:  Well, I object to the question.  He's asking the witness to answer a hypothetical question.


MR McKENNA:  Well, I think it's a hypothetical question that the witness is well positioned to answer.


MR WARD:  I press the objection.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


JUSTICE ROSS:  Do you want to re-put the question, Mr McKenna?


MR McKENNA:  Yes, your Honour.


Ms Brown, you would accept that if memory support units do not have a locked door there is a risk of residents leaving that area?‑‑‑I think if - and I think we have to look at that then there would have to be further discussions on other interventions that would be put in place to keep people safe.


So, there would need to be - well, can you give an example of what a further intervention might look like?‑‑‑There's certainly other inventions, such as GPS tracking.  I guess I haven't had to - I don't really want to comment any further because I haven't had to look into that scenario as yet.


Then in terms of mechanical restraints, we have heard some discussions in evidence about bed rails being a pretty classic mechanical restraint?‑‑‑Yes, that's correct.


Has there been a reduction of the use of bed rails at Warrigal?‑‑‑Yes, there certainly is across all our homes a reduction in the use of bed rails.  We still have some residents that choose to have bed rails, which we would then have in depth discussions so they understand the risk in the use of those.


When you say 'the risk in the use of the bed rail', do you mean the risk - I'm sorry, can you explain what you mean by that?‑‑‑Yes, certainly.  Well, there's always a risk when we place something on the side of a bed that can cause injury to a resident, so the person using those bed rails needs to understand that there can be times when they could end up with skin tears and things like that if they bump their legs on the bed rails.


Yes, of course, but you would also accept that the use of bed rails can prevent fall injuries and so on?‑‑‑We have other interventions that we can use for a risk of falling.  I guess we need to do an assessment of why someone's rolling out of bed.  The person may be in pain, they may be uncomfortable.  We also use other things such as low beds with floor mats beside them so the person, if they did happen to roll out of bed, then they fall onto a crash mat, which isn't very far away, not much for the person to drop.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


You mentioned performing an assessment of why a resident might be rolling out of bed.  I presume that that would be undertaken by a registered nurse, perhaps supported by other care workers?‑‑‑Yes, certainly a registered nurse would be ultimately doing that assessment.


We probably don't need to go into them, but you also refer to physical restraints, that essentially being touching, pushing, pulling residents?‑‑‑Yes, that's right, yes, holding people intentionally down.


And then seclusion, essentially isolating a resident in their room?‑‑‑That's right.


As a consequence of the changes with respect to restrictive practices, you identify that more documentation and assessments are now required by a registered nurse?‑‑‑That's correct.


Do you accept that there are other steps, particularly having regard to the reduction of chemical restraints, additional resources and skills are required to fill that - - -?‑‑‑Yes, yes, an understanding of behaviour management strategies.


In your evidence, you also address changes to the Aged Care Quality Standards?‑‑‑Yes.


This is something that you refer to, I think, a 'roadshow' of training?‑‑‑Yes, that's right.


That's something that you undertook?‑‑‑Yes, that's correct, yes, went around to all the sites and spoke to the care staff on the floor.


In doing that, you explained the changes to them?‑‑‑That's right.  It was an opportunity for us to have a discussion of the standards and how it applies to our everyday practice.


I presume you went the next step and said, 'And here are some of the ways that you can change your work practices to help meet the standards'?‑‑‑That's correct, yes, and it - yes.


Arising out of that, you also discuss 'Dignity of Risk' at paragraph 27 of your statement?‑‑‑Yes.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


Forgive me for being a lawyer, but you use there a capital D and a capital R.  Is it the case that Dignity of Risk is a particular sort of defined concept in your area of work?‑‑‑Yes, that's right.


Can I offer this to you as a definition.  Is it referring to the concept of affording a person the right or dignity to take reasonable risks?‑‑‑Yes, that's correct.


You give an example of a resident who might choose thin fluids, which a staff member would then provide as required?‑‑‑Yes, that's right.


As I understand, the risk there is that the resident may choke and aspirate on some of the fluid?  That's essentially the risk; yes?‑‑‑Yes, that's correct, yes.


That then could lead to something like pneumonia?‑‑‑Yes.


And the deterioration of the resident's condition?‑‑‑Yes, that's correct.


It is something that could ultimately lead to the death of that resident?‑‑‑Yes.


Risks like that would need to be identified in care plans and signed off by a registered nurse?‑‑‑That's correct.


In signing off on that, a registered nurse would need to make an assessment about whether the risk is in fact reasonable?‑‑‑Yes.  It wouldn't just be the registered nurse involved in that assessment.  We would certainly have, in this particular case, a speech pathologist, who would be doing the assessment with their recommendations and having an in-depth conversation with the resident themselves on the consequences of going against that medical advice.  Also the medical officer of that resident would also be informed.


Can I take it that, as a custodian of the care plan, it's going to be the registered nurse at the end of the day on whose shoulder the decision rests?‑‑‑No, I wouldn't say that because there's a consultation.  Ultimately the registered nurse oversees the care plan which is directing the care, but the dignity of risk, we have a form itself that sits separate and we would reference to and on that form, we have signatures of the resident as well.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


I'm sorry, you're not suggesting there's anyone else in the facility, aside from the registered nurse, who is ultimately responsible for making that decision?‑‑‑It is not the registered nurse ultimately making that decision that that person can take a risk.  Is that what you mean, sorry?


As I understand it, the whole concept of dignity of risk is where a resident wants to take a risk?‑‑‑Yes.


And the process to give effect to that will be approved where an assessment is made that it is reasonable?‑‑‑Yes.


What I'm putting to you is that, at the end of the day, it's the registered nurse who will have to determine whether or not that risk is reasonable?‑‑‑Yes, I think my personal opinion on dignity of risk is a tricky one and, yes, if it's sits in the care plan, ultimately overseen by the registered nurse.


So, if it makes its way into the care plan - - -?‑‑‑Yes.


- - - it will have been signed off on by the registered nurse?‑‑‑That's correct, yes.


You say it's tricky.  I presume it becomes even trickier when families might have a different view to the resident about whether the risk is reasonable?‑‑‑That's correct, but when we're talking about families, we need to make sure that we have not just any family member, so obviously we speak with family members, but to make informed decisions on behalf of their loved ones, well then they need to have the right power to do so.


In your experience, have you come across families being involved in these discussions?‑‑‑Yes, to support their loved ones, yes.


Sometimes, perhaps, presenting a different view to their loved ones?‑‑‑Yes, that is correct.


To return to your example, if - no, I withdraw that.  I understand that once a process like this, that is the use of thin fluids despite a speech pathologist recommending thickened fluids, something like that, if a care worker or an AIN is administering the thin fluids, it would be open to them to raise with the registered nurse whether, in their opinion, they thought that the risk was reasonable?‑‑‑That's right.  If they were concerned, they certainly at any time would definitely consult with the registered nurse on duty.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


And you would absolutely expect them to do that?‑‑‑If they were concerned with anything, yes.


In your statement at paragraph 44, you deal with what you identify as being some of the changes that you have seen over the last 10 years, a shifting profile of consumers accessing care.  Do you have that?‑‑‑Yes, I do.


I won't take you through all that.  I did just want to ask you about (d), what you've identified as an increase in consumers who need palliative care?‑‑‑Yes.


Does that arise in part from residents having what you refer to there as shorter stays?‑‑‑Yes, that's right.  People are staying at home longer so coming in - and being supported by their family and friends at home, and coming in at a later stage in life.


Is it also the case that – I withdraw that.  Have you observed an increase in the number of residents who, through their advanced care plan have specified they wish to receive that palliative care within the facility?‑‑‑That's correct, yes.


I understand from your evidence that Warrigal engages the service of external palliative care providers?‑‑‑Yes in the majority of their homes;  not all but, yes, the majority of our homes.


I presume that that's a decision that's been made at a high level?‑‑‑That's correct.


That's because palliative care involves specialised skill?‑‑‑Yes.


It is intense and demanding work?‑‑‑The assessment, yes.


Both the assessment and, I'd suggest to you, the delivery of the care?‑‑‑Yes.


As I understand, what the external palliative care provider does is perform that initial assessment and put in place a care program for the palliative care, is that right?‑‑‑Yes, that's right.  They come in and work alongside our registered nurses and management teams to assess the resident.  They can also help facilitate case conferencing with the resident and their loved ones as well, and then make recommendations to the medical officers of the residents.


Am I correct in that that is essentially the assessment stage?‑‑‑Yes, that's correct.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


Then it falls to the facility's regular staff to deliver that care?‑‑‑Yes, that's correct.


You say with respect to personal care workers, AINs, they don't make clinical decisions with respect to palliative care.  I take it that they are heavily involved in the delivery of palliative care?‑‑‑Yes, definitely.  They care for the people that are palliating with their personal care needs.


At a practical day-to-day level they are making decisions about how to make those residents more comfortable?‑‑‑In conjunction with the registered nurses, yes, they help turning them and attending to personal care whilst those people are palliating.


As a natural consequence of there being more residents in palliative care, you'd accept that that type of work has and is increasing for care workers?‑‑‑As an overall, yes.  It can vary as you could understand, at any given time within our homes.


You address in your evidence from paragraph 51 and following, mechanical aids.  Do you have that?‑‑‑Yes, I do, yes.


Is it correct that most mechanical aids will require two staff to operate them?‑‑‑Yes, that's correct.


You would accept that for rostering reasons or because staff are tied up doing other things, it's not always the case that two staff members will be available to operate a mechanical aid?‑‑‑It may mean that they have to rely on staff in other areas of the home to come and assist them.


Do you provide training for staff in other areas of the home in using mechanical aids?‑‑‑Yes, all staff across a home would, yes, have the same training in manual handling.


I presume that from time to time some of the mechanical aids can break and be out of commission?‑‑‑Yes, that's correct.


You say at 52(b) that staff do not undertake work that requires the use of a mechanical aid without one.  Should I understand your evidence to be that staff are directed not to undertake work that requires the use of a mechanical aid without one?‑‑‑Yes, that's correct.  That would be in the training as well as backed up with our policies.  So there - - -

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


The - - -?‑‑‑Sorry, sorry.


No, no, after you?‑‑‑There would certainly be more than one of the mechanical aids so if one had broken in a certain area of the home, well, then staff could certainly use another one from another area.


But in terms of your statement about staff not undertaking that work without a mechanical aid, I presume that that's not something that you directly observe?‑‑‑I don't observe staff, no, doing manual handling without the correct equipment.


No, I mean – well, I think from your evidence, you're in a facility about once a month, is that right?‑‑‑Yes and it can be more frequent sometimes.


Yes.  I presume you can't say to this commission that you can categorically say that this doesn't occur?‑‑‑No, no.


If a staff member found themselves in a situation, for example, with a resident who needed toileting but there either was a mechanical aid available or there was not another staff member to assist them, they would be faced with a – well, that staff member would need to make a decision about whether they deferred the toileting or perhaps went ahead and assisted the resident with their toileting regime either without the aid or using it by themselves?‑‑‑I would expect the care staff member to escalate that situation because it would be against a resident's desire to go to the toilet, number one, and secondly it would be not having the ability to follow the care plan.  So in any circumstance like that it would be for the care staff member to escalate that up the chain to the registered nurse, so then they would have assistance.  But even as a registered nurse I certainly wouldn't be – there's always other options for someone to go to the toilet.  It may not be ideal but certainly safer and we can assist people within someone's own bed to go to the toilet.


You give evidence about medication, and you refer to the fact that you're the chair of the medication advisory committee at Warrigal.  That's correct?‑‑‑Yes, that's correct.


I presume that through that role you would have a little awareness of changes in medication levels within Warrigal?‑‑‑To a certain degree.


As a general proposition is it the case that there are more residents on more medications now?‑‑‑I don't – I can't answer that, I'm sorry.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


You accept that the involvement in administering or distributing medication involves significant responsibilities be it Schedule 4 or Schedule 8 drugs?‑‑‑Yes.


You give evidence of a process at Warrigal which you describe as being standard across the industry.  You've earlier said that your expertise is within residential, not home care but is it the case that you understand that it's the same process followed in home care?‑‑‑No, I can't comment to home care.


Within the medication management procedure and it's at EB11 - - -?‑‑‑Yes.


- - - is this a policy that would be used by, for example, medication-competent AINs or care workers?‑‑‑Yes, that's correct.


The policy statement there at the top of the page identifies that:


The medication management system in place together with appropriate staff training is designed to ensure –


and it then sets out I think eight rights there?‑‑‑Yes.


The procedure itself does not pick up those eight rights, though, does it, expressly?‑‑‑I would have to read the procedure and cross-reference it to correctly answer that.


Sure, by all means, if you'd like?‑‑‑Yes, you're right, it doesn't repeat those words.


Is it the case that an enrolled nurse or a registered nurse would apply those aged rights in a more direct manner?‑‑‑Yes, that's correct.


It is, of course, essential that all residents receive the right drugs at the right time in accordance with the aged rights?‑‑‑Yes.


I understand that there are significant consequences for residents if medication errors are made?‑‑‑There can be, yes.


Could indeed be fatal?‑‑‑Yes, worst case scenario.  Yes.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


There are, and would be, consequences for registered nurses and enrolled nurses for medication errors?‑‑‑Yes, that's correct.


And that could involve investigation by AHPRA?‑‑‑Yes, that's correct.


Although care workers, AINS, PCWs aren't subject to professional registration you'd accept that there would be significant consequences for them if they made medication errors as well?‑‑‑Yes, that's correct, internally we'd certainly do an investigation and, yes, follow through on that.


This tribunal has heard some evidence from care workers describing their emotional distress at making medication errors.  Is that something you've come across?‑‑‑Yes, certainly across all levels of staff.


At paragraph 80 of your statement, again, you identify observations that you've made over the past 10 years since your commencement at Warrigal, and this is with respect to the engagement with family responsible persons?‑‑‑Yes.


I take it from this that you have directly observed increases in the level of engagement from family or consumers in relation to residents at Warrigal?‑‑‑Yes, that's correct.


You say an increase in the questions being asked.  Is, that, what, both number of questions and complexity of questions?‑‑‑Yes, both.  Yes.


You refer there to the introduction of open disclosure requirements, discussing with people receiving care, their family, when something goes wrong?‑‑‑Yes.


The tribunal's also heard some evidence about families being more connected with discussions in the facilities.  Perhaps by use of FaceTime a family member might request to be involved in particular discussions.  Is that something you've observed?‑‑‑Yes, certainly over the last couple of years during COVID times we've all gotten more used to and utilising things like FaceTime.


Is it the case that family members, responsible persons can at times become quite frustrated with the facility?‑‑‑Yes.


Sometimes that frustration can manifest in abuse towards staff members?‑‑‑It can, yes.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


Paragraph 78, you there set out what you identify as three separate circumstances when the family of a consumer may come into contact with staff at Warrigal.  Do you have that?‑‑‑Yes, I do.


You draw a distinction in subparagraphs (b) and (c) between incidental engagement and formal engagement; that's right?‑‑‑Yes, that's right.


And with respect to incidental engagements, you identify staff members giving updates within their scope of practice?‑‑‑That's correct.


I presume it would be quite common for family members to speak directly with personal care workers about what's happening with their loved one?‑‑‑Yes, that's right.


I anticipate that the person within the facility, who the family would come into contact with most, might well be that personal care worker, assistant in nursing?‑‑‑Yes.


And indeed the resident themselves in discussions with the family might mention that care worker more than any other person within the facility?‑‑‑Yes.


So, family members may indeed deliberately seek out a care worker to ask questions about the wellbeing of their family member?‑‑‑Yes, that's right.


I presume you would accept that family members neither understand nor respect the scope of work that may apply from one worker to the next?‑‑‑No, I think family members certainly build up a rapport with the care workers that on what I have witnessed and conversations I've had with family they certainly have an understanding of the different levels of staff.


Some do, some don't?‑‑‑Yes.


At the beginning of your statement, at paragraph 5, you identify previous experience that you have in acute healthcare in Australia and the community in aged care industry in the United Kingdom.  Do you see that?‑‑‑Yes, I do.


Do you include that because you see it as being relevant for the benefit of your evidence?‑‑‑I see it's relevant of who I am and my experience.

***        EMMA BROWN                                                                                                                       XXN MR MCKENNA


Who you are, and your experience with respect to working in aged care as well?‑‑‑Yes, certainly.  Yes.


So, is it the case that your work in the acute healthcare in Australia has provided you skills that you utilise working in aged care?‑‑‑Not so much - I guess that was when I first finished uni, so it cemented all my learnings through my Bachelor of Nursing, and then I had more experience over in the UK in the aged care industry, and which now I still draw on that experience.


You draw on that experience obviously in your day-to-day work now in aged care?‑‑‑Yes, that's correct.


Thank you, your Honour, no further cross-examination for the ANMF.


JUSTICE ROSS:  Thank you.  Mr Gibian.


MR GIBIAN:  I have no further cross-examination for this witness.


JUSTICE ROSS:  Thank you.  Mr Ward, re-examination?

RE-EXAMINATION BY MR WARD                                                 [12.08 PM]


MR WARD:  Thank you, your Honour, just if I can a couple of questions.


Ms Brown, earlier you gave some evidence about residents palliating, do you remember that?‑‑‑Yes.


Could you explain what work activities a care worker might do when that's occurring?‑‑‑Yes, certainly.  They would be attending to the personal care of washing, drying, doing continence care, mouth care, and supporting the resident whilst they're palliating, generally in bed or in some type of comfortable chair.


I think earlier on in Mr McKenna's questions you talked about a road show.  Do you remember talking about your road show?‑‑‑Yes.


He asked you a question about whether or not, as a consequence of the change in the aged care standards, people had to change their work practices to meet the standards, and you said 'Yes'.  Do you recall that?‑‑‑Yes.

***        EMMA BROWN                                                                                                                             RXN MR WARD


I wonder if you could give me some examples of what you meant by change in the work practices?‑‑‑Yes, certainly.  With the aged care standards it's very focused on the residents and their choices and preferences, so it - just all of us going from task orientated, I guess, day-to-day activities to understanding what the choices and preferences are of our residents and our customers within our home, and therefore that does have an impact on how we do our day-to-day work.


Could you give an example of what a choice might be that might impact work?‑‑‑Yes, certainly.  The choice - and I put it in my statement, something as simple as when people choose to have their showers and their morning routine may be different to when we were very task orientated and literally start in room 1 and move our way around an area of the home.


And just lastly, you were asked some questions about dignity and risk.  Do you recall those discussions?‑‑‑Yes.


I think there was an example given about somebody electing to have fluids thinner than the speech pathologist might recommend.  Do you remember that evidence?‑‑‑Yes.


I think Mr McKenna put to you that the person care worker might raise a concern with that risk with the RN.  Do you recall that?‑‑‑Yes.


What is it that the personal care worker would actually be observing in that circumstance?‑‑‑They may see that resident have a drink of the thin fluids and start coughing, which is something which isn't usual when people do have a drink, and so ultimately they would be concerned that there was something wrong and escalate that to the registered nurse for further discussion.


Thank you, Ms Brown.  No further re-examination, your Honour, might the witness be excused?


JUSTICE ROSS:  Yes, thank you for your evidence, Ms Brown, you are excused?‑‑‑Thanks very much.

<THE WITNESS WITHDREW                                                           [12.11 PM]


JUSTICE ROSS:  I think the next witness is Ms Cudmore?

***        EMMA BROWN                                                                                                                             RXN MR WARD


MR WARD:  Your Honour, I think she was on, but she jumped off.  I thinks she's coming back on now.  Your Honour, we have asked her to come back on.  She might just be a moment.


JUSTICE ROSS:  That's fine.


MR WARD:  Ms Cudmore, could you put your screen on.


MS CUDMORE:  Good afternoon.


THE ASSOCIATE:  Ms Cudmore, can you see and hear me?


MS CUDMORE:  Yes, thank you.


THE ASSOCIATE:  Great, thank you.  Can you please say your full name and work address.


MS CUDMORE:  Susan Cudmore is my full name, 2/59 Buckingham Street, Surry Hills.

<SUSAN CUDMORE, AFFIRMED                                                     [12.15 PM]

EXAMINATION-IN-CHIEF BY MR WARD                                    [12.15 PM]


Ms Cudmore, could you restate your full name and address for the record, please?‑‑‑Susan Cudmore, Unit 2/59 Buckingham Street - this is the work address or would you like my residential address?


I don't mind, Ms Cudmore?‑‑‑I can give you my home address if you'd like.


Home address will be fine?‑‑‑(Address supplied.)


You have made a statement for these proceedings of some 50 paragraphs dated 4 March 2022?‑‑‑That's correct.


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

***        SUSAN CUDMORE                                                                                                                         XN MR WARD


Have you read that statement?‑‑‑I have.


Is it true and correct to the best of your knowledge and belief?‑‑‑It is.


If the Commission pleases, Ms Cudmore's statement appears at tab 257 and in the digital court book, it can be found at 12705 to 13712.  There are five annexures to Ms Cudmore's statement and they can be located in the defendant's court book at 13713 to 13831, and we rely upon that statement.  Ms Cudmore is available for cross-examination.


Ms Cudmore, one or more of the barristers from the unions is going to ask you some questions.


JUSTICE ROSS:  Thank you.  Mr McKenna?


MR McKENNA:  Yes, thank you, your Honour.

CROSS-EXAMINATION BY MR MCKENNA                                 [12.17 PM]


Ms Cudmore, my name's Jim McKenna, I'm a barrister representing the interest of the ANMF in this matter.  You have a copy of your witness statement before you?‑‑‑I do.


You hold the role as the COO of the Health Solutions Group; is that correct?‑‑‑Correct.


As I understand your evidence, within the Health Solutions Group, there are a number of other either corporate entities or businesses that are operated; that's right?‑‑‑Yes.  The parent company is Recruitment Solutions, or the bigger company is Recruitment Solutions.  Health Solutions Group has the mandate across our nursing recruitment business and our community care business.


At paragraph 9, you identify Health Solutions operating a number of labour hire agencies?‑‑‑Yes.


You have set out a number there, including Alliance Nursing?‑‑‑Yes.


Then you go on to separately identify Alliance Community; is that right?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


Were Alliance Nursing and Alliance Community previously the one business or the one entity?‑‑‑Alliance Nursing and Alliance Community, the business has - Alliance Health Services Group Pty Ltd was the previous business that had Alliance Nursing Agency and Alliance Community.  Since then, since that business was acquired, we have since then - the bigger parent business has also got Alliance Community across its other divisions, other states.  So, Alliance Community, that brand, it's across five states across two ABNs.


Alliance Community sits across two ABNs?‑‑‑Correct.


Just to go back a step, what is now Alliance Nursing and Alliance Community was an entity that you started back in 2002; that's right?‑‑‑Correct.


That was acquired by the Health Solutions Group in 2015?‑‑‑Correct.


The branch out into community nursing and disability services happened shortly after you started it back in 2004?‑‑‑Yes, yes.


At some point, it was also trading as Alliance Home Care Services?‑‑‑Yes.


Is that a business name that's still used?‑‑‑No.


Has the Alliance Home Care Services business essentially morphed into Alliance Community?  Is that what's happened?‑‑‑Correct.


Okay?‑‑‑Yes, we've done some rebranding and homogenisation of the brand.


It is Alliance Community that provides the community care and disability support services that you refer to in 12(a), that's right?‑‑‑Correct.


And is 12(b) then a reference to Alliance Nursing?‑‑‑Correct.


At paragraph 28 you identify the work performed by Alliance Community employees; you see that?‑‑‑Yes.


And at (a) you identify 'assisting the elderly with daily living tasks, such as bathing, dressing and at meal times'?‑‑‑Correct, yes.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


Is it the case that Alliance Community also provides assistance to the elderly with what some people might describe as more clinical or high care tasks as well?‑‑‑Yes, we do.  It's not the majority of the work, but we do have – we have some home care packages and they require some clinical intervention, so that would be a registered nurse supervising or delivering that program.


So you're there referring to things like continence care?‑‑‑Correct, yes.


Skin management, feeding, bowel care, bladder care and enteral nutrition?‑‑‑Yes, that is part of that remit; small, but we do do that.


Do you say that's delivered by registered nurses or care workers?‑‑‑No, registered nurse, we have – like, we call the registered nurses are clinical care coordinators, and they would set up – they would do the assessment, they would write the care plan.  Depending on what the need is, they would either delegate, do delegation of duties to a care worker if it's non‑complex.  If it's complex, they would do it themselves.  So it's very much on an individualised case‑by‑case basis, based on a clinical assessment.


So if they're delegating one of those tasks to a care worker, they would retain some supervision of that?‑‑‑Yes.  So they would supervise that, and they would be responsible – or they are responsible for the training and the review process.


At paragraph 13 you identify health solutions as employing around 5800 nurses?‑‑‑Yes.


So that I take it includes employees of Alliance Nursing?‑‑‑Yes.


Does that also include Alliance Community?‑‑‑Yes – no, actually.  If you look at paragraph 16, I've called out those specifically.  Alliance Community, it's the 450 employees, so the majority of the – the 5800 relate to our labour hire offering nationally, and then the, you know, 450, probably 500, are our community business.


They sit outside the 5800, do they?‑‑‑Correct.


So the industrial arrangements for those 5800 nurses who are labour hire agency nurses, they're all paid in accordance with the Nurses Award?‑‑‑Correct.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


But the industrial arrangements for – you say the heading above, '16 Alliance', but that's Alliance Community?‑‑‑Correct.


So for Alliance Community staff there are around 450 employees and Alliance Community operates under two industrial instruments, the SCHADS Award, and you refer to the Alliance Home Care Services Enterprise Agreement?‑‑‑Correct.


And the Alliance Home Care Services Enterprise Agreement is an agreement that was reached in 2009?‑‑‑That's right.


And it hasn't subsequently been replaced?‑‑‑No.


The classification structure in large part mirrors that of the Nurses Award, is that right?‑‑‑It was based – I'm just looking at the back of it – it was based on our old Nurses Other Than Hospitals Award back in the day, and yes, it does mirror that.


Ms Cudmore, I understand that you were sent earlier today a copy of that agreement; that's what you're looking at now – you're looking at the Alliance Health Services Group Pty Ltd Trading As Alliance Home Care Services Enterprise Agreement 2009 – 2013, that's what you've got?‑‑‑Yes.


I presume you'd accept that the rates identified in that - and I think you've taken yourself to the classification structure – the rates in Schedule 1 that are identified are well below the current rates in the Nurses Award?‑‑‑Yes.  They're not the rates that we currently pay to.  They were the rates that were determined at the time of that EBA being approved.  Yes, and we modify obviously and benchmark against the SCHADS Award every year to make sure that we're compliant with our requirements.


So you pay – essentially you adopt the terms and conditions of this agreement, but you pay minimum award rates?‑‑‑We benchmark against minimum award.  We actually pay more than the minimum award rates, those base rates.


Is that by reason of contractual arrangements with employees?‑‑‑No, that's our choice, and it's also an opportunity for us to engage in (indistinct) business.


You say you pay above minimum award.  You haven't replaced this 2009 agreement?‑‑‑No, we haven't.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


You haven't entered into any negotiations with your staff to replace the agreement?‑‑‑No.


In terms of directing employees to their terms and conditions, and indeed pay, is it correct that you direct employees to this instrument?‑‑‑Yes.


You give some evidence at paragraph 32 about the use of care plans.  Could I ask you to turn that up?‑‑‑Sorry, I missed the question.


Could I just ask you to turn to page 6 of your statement and paragraph 32?‑‑‑Yes.


In answer to some questions earlier, you referred to a clinical care coordinator I think you said?‑‑‑Yes.


Would it be the clinical care coordinator who might be responsible for preparing a care plan?‑‑‑That's correct.


Or indeed a care coordinator if the contents of the plan don't involve what you've described as clinical care?‑‑‑Correct.


You give an example of a care plan at SC02.  Do you have that?‑‑‑I do, yes.


Am I right in assuming that this is a template that either the care manager or the clinical care coordinator will use to build a care plan?  This is not a finished product, this is a template?‑‑‑Yes, that's correct.


But for some parts of it, and if I can direct you to page 3, you'll see there, 'Client non‑response to scheduled visit plan'?‑‑‑Yes.


I presume that, 'One support worker to contact Alliance Community office' to 'Alliance Community staff to contact next of kin' and so on – those are matters – they're boilerplate provisions, they will appear in every care plan that's prepared for Alliance Community?‑‑‑Yes.


In your evidence you also refer to an 'employee handbook'?‑‑‑Yes.


And you say that the employee handbook is provided to all employees, is that right?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


Is it provided on the commencement of employment; is that the standard practice?‑‑‑That's correct.


Do you provide a hard copy, or how is it done?  How is it provided to employees?‑‑‑Hard and soft.


So you physically give them the document?‑‑‑Yes.  We do a lot of printing.


And also email it to them?‑‑‑Correct.


Is there an induction process as well?‑‑‑There is.  They do an online induction, and they do a face‑to‑face induction component.


What matters does that induction cover?‑‑‑Everything basically – well, I suppose that the induction's been around their tasks, their roles and responsibilities.  The way that we've constructed the inductions, they meet the requirements of the Aged Care Accreditation Agency, which we are accredited with, and NDIS and ACAS certification.  So it talks to roles, high risk activities, incidents, work health and safety, who your line manager is, communication skills, you know, some of our higher risk sort of things like clients with challenging behaviours, how to escalate concerns, that type of thing.  All those things that we need to meet industry standard, we need to address in our induction process.


How long does that induction process go for?‑‑‑I think it goes – I think the online is for about an hour‑and‑a‑half, and then there's about another hour‑and‑a‑half in the office with generally the clinical person, and then there's catch up field supervision as they work through their role.


You say in your evidence that the employee handbook details the procedure to be followed for the majority of services that Alliance offers, that's right?‑‑‑Yes.


And you describe it as providing clear boundaries and guidelines regarding what work can be performed?‑‑‑I think so, and that's certainly the feedback from our auditors that we have received.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


So you would expect that – well, I'll go back a step.  Is the same handbook given to enrolled and registered nurses as well?‑‑‑No, there's a clinical policy and procedure manual, which speaks to the detail of what would be required by a registered nurse or enrolled nurse in their practice.  So you will see here, it doesn't talk specifically about, you know, complex wound care or any of those type of things, but – or enteral feeding in complexity, but that clinical policy and procedure manual is adopted for that, and then should that workforce be required to – should the carer workforce be required to support in that activity, the role of the clinical coordinator or the clinical manager is to take that policy, teach to that policy, and align the roles and responsibilities appropriate to the competency of the worker and to their skills and experience.


So you would say that armed with this handbook, a community support worker, who is not an EN or RN, would be able to know what work can and can't be performed?‑‑‑Yes, I presume so.  We haven't had feedback to suggest otherwise.


And you would expect them to know what to do in certain circumstances?‑‑‑I would reasonably expect them to know what to do from the information provided to them.


I presume that providing clear guidance to employees is particularly important in an industry such as home care, because the employees won't be receiving direct supervision most of the time, will they?‑‑‑Yes, that's right.


Are the contents of the handbook something that you have had involvement in and that you are familiar with?‑‑‑Yes, intimately.


I rolled up the question there.  Is it both you are intimately involved in preparing the document?‑‑‑I'm one of the clinicians also, so yes, I am part of the review and process.


Can I ask you to turn to the handbook?  It's at SC5 of your statement, and can I commence with some questions that arise in section 3?  The page number, it says in the bottom left‑hand corner page 7 of 4, but I think it's about 15 pages in.  At the top of the page you'll see 'National criminal history record check' and 'Working with children check'?‑‑‑Sorry, I'm just trying to find – did you say at SC5, did you say?


Yes, so it's – I suspect you're familiar with the 110‑odd page document.  It's the last annexure to your statement?‑‑‑Sorry, it doesn't seem to have printed.  Let me just pull it up online.  One moment.  Apologies.


Are you comfortable having it online, or would you like an opportunity to print it?‑‑‑No, I can – if you're happy to wait I can call it up online.  I actually don't have it on my record.  Can you pull it up?  I can talk to it if you want to view it.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


That might be outside my scope of practice.  I would have no objection to Mr Ward emailing you a complete copy of your statement.


MR WARD:  If the Commission pleases, we'll resend it to Ms Cudmore.  We'll do that now.


MR McKENNA:  Thanks?‑‑‑You've got me curious.  What is the document?  My apologies, I thought it was – I did have that.  It just wasn't labelled.  I thought it was still the end of the (indistinct) manual.  Yes.


So we're all talking about the same thing; you've got SC05, 'Community support worker handbook', put up by Alliance Community?‑‑‑Yes.  Thank you.  Sorry.


No, not at all.  Can I ask you to turn to section 3?‑‑‑Yes.


And then from section 3, four pages in, and it's got at the bottom, page 7 of 4.  At the top of the page is, 'National criminal history record check', and 'Working with children check.'  Do you have that?‑‑‑I do.


And then at about point 2 of the page there's a heading, 'Supervision training and performance reviews', and it there provides that:


The Alliance Community team will support you in the performance of your role.  All staff are expected to work within their scope of practice, as provided to you in your job description.




Is it the case that new employees are given a document that is their job description, is that right?‑‑‑Yes.


And so am I correct in assuming that this handbook is to be read together with that document?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


And so to make sense of this handbook, you need to read it in tandem with the job description?‑‑‑Yes.  Well, they'd normally get the job description - like, in the sequence of how you interview people and you go through the process of inducting them, they normally get their job description first; it describes their role, and then the handbook becomes the deeper document obviously that gives them more detail.


It gives them more detail, but at least with respect to this point, it's referring them back to – the handbook is referring the employee back to their scope of practice document?‑‑‑It says that, yes.


At the bottom of that page in the table, you'll see in the left‑hand column, in bold, 'You arrive at a client's home and they're not in', and this is what to do if – you have that?‑‑‑Yes.


And then what the employee is to do if they arrive at a client's home and they're not in is to:


Leave one of the calling cards provided to you at the interview, to advise the client of your attendance, note the absence on your timesheet and call the agency to advise as soon as possible.  The community team will liaise with the client to determine if a cancellation payment is applicable.


So do I take it that if I am a community support worker, I turn up at a client's home, that's what I am to do?‑‑‑Yes.


I took you earlier to that template care plan, which is back at Annexure SC02.  Can I ask you to turn back to that?‑‑‑Yes.


Page 3, which is the example that I took you to, 'Client non-response to scheduled visit plan'?‑‑‑Yes.


You'll see there, and I presume that this is – I think you accept that this is the boilerplate provision.  This is going to in every care plan and it provides for:


The support worker is to contact the Alliance Community office.  The Alliance Community staff will contact next of kin, office staff to contact Triple 0 if any concern remains.


Do you see that?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


You accept that that sets out a different set of expectations of what the worker is to do if they arrive at a client's home and they're not in?‑‑‑Not really.  The only difference is that they're not necessarily on that care plan, saying they're leaving a calling card, but in essence they're calling – the priority is that the person is safe, so the first priority in both documents is that they call the office and we work through investigating what's happening.


Then over the page, the second heading on the left-hand side, if you arrive at a client's home and you know that they are there but they are not answering the door, then what the person is to do is to call the office for assistance and refer to the policy for emergency management section 11?‑‑‑Yes.


Would the relevant part of section 11 be included in a standard care plan?‑‑‑No.


Then at the bottom of the table on that page, what to do if an incident or hazard occurs in the workplace, and then you'll see that the handbook refers the reader off to sections 11, 12, 13, 14 or 15?‑‑‑Yes.


You would accept that the situation of an incident or a hazard occurring at the workplace is of utmost importance?‑‑‑Yes.


It would be essential that clear instructions be provided to an employee about what to do in those circumstances?‑‑‑Yes.


If you turn over the page to section 4, support worker roles and responsibilities, do you have that?‑‑‑Section 4, I do.


Then under the heading, 'Dignity, Respect and Empathy', the second paragraph, there's a reference there to client's care and services plan.  So that's a care plan that we've gone to, is that right?‑‑‑Yes, yes.


Then at about halfway down the page there's a reference to dignity of risk, do you see that?‑‑‑Yes.


Is it rather that dignity of risk refers to the concept of affording the person the right or the dignity to take reasonable risks?‑‑‑Correct.


Here the employee is invited to contact the office if they are concerned that a risk is too high?‑‑‑Correct.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


You would accept that a determination of whether a risk is too high is clinically and ethically complicated?‑‑‑Yes, so the scenario would play out that the clinical coordinator would go and do an assessment and determine – so essentially we want to hear from our workforce whenever they're concerned about anything, so we speak a lot about calling the office, checking in.  Any concerns are then investigated by a clinician to determine the basis and to help construct those discussions around dignity and risk which are very tricky as you know.  If there were to be issues or if there were to be things that we had negotiated with the client from that discussion and was assessed to be clinically safe as much as you can in those tricky discussions, they would then be documented in the care plan.  So these care plans aren't static.  They get reviewed and they get documented so that we have as much communication back with our workforce in the field as possible to enable us to deliver safe care and to enable our workforce to obviously work in a safe environment.


You rely on the care worker to communicate back about those matters?‑‑‑So we do and that's part of the induction that we do that but we also have the clinical coordinators who do their independent assessments as well.  It's a holistic sort of approach.


Then directly beneath that there's a reference to the code of professional conduct and ethics.  Do you see that?‑‑‑I do.


Where would I find that code of professional conduct and ethics?‑‑‑In the handbook and the - - -




Sorry, where in the handbook would I find it?‑‑‑Well, it's – that's what it is, the code – it's a policy statement.


That is the code?‑‑‑Yes.


The code that immediately follows that, that is the code of professional conduct and ethics?‑‑‑Correct.


Then if you turn over to what I've got as page 22 of 4, you'll see at about point 7 of the page the heading, 'Documentation and Client Medical Record File.'  Do you see that?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


Then in the second dot point it provides:


Workers are required to fill in the appropriate documentation and write in the care progress notes where indicated, e.g. change of treatment, new adverse event, appointments.


I presume that documentation is critical?‑‑‑Yes.




For any adverse events or change of client condition ensure that the documentation contains information on who is notified.


I presume that where there has been an adverse event or change in client condition, accurate and correct reporting is even more critical?‑‑‑Yes, we have a – so that would be raised as an incident, so we have a whole incident pathway, incident documentation, investigation documentation, to support all that.  And we have centralised incident management and reporting software solution that supports us in collecting that information, risk rating it, trend – using the opportunity to use trend analysis to determine, you know, a big picture position as well.


You've just said you have a centralised management incident reporting system?‑‑‑Yes.


Despite that, you here refer in this part of the manual, you say:


Guidelines on the principles of a documentation are available on the New South Wales Nurses and Midwives Association website.


As I understand it, if I'm reading this as a care worker and there is something I need to document, particularly having regard to an adverse event or change in client condition, I would understand that I should go and have a look at the New South Wales Nurses and Midwives Association website to work out how to do that.  Is that not correct?‑‑‑That's probably – you're right, I probably need to – we probably need to amend that.  That's probably old in terms of how to document.  We address that in what we expect in documentation in the induction process.  I think what we find with our care workforce, we ask them to write incident reports and our clinical – because we understand within their scope of practice they might not have the experience to, you know, to write the detail or understand and do the clinical review obviously, and then our clinical person, our clinical partner, would go in and complete that documentation in tandem with the support worker.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


I presume to start that process it is critical that you get some accurate documentation from the care worker?‑‑‑The first thing is – the most critical thing in running a community program is that we get a phone call from there.  That's where our communication starts.  From there, that's when we revisit what documentation is required.  We have the opportunity to act immediately and to brief or – and work with the support worker on what the documentation needs to say.  And then once we have that baseline information we send in our clinical person to do a clinical incident review if it's, you know, a clinical incident.  If it's a general complaint management staff will do a complaint review process as well.  So we use our senior staff to do that role which is a management and clinical role to make sure we understand the issue really well and resolve it.


You rely on care workers to document incidents that they observe in providing home care, don't you?‑‑‑Yes.  So they - shall I give you an example?


No.  You accept that?‑‑‑Yes, I do.  I accept that they give the frontline reporting on what's happened within their knowledge and scope of practice, and then we put a second line of supervision across that to qualify, check, that type of thing.


And do you say that that's all dealt with in the induction program?‑‑‑Yes.


Does the induction program follow a written document?‑‑‑There's a written document that's provided to them?  Is that what you're talking about?


Well, let's break it down.  Part of it's online, is that right?‑‑‑Yes.


And can that online content be reduced to a printout?‑‑‑Yes.


And are there separate documents that are provided to a care worker induction as well?‑‑‑Yes, they get the induction pack which is just summary and the slides that are the online component.


So they get the document about their scope of practice?‑‑‑Yes.


They get the 110 page workbook?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


They get a summary of the slides?‑‑‑Yes, and then the slides of the orientation to the business, and then they do - like the other part of the online induction process is modules.  So they do a module on working with the aged in the community.  They do a module on infection control.  These modules are industry standard modules that they do through a learning platform, which is called - we usually call Go 1, but that doesn't really matter - it's through a learning platform.  The induction part is what we design as our content and that's how we want them to - we require staff to interact with us, and includes those important things like work health and safety, who their manager is, how they document, how they escalate an incident, all those type of things.


So those are things that would be found outside this manual?‑‑‑They're a reflection of the manual.  They will be found - the content is in both places.


And is it the same?‑‑‑Pretty much.  It's summarised - is that the presentation, 150 pages, goes into a presentation which is summarised.


Can I ask you to turn the page and hopefully you see the heading 'Complaints policy and procedure'?‑‑‑Yes.


Is it the case that what follows - is the complaints policy and procedure a separate document or is it simply just what follows the heading?‑‑‑That's what follows the heading.


All right.  Can I ask you to turn to section 11 of the handbook, which I think using the numbers in the bottom left-hand corner is page 60?‑‑‑Yes.


And I think you accepted earlier that it would be critical for a support worker to know what to do in an emergency situation?‑‑‑Yes.


At the start of that under the heading 'Emergency management' you refer to a kit.  Is that a kit for dealing with emergencies?  In the second paragraph under the heading 'Emergency management'?‑‑‑Yes.


And they're not items that you actually provide to employees, they're required to purchase those things?‑‑‑We have them - we have them available.  I'm just trying to remember if we give them to everybody on - yes, I don't think everybody gets them, but we have them available.


To purchase?‑‑‑We just give them away.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


So where it says, 'These items can be purchased through the Alliance Community office' that's wrong, is it?‑‑‑Yes, that's wrong, we don't - that could be a while ago, we don't do that.  It's too hard to administer.


You refer at page 62 - this comes under the heading of 'Emergency procedures, collapse, medical emergency, if the worker is not present at the time of the event.'  Do you see that heading on page 62?‑‑‑Yes.


And there's a doctors, 'Drs'?‑‑‑Yes.


Then under that there's a reference to, 'At this stage assess for rigor mortis, stiffness and/or circulatory pooling.'  What's circulatory pooling?‑‑‑When they're cool and their (indistinct).


Sorry, I missed that, they're what?‑‑‑They're cold to touch.


Again we can see procedure for the discovery of a deceased client on page 66?‑‑‑Yes.


'(Indistinct) procedure in the event of an unexpected death.'  Is that something that occurs from time to time?‑‑‑From time to time, yes.


And it's simply a part of the job that a care worker has to deal with?‑‑‑Yes, especially when (indistinct) aged people.


And then can I ask you to turn to section 13.  It's on page 73.  Section 13, 'Occupational health and safety'?‑‑‑Yes.


And then over on page 75 you will see the heading 'Hazard identification.  What to do if you identify a hazard.'  Do you see that?‑‑‑Yes.  Yes.


And part of the role for the care worker there, depending on the severity of the hazard, is that they may need to remove the client from the hazard?‑‑‑Yes.


And then under the heading 'Violence in the workplace' - - -?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


- - - the second last paragraph there, there's a reference to the violence prevention policy.  Is that a separate document or is that to be found somewhere within this handbook as well?‑‑‑I think that is in the clinical handbook.  So not in this one.


Is the violence prevention policy, that I think you said is contained in the clinical handbook, is that something that's provided to personal care workers?‑‑‑No.  No, not in - no, no.  It's sort of around the clinician or the manager assessing the environment, and it talks to things like restrictive practices and safe environment.  It comes under the remit of a manager to be able to create strategies with our clients to ensure that we've got a safe environment.  As you can imagine we have a range of different circumstances in which we deliver care in the community and they all are individually - you know, high risk scenarios are individually evaluated using a case conferencing methodology which pools in other partners in their care program like GPs and gerontologists or disability specialists.


Ms Cudmore, on page 77 - and this arises under the heading 'Risk control, warning signs of impending client initiated violence.'  The handbook goes on to address what to do when confronted with an aggressive client.  Do you see that?‑‑‑Yes.


And what the care worker is told to do is:


To stand outside their personal space and out of arms reach.  To stand on their non-dominant side, to use calm, quiet but determined manner.  Always be courteous to clients whatever their behaviour.  Avoid staring eye contact.  Avoid pointing or touching angry people.  If providing guidance on condition treatment service do so in terms of suggestions rather than instructions.  Try to appear relaxed and non-aggressive.  Recognise the causes of complaint by their clients and explain the formal complaints mechanism available to them.


So that's what I should do if I'm a care worker when confronted with an aggressive client?‑‑‑Yes.


Would it not be appropriate for someone confronted with an aggressive client to remove themselves from the environment completely?‑‑‑It depends on the situation.  Each case - each situation has to be assessed on its own merit, but I can't answer that on the generic statement.


Section 15, which starts on page 93, could I ask you to turn that up?‑‑‑Yes.


You'll see there guidelines for managing challenging behaviours?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                XXN MR MCKENNA


And then on the following page, 94, there's a heading, Preventing - no, just above the heading, Preventing Difficult Behaviours, it said that:


It is not the responsibility of a worker to fix a premorbid personality that gives rise to difficult behaviour, it's our responsibility to manage it.


Can you explain what you mean by pre-morbid personality?‑‑‑People have obviously brain injuries, it can be dementia, it can be mental health issues, so, the role of us in the service is not to be medical and cure and prescribe, but our role is to support the person in the best way we can with their known pre-conditions.  It'd be similar to supporting - similar but different to supporting somebody who has diabetes, we know that, so, we work with that, and we know they have some behavioural issues, we know that as part of our assessment, part of our review and our training, and we customise and create services to the best of our ability around that customer's needs.  So, we don't want to discriminate obviously, that's the point of that sentence.


In terms of what follows - well, in terms of this section, challenging behaviours, I suggest to you that the focus of the handbook is on preventing de-escalating, rather than the protection and occupational health and safety of the employee?‑‑‑No, I would say that they go hand in hand.


You don't suggest that anywhere in this section 15 a worker who was put in the dangerous situation is instructed that they should remove themselves from that situation immediately?‑‑‑Where section 15 talks about challenging behaviours, the challenging behaviour doesn't necessarily mean that they're in danger.  So, I know where you're going with the questioning, but I'm not sure that I actually agree with you.


You, of course, accept that challenging behaviours and pre-morbid personalities might manifest in - might present a danger to the worker?‑‑‑Yes, and worker safety is paramount.  It doesn't - if the inference is that it's not, that's not correct.  We'd expect that our staff ‑ ‑ ‑


Ms Cudmore, if you're answering the question, that's fine, otherwise Mr Ward will have an opportunity to ask you further questions in re-examination.  And there are no further questions in the cross-examination from the ANMF, if it please.



CROSS-EXAMINATION BY MR GIBIAN                                         [1.04 PM]

***        SUSAN CUDMORE                                                                                                                      XXN MR GIBIAN


MR GIBIAN:  Thank you.


Ms Cudmore, I ‑ ‑ ‑


JUSTICE ROSS:  How long are you likely to be, Mr Gibian?


MR GIBIAN:  I think probably 15 minutes or so.  I'm in the Commission's hands obviously.


JUSTICE ROSS:  What's the view of the parties?  Do we press on with the witness and then take the break, or do you want to take the break now?


MR GIBIAN:  I'm entirely neutral, your Honour.


MR WARD:  So am I, your Honour.


JUSTICE ROSS:  It's up to the ‑ ‑ ‑


MR McKENNA:  If it's relevant, I'm neutral as well.


JUSTICE ROSS:  Well, it might be convenient to not hold up the witness over the break and deal with it now.  Mr Gibian.


MR GIBIAN:  Thank you


Mr Cudmore, you can see and hear me or at least hear me?‑‑‑Yes.


My name is Mark Gibian, I appear for the HSU.  I just had a few questions.  Firstly, just in relation to the operations of Alliance Health and then Alliance Community, you say in paragraph 10 of your statement that Alliance Health, at that stage, was initially a nursing agency, and I think that's still a larger part of the business; is that correct?‑‑‑Yes.


And then you expanded into what you describe as community nursing and disability services in 2004?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                      XXN MR GIBIAN


Alliance Community still does disability services and home care services for aged persons?‑‑‑Yes.


I think you said both under the Commonwealth Home Support Program and the Home Care Packages Program?‑‑‑Correct.


I think at least your website says both of those are limited to New South Wales; is that right?‑‑‑Correct.


I think I understood from answers you earlier gave you had very few home care packages; is that right?‑‑‑Yes, I think we've got about 68, something like that.


And more clients in the Commonwealth Home Support Program; is that right?‑‑‑Yes.


Are you able to - I think you say you have - sorry, going back one step, when did Alliance Community or Alliance Health start undertaking home care work with respect to aged persons?‑‑‑I think we ‑ ‑ ‑


As opposed to disabled persons?‑‑‑Okay.  Well, in 2004 essentially the way that it started, because we're a nursing agency we got referrals from discharge planners to support private clients in the home, and some of them were aged, so, we started that way, and then we started to do DVA community nursing, some of those obviously are aged.  And then - we're not doing that currently, but I think home care packages, we became an approved provider and received our first home care packages about five or six years ago.  It's a smaller component of our business, and our disability, our NDIS component of our business is much - is probably (indistinct) yes.


And I think in paragraph 12(a) you refer to providing community care and disability support to over 1000 individuals.  I take it more of those are persons under disability programs rather than one of the home care programs?‑‑‑With Commonwealth Home Support we have a lot in numbers, so if you were to look at in numbers it's probably equal, but if you were to look at hours of care delivered it'd be much more significantly in the disability space.


And ‑ ‑ ‑?‑‑‑(Indistinct).


I'm sorry, yes?‑‑‑That's okay.

***        SUSAN CUDMORE                                                                                                                      XXN MR GIBIAN


Sorry, I didn't mean to cut you off.  And then in terms of employees, you say in paragraph 16 there's around 450 in aged care and disability - providing home support in aged care and disability.  Do I take it from that answer, more of those would be involved in disability rather than aged care?‑‑‑That's correct.


Do you have employees who are doing both?‑‑‑Yes.


That is providing home ‑ ‑ ‑?‑‑‑We do.


And are you able to give some indication, do most of them do both?‑‑‑No, predominantly they - I would say only - and I'm - I don't have the data in front of me obviously, but I would probably say that, first of all, 50 maybe 20 per cent do aged care and disability, some just - a smaller number just do aged care, the rest of our cohort do primarily disability.


Now, you were asked some questions about the enterprise agreement that, as I understand it, you apply, but except now pay different wage rates obviously?‑‑‑Yes.


You apply that enterprise agreement to the employees providing home care both in disability services and aged care?‑‑‑Yes, just in our New South Wales office, because it sits under that ABN.


So, in New South Wales you do the aged care and disability work.  It's disability work also in other states, I think; is that right?‑‑‑Yes, that's correct.


So far as the New South Wales operations are concerned, the enterprise agreement is applied to both workers in aged care and in disability support?‑‑‑Yes, that's correct.


You attach at paragraph 35 two position descriptions for level 3 and level 4 employees?‑‑‑Yes.


They are marked as SC3 and SC4?‑‑‑Yes.


Firstly, SC3 is the level 3 health support worker?‑‑‑Yes.

***        SUSAN CUDMORE                                                                                                                      XXN MR GIBIAN


Is that intended to correspond to the relevant classification in the enterprise agreement?‑‑‑We've aligned – you'll see the enterprise agreement classifications look differently.  We've done a process of aligning them with the SCHADS award in terms of those, you know, the nomenclature, I suppose I would say.


Sorry, so you've endeavoured to adopt language from the SCHADS award for the purposes of this position description?‑‑‑That's correct.


Do you know which part of the SCHADS award you got it from?‑‑‑Not off the top of my head.  The healthcare workers' one but I can't remember exactly where in it.


You'll see if you're on the first page of SC3, it's for the record page 13,724 of the court book, you'll see the job title is said, 'Health Support Program – Health Support Worker', I'm sorry, and next to it is, 'CHSP Program'?‑‑‑Yes.


That's the Commonwealth Home Support Program.  Is this position description specific to that program or is this just an example?  That is, is the same position description used for disability care, disability support and for the home support program, and this just happens to be one for a worker that works under the home support program?‑‑‑If you look at the two descriptions, one is a level 3 and one is a level 4.  There's level 3 and then in the CHSP program it's support, it's not clinical.  So the tasks are a lesser component.  They're more generalised, I suppose, for want of a better word, whilst the level 4 supporter which is the SC04 evidence, talks to, you know, some of those more complex tasks in a different category, so - - -


I'm sorry, did you want to go on?‑‑‑So, for example, in the CHSP program predominantly we're doing – supporting people with some mild personal care and domestic assistance.  That's sort of – it's very low level supports and it's supervision as opposed to direct – often direct hands-on.  Whereas other programs, such as health support worker level 4 you can see there's more complexity and more clinical components to that.


Just starting with level 3, we're right in understanding, then, are we, that that is the position description that's relevant to the CHSP program because of the level of duties which are contemplated for it which are lower level than for home care packages or disability support?‑‑‑Yes.


So far as you have – I think you said there was 68 or something home care packages and the disability support, there's a high level of clinical work involved?‑‑‑Yes, that would be level 4.

***        SUSAN CUDMORE                                                                                                                      XXN MR GIBIAN


They would be level 4 and utilise the same position description for the worker's delivering services under a home care package and the disability support service?‑‑‑Yes.


An example of that is at SC4?‑‑‑Yes.


I understand and to the extent you referred to greater clinical work, if I can just ask you to turn to SC4, it commences at page 13,726 of the court book, the typical duties are listed on the second page of that position description at page 13,727 of the court book?‑‑‑Yes.


Again, I'll try and summarise so tell me if I'm going too quickly but the additional features of the level 4 appear to be directed at – opposed to the level 3, there's a focus on for inclusion of issues in relation to toileting and continence, mobility, transferring and mobility, skin care, oral medications, fitting aids and appliances, and nutrition and oral medications.  Are they the major clinical aspects you were referring to, differentiating level 4 from level 3?‑‑‑Yes, that's correct.


Thank you.  That was the additional cross-examination?‑‑‑Thank you.


JUSTICE ROSS:  Re-examination, Mr Ward?


MR WARD:  Only one question, if I can, your Honour.



RE-EXAMINATION BY MR WARD                                                   [1.15 PM]


MR WARD:  Ms Cudmore, do you recall being asked questions by Mr McKenna about aggressive behaviours and I think he used the word 'dangerous situations'?  Do you recall that evidence?‑‑‑Yes.


If an employee of yours was in a client's home and they felt unsafe what is the procedure they have to follow?‑‑‑They would leave and call the office and advise for guidance.


Thank you, Ms Cudmore.  No further questions.  Might the witness be excused?

***        SUSAN CUDMORE                                                                                                                       RXN MR WARD


JUSTICE ROSS:  Yes, thank you for your evidence, Ms Cudmore, you're excused?‑‑‑Thank you very much.

<THE WITNESS WITHDREW                                                             [1.16 PM]


JUSTICE ROSS:  You should all have that statement with the directions that Mr McKenna raised with me this morning.  I'm sorry about the delay in that.  I think it will be published later today.  So we've got one more witness left.  We'll adjourn and resume at 2 pm.


MR GIBIAN:  If the Commission pleases.

LUNCHEON ADJOURNMENT                                                            [1.16 PM]

RESUMED                                                                                                [2.00 PM]


JUSTICE ROSS:  All right, let's call the witness and swear the witness in.


THE ASSOCIATE:  Mr Brockhaus, can you please say your full name and work address.


MR BROCKHAUS:  Johannes Heinrich Brockhaus, working at 39 Hawkesbury Road, 2777, Springwood.

<JOHANNES BROCKHAUS, AFFIRMED                                         [2.00 PM]

EXAMINATION-IN-CHIEF BY MR WARD                                      [2.00 PM]


MR WARD:  Mr Brockhaus, Nigel Ward here.  We haven't had the pleasure of meeting, but you've met my colleague Ms Lombardelli on several occasions.  Can you hear me okay?‑‑‑Absolutely.


I wonder if you could restate your full name and address for the record, please?‑‑‑Yes.  Johannes Heinrich Brockhaus, 39 Hawkesbury Road, 2777, Springwood.


And you've made a statement for these proceedings of 158 paragraphs dated 3 March 2022?‑‑‑Correct.


Do you have a copy of that statement in front of you?‑‑‑Yes, I do.

***        JOHANNES BROCKHAUS                                                                                                              XN MR WARD


And have you read that statement?‑‑‑Yes, I have.


Is it true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.


For the Commission's benefit Mr Brockhaus' statement is found at tab 255 in the digital court book 13,466 to 13,486.  It has some 25 annexures in the digital court book from 13,487 to 13,575 and we rely on that.  Mr Brockhaus is available for cross-examination.  Mr Brockhaus, the barristers from the HSU and the ANMF are going to ask you some questions?‑‑‑Yes.




MR GIBIAN:  Yes, thank you, your Honour.

CROSS-EXAMINATION BY MR GIBIAN                                         [2.02 PM]


MR GIBIAN:  Mr Brockhaus, can you hear me?‑‑‑Yes, I can.


Excellent.  My name is Mark Gibian, I appear for the HSU in these proceedings.  Do you have a copy of your statement with you?‑‑‑Yes, I do.


I just wanted to first make sure I'd understood your work history before you were at Buckland.  I think you say you arrived in Australia in 2009 and did some work as a care worker while you were getting your qualifications recognised?‑‑‑That's correct.


How long was that period?‑‑‑I would say probably 12 months.


You then worked as a registered nurse in aged care, is that right, after that?‑‑‑Yes.


How long was that for?‑‑‑Different organisations, for over a period of possibly five years.


Possibly.  Sorry, which organisation was that?‑‑‑So the first organisation was Southern Cross Care in Darwin, Northern Territory, for a period of I would estimate eight months.  Following that I worked for a community service provider also in Darwin, Northern Territory, called D and R Community Services, probably I would estimate a period of four years.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


Was that the work that you refer to as being in remote communities?‑‑‑Yes, the work itself was fly-in, fly-out, going to several different communities stretched across WA, Northern Territory and Queensland.


That obviously wasn't residential aged care.  Was it dealing with all types of clients in those communities?‑‑‑Some of the services were multi-tiered meaning the residential care, also home care, but all of the services had a residential care component, better known in the industry, in the sector, as flexible care.


That is you were visiting communities, were there facilities in those communities?‑‑‑Yes, correct.


What did you do?  That is, you didn't work fulltime in those communities, it was on a fly-in, fly-out basis, is that right?‑‑‑Yes, it was always different, between two weeks and three months.


I understand.  Did you then go to Buckland?‑‑‑Yes, there were another two other employers in between but in 2019 I commenced work at Buckland Aged Care.


Sorry, what was the work in between then?‑‑‑Sorry, let me just think.  So I work for St John's Community Care in Cairns, Queensland, probably for a period of 12 months.  And I worked from 2017 to 2019 in Orange, New South Wales, as a residential care manager.


What was the – sorry, St John's Care, is it?  What does it do?‑‑‑It's a community, a home care provider.


In relation to Buckland's operations, so there's one aged care facility, I think you say now it has 144 beds?‑‑‑Correct.


There's also, it may be pre-existing, a retirement village operation?‑‑‑Correct.


I take it they're units that are owned by the residents?‑‑‑The units are owned by Buckland and under the management fees residents, yes, hire units.


I understand.  Very recently you've started doing some home care work just this year?‑‑‑Yes, that is correct.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


As you say, I think, primarily in the full residents of the retirement village?‑‑‑That is correct.


You make some comments in relation to the demographics of residents commencing at page or paragraph 30, I should say, of your statement.  Firstly, in paragraph 30 you refer to there being a material change in the type of persons accessing residential aged care since you've joined the industry.  I take it that you're saying since 2009 that - - -?‑‑‑Can you repeat the last part of the question, please?


Yes, sorry, at paragraph 30 you refer to there having been a material change in the type of persons accessing residential aged care since you joined the industry.  Do you see that?‑‑‑Yes, that's correct.


You're referring to the period since 2009?‑‑‑Primarily to the period since 2018.


Then in paragraph 31 – sorry, and in terms of that material change, just to be clear, that's an increase in the levels of both the age, frailty and levels of acuity and health needs of the residents?‑‑‑Yes, all of the above.


You say that that change has occurred in a noticeable way since 2018?‑‑‑Yes, I believe so.


Most of that time you've been at Buckland, I think, so you're talking mainly about the experience at the Buckland facility?‑‑‑Yes, well, at the time in 2018 I was still working in Orange as the residential manager, and then 2019 at Buckland.


In paragraph 31 you refer to there having been what we'll call social admissions, that is residents with low or – well, low care needs, I take it, up until 2018?‑‑‑Yes.


Is that your experience at the facility in Orange?‑‑‑Similar but I worked for a shorter period in Orange, but the data, the analysed data would indicate the same.


Sorry, are you talking about what was happening at Buckland up to 2018?‑‑‑Yes, so both data sets will conclude the same, that prior to 2018 there were a larger number of admission for people entering throughout that actually could have been cared for at home.  While in 2018 subjectively my perception is that there has been a return.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


Sorry, I'm just trying to understand what the basis of that observation, that is from your analysis of the records of Buckland, there were a higher number of social admissions up until 2018 and that ceased since that time?‑‑‑Yes, I believe so.


Do you have any now that you would call social admissions to Buckland?‑‑‑Not recently, no.


Since 2019?‑‑‑I believe there would have been one or two, yes.


But generally speaking residents accessing that facility have already very high levels of care needs before they event enter the facility?‑‑‑Yes.


I take it that's obviously had a significant impact on the care work that has to be done.  I think you refer, I'm referring to paragraph 50 of your statement, to having put on some additional nursing staff as a consequence of those changes?‑‑‑Yes, correct.


That is obviously enough that the higher care needs of the residents has produced greater clinical care needs that have to be dealt with by the care workers and the nursing staff and you've endeavoured to address that in part at least by some additional nursing staff?‑‑‑Yes, but not purely clinical.  I mean, it's often just, you know, more physical work.


Sorry, perhaps I should have been clearer.  Both greater clinical needs but also just greater needs with mobility, showering, toileting, feeding and the like, consequent upon the higher care needs of the residents you're now experiencing?‑‑‑Correct.


If you just go to paragraph 50 you now say you have four registered nurses on the day shift, three in the afternoon and two at night.  When did you change those staffing numbers?‑‑‑The staffing numbers are (indistinct) at all times but a significant change happened at the end towards 2019.


What was the staffing levels before that, of the nursing staff?‑‑‑Before then there would have been - going back to 2019 there would have been two registered nurses in the morning, two registered nurses in the afternoon and one registered nurse at night.


And on each of those shifts how many care workers do you have on the day shift?‑‑‑Back in 2019 or currently?

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


Now?‑‑‑Now.  Well, I think it's part of my statement.  It varies a little bit as each wing has differently - has different number of residents and different care needs, but I would say that there should be around seven to nine per wing, and there's a total of four wings.


Sorry, some have a slightly higher number because of the number of residents in that wing?‑‑‑That's correct.  Not each - not each wing has the same layouts, it's a different number of rooms.


I understand.  Are any of the wings devoted to particular type - that is with high care patients, or is there a dementia wing?‑‑‑There's no dementia wing, but there's two wings that are dedicated to purely high care residents.


Do they also have more staff?‑‑‑They have more staff, yes.


Now, just going back slightly - and in terms of that staff number - sorry, the increasing staffing that you referred to, or the increasing nursing staffing that you referred to at paragraph 50, was that a decision that was made soon after you started at Buckland?‑‑‑Yes, correct.


And was it a need you perceived based upon the care needs of the residents that you observed once you joined the organisation?‑‑‑That is correct.


Because there was an unmet nursing need that was being covered by care workers at that time?‑‑‑There was no unmets(sic), no, it was rather - I don't want to make that too lengthy, but when you initially start obviously you try to assess the whole situation.  That includes the funding model which is given to us by the Australian Government.  It has become evident that there weren't appropriate claims made and that the claims were in actual fact much higher, and with higher claims and more identified care needs more staff had to come on board to (indistinct) care delivery.


That is you saw the need to and facilitated a reassessment of some at least of the residents and the care needs that they had been assessed to have for the purposes of the funding - the ACFI I think it is funding instrument?‑‑‑Correct.


And that resulted in an increase in funding which was able to support an increase in staffing?‑‑‑That is correct, but the increase - there was no - we didn't sought an increase in funding, you know, just because we wanted an increase, we just needed to correctly and objectively assess the residents care needs.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


That is, your view was that they weren't correctly assessed at the time that you joined?‑‑‑Yes.


I understand.  Now, just going back slightly, you refer to the - or you describe some aspects of the regulation that's relevant to Buckland from paragraph 25, and particularly the implementation of the 2019 Aged Care Quality and Safety Standards.  Do you see that?‑‑‑Yes.


And you describe in paragraph 25 a feature at least of those standards is that they operate, or a change of philosophy, that is by placing the person receiving care at the centre of every decision and giving them greater control over their care?‑‑‑Correct.


The standards require that philosophy to be adopted in the personal care that's being delivered to residents?‑‑‑Yes, in all aspects of life.


Yes.  As well as, and maybe you just anticipate, but as well as in food provision, cleaning and other services that the resident receives?‑‑‑Correct.


And the provider such as Buckland is required to ensure that its staff are trained and have the skills to provide care, or indeed other services in a manner which facilitates choice and independence on the part of the residents?‑‑‑Correct.


And that's one aspect of what is assessed by the Aged Care Quality and Safety Commission upon the audits that you refer to in paragraph 26, among other places?‑‑‑Yes, correct.


How many audits have you had since 2019 at Buckland?‑‑‑I would say we had two audits since then.


I think there is a difference between a full audit and there can be shorter assessment visits.  Were they both full audits?‑‑‑No.  So the full audits would be full accreditation audits which they only do once every three years.  Both of these audits were outside at the choice of the regulator to conduct them.


That is you haven't had a full accreditation audit as yet since 2019?‑‑‑No, we haven't.  We were due for an accreditation audit, but the Commission has asked for an extension.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


I don't know whether this is the reasoning in your case, I think there's other suggestions that some of those audits have been delayed for reasons related to the pandemic?‑‑‑Potentially.  I can't speak to them.


Okay.  But nonetheless you've had two of the assessment visits in the period you have been there?‑‑‑Yes, correct.


Now, in terms of, sorry, the change in the philosophy or objective of care and service provision and the focus upon choice and the individual needs of the residents, that's something that I think now at least is reflected in the position descriptions that you use.  You attach a number of position descriptions, but can I just ask you, do you have the annexures to your statement as well?‑‑‑I do have them here, yes.


There's a position description for a care worker at JB4.  I don't know whether you have page numbers.  The first page of it has the letters JB04 written at the top.  It's in the court book at page 13,494?‑‑‑Yes, I have it in front of me.


Is that the position for all care workers, that is there's only one care worker position description for the facility?‑‑‑So we have a generalised position description and then more specific position descriptions to different areas I believe.


Sorry, this is the general position description.  Is it then refined in certain ways for particular workers?‑‑‑Yes, I believe so.  I don't have that in front of me, but I believe it is, yes.


When you say you believe it is that is it's something you understand happens, but not something you directly deal with, is that right?‑‑‑That's correct, yes.


Okay.  I understand.  Do you have sufficient knowledge to give an example of when there would be some refinements of this document for a specific role?  If you don't then just tell me?‑‑‑No.  I mean there's plenty of examples going back to 2019.  I mean all the position descriptions across most facilities would have changed with the introduction of the new aged care standard for example, and one that is frequently occurring is when best practice guidelines are being updated on how to deal with, you know, (indistinct) certain issues, then obviously that needs to flow on to the position description.


Yes.  Sorry, apologies, I perhaps wasn't clear.  This is the current version of the position description, is it, the document at JB04?‑‑‑Yes.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


There have just been amendments made over time for the type of reasons you just suggested?‑‑‑Yes.


And one of those reasons was the introduction of the Aged Care Quality and Safety Standards in 2019, correct?‑‑‑Yes.


No doubt among other things one way which those standards are reflected in this position description is at the bottom of the first page there's a list of responsibilities.  Do you see that?‑‑‑Yes.


Firstly with respect to residents, and right at the bottom line on the first page refers to recognising the rights, choices of individuals to participate in care.  Do you see that?‑‑‑Yes, I do see that, yes.


So that's an aspect at least, are we right in understanding, was inserted to reflect the requirements of the current Aged Care Quality and Safety Standards?‑‑‑Well, I can't speak for this particular sentence but it might have, yes.


That is, you weren't directly involved in that process but it would at least be consistent with that view?‑‑‑Yes.


I understand.  If I could just go back to your statement then.  From paragraph 27 you refer to the compliance-based duties which have arisen from the introduction of the 2019 standards?‑‑‑Correct.


If I can summarise, the effect of that – well, an effect in addition to the effect on the care work and other services provided, is that RNs and team leaders are more – well, more of their time has to be devoted to documentation and reporting requirements?‑‑‑That is correct.


The consequence of that is that they're less providing direct care to residents in the facility?‑‑‑Yes, correct.


More of that work is done by the care workers?‑‑‑Every facility operates differently.  In our case more often work is being done by the enrolled nurse rather than the registered nurse.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


Sorry, if I can go back, how many enrolled nurses do you have?‑‑‑I can't speak for the total number but on your typical day shift, morning shift that's 8 to 3, there should be around four enrolled nurses.


Is that, sorry, in each wing or across the whole facility?‑‑‑There's one – well, across the whole facility, each wing has enrolled nurse.


There's in a day shift at least one registered nurse – sorry, four registered nurses across the facility, four enrolled nurses and between seven and nine care workers per wing?‑‑‑Correct.


In each wing the care work is done by the seven to nine care workers and there is also one enrolled nurses involved?‑‑‑Correct.


With the registered nurse being more engaged in documentation and reporting requirements, the care work is then done by the enrolled nurse and the care workers?‑‑‑Correct.


Again with less supervision by the registered nurse than perhaps would formerly – well, less direct supervision perhaps by the registered nurse than was the case previously?‑‑‑The registered nurse is still available to provide supervision where required, yes.


Yes but less directly on the floor?‑‑‑Yes.


In terms of documentation, the care workers also have some documentary requirements.  They're required to complete progress notes, for example?‑‑‑Yes, correct.


And incident reporting where they are engaged or witness an incident?‑‑‑Yes and no.  I want to give clear answers but usually the care staff member or the AIN or whatever you call it, provides the information or starts the incident report and it will have to be finalised by the registered nurse.


That is some form of documentation or record would have to be completed or at least commenced by the person who witnessed or was directly involved in an incident, correct?‑‑‑Yes, yes.


But ultimately it's collated and submitted by the registered nurse or that's within their responsibilities?‑‑‑Correct.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


Can you go on there, from paragraph 52 there's a heading, 'Residential Care Carer', and you then describe some of the activities that are undertaken initially on the day shift and then the afternoon shift and the night shift?‑‑‑Yes.


That goes on for some pages?‑‑‑Yes.


Not doubt you've tried to be helpful in this respect but it reads as if certain activities happen in a particular order each and every day.  I just want to – we're right in understanding that the day of the care workers or what's happening within a particular wing is likely to be interrupted on any particular day by incidents or calls for assistance by particular residents or if the registered nurse needs assistance with something, for example?‑‑‑Yes, correct.


Most days are quite dynamic in the sense that a care worker might start a particular task but then be called away and have to attend to something which is more urgent and they will need to adjust their work throughout the day?‑‑‑That is absolutely correct.


I think you refer later on in paragraph 76 to interruptions occurring throughout the day, one reason being call bells?‑‑‑Correct.


You say the average wait time for response to a call bell is three and a half minutes.  Is that something that you measure?‑‑‑Yes, we do.


Do you have performance indicators?  That is, is there an expectation that a call bell will be answered within a particular time?‑‑‑It's only set by us as an organisation, not by the Commission but, yes, there is.


What is that expectation internally?‑‑‑Four minutes is our time.


If that's not being met it's something you would look into and see what you could do to address it?‑‑‑Yes, correct.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


You also attach to your statement what are referred to as duty statements.  I think the first of those is annexure JB5 which commences at page 13,496 of the digital court book.  I don't need to take you too much to this document.  This also – what's the function of this duty statement?‑‑‑So similar to what you pointed out earlier that the day is not structured for a carer, as you can say at such-and-such time this happens;  this document is more of a guideline to assist the carer to understand what duties come up during the shift.


That's really what I wanted to ask you, that is, this is a guide but how it plays out on any particular day and, indeed, on any day is likely to be quite different?‑‑‑There will be no performance management for any employee if the time changes, absolutely not, yes.


Indeed, the sequence with which things happen is affected just by whatever incidents occur on a particular day?‑‑‑Yes, both by what incidents occur and what the consumer in the end wants.


Yes, so two matters.  Both that the care is directed at the choice, at accommodating, to the extent you can and encouraging the individual resident to make choices to the way in which the care is provided?‑‑‑Yes, correct.


And also that there might be an incident, a fall or whatever it might be, that would interrupt the way and the sequence with which work is performed?‑‑‑Correct.


If I can then just go back to your statement, at paragraph 77 you make an observation, and I take it this is referable to Buckland, that you say:


The work of a carer hasn't changed dramatically, nor has it been greatly impacted by the 2019 standards.


Do you see that?‑‑‑Yes.


Just in that respect you are talking there about the work of carers at Buckland, are you, that you've observed since 2019?‑‑‑I should be able to speak to both Buckland and to previous employment at Orange, yes.


Which was during 2018?‑‑‑Yes, finalised in 2019, yes.


Yes, sorry, 2018, 2019.  In that respect, as you've described even in the period since 2018 there has been or you've observed both at Orange and at Buckland, there's been a significant change in the demographics, that is the age, frailty and care needs of residents?‑‑‑Correct.


That has an impact upon the work that the carers have to perform?‑‑‑Well, yes, it does.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


The standards have also, as you described, changed the philosophy and mentality that the carers are required to adopt when providing care to accommodate and encourage the residents to exercise choice and independence in the way that care is provided and the services they receive?‑‑‑Yes, speaking only for Buckland and for Orange(?) now, that is not the case.  The reality is that this is (indistinct) care style I've always had, and all the changes that the government put it in writing, but it was always the expectation of the staff, you know, to put the resident at the centre of all decision‑making.


I think in answer to that, speaking of Buckland, Buckland always had the objective, in your understanding at least, of endeavouring to place the resident at the centre of care?‑‑‑Yes.


The standards now require that of all aged care providers, and indeed for you to demonstrate as a provider that you have trained staff and that staff are skilled to provide care in a manner which accommodates choice and places the resident at the centre of the care?‑‑‑Correct.


I think the last thing I wanted to ask you about is, going back slightly, at paragraph 39, or from paragraph 39 you refer to engagement with families and external bodies.  Do you see that?‑‑‑Yes.


Just two things; firstly, in terms of the Aged Care Commission, at paragraph 41 you refer to the engagement of staff with the assessors from the Aged Care Commission, do you see that?‑‑‑Can you please repeat that?


Sorry, paragraph 41?‑‑‑Yes.


There you're reflecting upon the experience you've had at Buckland of the two assessment visits?‑‑‑Yes.


Yes?‑‑‑That's correct.


And the assessors spoke to staff members and to residents on those visits, did they?‑‑‑One of those visits, yes.


The other visit they didn't speak to residents or staff?‑‑‑The other visit was conducted via Telehealth.


And that was only with you or with management, was it?‑‑‑Yes.

***        JOHANNES BROCKHAUS                                                                                                           XXN MR GIBIAN


Then at paragraph 43, firstly, the – sorry, one more question on that aspect.  In terms of the Aged Care Commission, obviously the involvement of staff in dealing with auditors from the Aged Care Commission is something that's only been present since 2019, since those standards were introduced?‑‑‑I believe that's incorrect.  When it was still the agency, before if was a commission, they would still engage staff and ask questions.


All right.  Then at paragraph 43 you refer to engagement with relatives and next of kin, and you say they've become more demanding.  Can you state what you mean by that?‑‑‑Well, if you look at the timelines, this all falls in the issues (indistinct) prior before the Royal Commission into Aged Care started, which meant that people were more aware of aged care and the issues arising within, which prompted a lot of our relatives and friends of Buckland to be more inquisitive about the care that we provide and advocate better for the residents.


That is, there's been more contact from residents and next of kin and that contact has been more demanding, in the sense that they have demanded more detailed information or more concrete actions to be taken?‑‑‑They wanted to be more engaged in the care that is provided, yes.


Yes, thank you.  That's my cross (audio malfunction) at least.


JUSTICE ROSS:  Thank you, Mr Gibian.  Mr McKenna?

CROSS-EXAMINATION BY MR MCKENNA                                   [2.36 PM]


MR McKENNA:  Thank you, your Honour.  Mr Brockhaus, Mr Gibian took you to paragraph 52 and following, which in your evidence you set out essentially an outline of what you say occurs on a shift for a carer or an AIN, and being asked about those questions, about those paragraphs, you accepted that most days are quite dynamic, and I think you accepted the proposition that what you have in your evidence with respect to carers/AINs is – I think you said a guide as to what happen, something like that?‑‑‑Yes, correct.


At paragraph 78 and follows, you set out under the heading, 'RN and EN' - you set out an explanation of what you say happens starting a shift at 6.30 am for registered nurses and enrolled nurses.  Do you see that?‑‑‑Yes.  I see that, yes.


Can I take it that those paragraphs, 78 really all the way through to 104, should be read in the same way as paragraph 52 and following, and that's a guide as to what might happen during the day?‑‑‑Yes, absolutely, correct.

***        JOHANNES BROCKHAUS                                                                                                     XXN MR MCKENNA


And similarly with the duty statements that you provide for enrolled nurses and registered nurses, which are at I think JB8 to JB12, is it the case that those documents again provide guidelines as to the issues that might come up?‑‑‑Yes, correct.


We've had some evidence from another general manager of a facility in this case to the effect that incidents occur essentially every day that can throw a schedule out the window.  Would you agree with that?‑‑‑Yes, I would agree with that, yes.


Thank you.  If the Full Bench pleases, there's no further cross‑examination for the ANMF.


JUSTICE ROSS:  Thank you.  Mr Ward, re-examination?


MR WARD:  There's nothing in re-examination, your Honour.  If Mr Brockhaus could be excused?


JUSTICE ROSS:  Certainly.  Thank you for your evidence, Mr Brockhaus.  You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                             [2.39 PM]


JUSTICE ROSS:  I think that concludes the proceedings for the Full Bench, and I think - - -


MR WARD:  Sorry, your Honour.  There's one witness which isn't required for cross‑examination, but can I just identify their statement, because we seek to rely on it?


JUSTICE ROSS:  Sure, yes.


MR WARD:  It's the statement of Mr Shane Woolsey, W‑o‑o‑l‑s‑e‑y.  It's contained at tab 259 in the digital court book, 14351 to 14363.  It's a statement of 74 paragraphs dated 4 March, and the annexures, of which there are five, in the court book is 14364 to 14381 and we seek to rely on that.


JUSTICE ROSS:  Thank you, Mr Ward.

***        JOHANNES BROCKHAUS                                                                                                     XXN MR MCKENNA


MR WARD:  Thank you, your Honour.


JUSTICE ROSS:  I think that concludes the matters before the Full Bench, but O'Neill C wants to discuss some issues with some of the lay witness evidence, so Asbury DP and I will leave you, and the Full Bench will adjourn and be reconvening before O'Neill C.  Thank you.


MR WARD:  Thank you, your Honour.


COMMISSIONER O'NEILL:  I just want to deal with this issue of the – I think it's six HSU witnesses that haven't given evidence.  We spoke about this on Wednesday, and today the solicitors for the HSU have sent through an email.  I'm not sure if you've seen that, Mr Ward.


MR WARD:  I have, Commissioner.


COMMISSIONER O'NEILL:  All right.  So, look, as I understand it, on Wednesday at least, Mr Ward, you indicated that you objected to any suggestion that witnesses who were unable to be cross‑examined have their statements admitted but be dealt with on the question of weight.  In light of what's been put, do you maintain that objection in respect of all of the witnesses?


MR WARD:  Can I say this, Commissioner?  I'm happy to allow the statement of Adrian Shelley in, subject to arguments as to weight.  That person's a home care worker, and I think we've had such a bevy of home care workers' statements I don't see that one tilting the proceedings.  I am concerned about the others, because the others go to – they're cleaners, laundry assistants and property people, and to date there has only been limited evidence of cleaners, laundry and property people and, in fact, if this evidence is admitted it will be the bulk of the evidence, the cleaners, laundry and property people and, therefore, I will not have had a chance to cross-examine the bulk of the evidence in those classes.  So certainly for those we do, as a matter of fairness, press the objection but we do acknowledge that you have a broad discretion under section 590 and 591 of the Act, but we do press on grounds of fairness because of the class of persons involved to that objection.


COMMISSIONER O'NEILL:  Is there a halfway point perhaps where are there parts of – are you able to indicate, Mr Ward, which parts of those witness' statements that you would seek to challenge?


MR WARD:  Commissioner, I'm happy to do that.  I'm just not able to do that this afternoon.




MR WARD:  If you wish me to attend to that, I'm happy to attend to it but I'm just not in a position to do it today.


COMMISSIONER O'NEILL:  All right and, look, finally, Mr Ward, can also ask you in relation to the proposal to convene to deal with Ms Kelly's and Mr Barnes' evidence?  I can indicate that I'm amenable to that approach but there's very limited availability, so the options available would be at 2 pm on Friday 20 May or 12 pm on Monday, 23 May.


MR WARD:  Could I just have a short moment, Commissioner?


COMMISSIONER O'NEILL:  Yes.  Now, Mr Gibian, perhaps if you can check your availability.


MR GIBIAN:  I am available, well, at least sufficient of us are available on the 23rd and I'm content to go ahead on that date on that basis.  Obviously it may be that we would wish to make further inquiries with Ms Kelly and Mr Barnes when we're able to do so.




MR GIBIAN:  If we can have liberty to approach your chambers, Commissioner, if there is some difficulty that arises with that date.


COMMISSIONER O'NEILL:  I mean, I appreciate the circumstances that Mr White is in but I don't quite understand – well, it may be that he would be able to give evidence on that subsequent date.


MR GIBIAN:  Sorry, Ms Kelly, I think it is.  Well, I assume that Ms Kelly - - -




MR GIBIAN:  Sorry.


COMMISSIONER O'NEILL:  This is Andrew White.


MR GIBIAN:  Andrew White, sorry.


COMMISSIONER O'NEILL:  Who has experienced family issues and (indistinct).


MR GIBIAN:  Yes, we'll have to make inquiries about that.  We'll endeavour to see if that's – I assume Ms Kelly will be recovered by COVID by then with any luck, unless she has some other difficulty with the date that is immoveable.  Mr Barnes, we've had difficulty contacting in the manner we've described.  We assume we'll be able to resolve that by that time.  I can't promise anything but we assume we will.


COMMISSIONER O'NEILL:  Yes, maybe there's a cassowary attack kind of underway that's, you know, created some problems.


MR GIBIAN:  Let's hope not.


MR WARD:  When did you say on the 23rd?


COMMISSIONER O'NEILL:  On the 23rd at 12 pm.


MR WARD:  At this stage the only availability I've got on those days is after 3 on the 23rd but perhaps we could start on this basis, Commissioner, perhaps in relation to those two people you could give liberty to myself and Mr Gibian to see what we can sort out.  It might be that Ms Rafter can deal with them rather than me but if you could give us liberty to approach you - - -




MR WARD:  - - - before close of business this week that might be the best way to deal with those two.


COMMISSIONER O'NEILL:  All right and in relation to Ms Sharlia and Ms Solomons, I'm sure that you have or your instructors at least will have done their very best to explain that they are legally protected in relation to giving any evidence and that despite appearances neither Ms Rafter, nor Mr Ward, are particularly scary propositions and will be - - -


MR GIBIAN:  I've certainly explained that to them.


COMMISSIONER O'NEILL:  - - - respectful and – all right.  But if ultimately they can't get over their concerns then I do – I'm not inclined to admit - - -


MR GIBIAN:  I understand that position, Commissioner.  It's just a question as to whether, notwithstanding what efforts have been made along the lines that you've indicated, the Union feels that it's really appropriate to force them to give evidence if their reluctance is of that nature.


COMMISSIONER O'NEILL:  Of course.  Of course.  I'm content to leave it on that basis, that you have discussions, agree on what you can, consider any prospect of identifying parts of the other witness statements that have to be challenged, and advised my chambers by the end of tomorrow where you're up to and we'll deal with it from there.


MR GIBIAN:  Thank you.


MR McKENNA:  Commissioner, can I indicate from the ANMF's perspective we just seek to be included in those discussions.


COMMISSIONER O'NEILL:  Of course.  Well, you can pick up the phone.  I'm not going to coordinate that but you'll certainly be in the communications from our chambers.


MR WARD:  It may begin with offering to conciliate, I don't know.


COMMISSIONER O'NEILL:  I'll leave all of that to you unless there's anything else.  Thank you all and the Commission is adjourned.


MR WARD:  The Commission pleases.


MR GIBIAN:  Thank you.

ADJOURNED TO A DATE TO BE FIXED                                         [2.48 PM]



MARK WARWICK SEWELL, AFFIRMED................................................. PN12855

EXAMINATION-IN-CHIEF BY MR WARD................................................ PN12855

CROSS-EXAMINATION BY MR GIBIAN................................................... PN12879

THE WITNESS WITHDREW......................................................................... PN12883

MARK WARWICK SEWELL, RECALLED................................................ PN12883


THE WITNESS WITHDREW......................................................................... PN13082

MARK WARWICK SEWELL, RECALLED................................................ PN13084

CROSS-EXAMINATION BY MR HARTLEY.............................................. PN13084

RE-EXAMINATION BY MR WARD............................................................. PN13131

THE WITNESS WITHDREW......................................................................... PN13141

CRAIG JOHN SMITH, AFFIRMED.............................................................. PN13147

EXAMINATION-IN-CHIEF BY MR WARD................................................ PN13147

CROSS-EXAMINATION BY MR HARTLEY.............................................. PN13161

CROSS-EXAMINATION BY MR GIBIAN................................................... PN13263

RE-EXAMINATION BY MR WARD............................................................. PN13301

THE WITNESS WITHDREW......................................................................... PN13313

EMMA BROWN, AFFIRMED........................................................................ PN13319

EXAMINATION-IN-CHIEF BY MR WARD................................................ PN13319

CROSS-EXAMINATION BY MR MCKENNA............................................. PN13327

RE-EXAMINATION BY MR WARD............................................................. PN13491

THE WITNESS WITHDREW......................................................................... PN13504

SUSAN CUDMORE, AFFIRMED................................................................... PN13513

EXAMINATION-IN-CHIEF BY MR WARD................................................ PN13513

CROSS-EXAMINATION BY MR MCKENNA............................................. PN13524

CROSS-EXAMINATION BY MR GIBIAN................................................... PN13695

RE-EXAMINATION BY MR WARD............................................................. PN13746

THE WITNESS WITHDREW......................................................................... PN13750

JOHANNES BROCKHAUS, AFFIRMED..................................................... PN13755

EXAMINATION-IN-CHIEF BY MR WARD................................................ PN13755

CROSS-EXAMINATION BY MR GIBIAN................................................... PN13764

CROSS-EXAMINATION BY MR MCKENNA............................................. PN13888

THE WITNESS WITHDREW......................................................................... PN13897