In a first-of-its-kind outcome, a Queensland aged care provider has succeeded in having the Department of Social Services’ decision to impose sanctions at one of its facilities overturned and expunged from the public record.
CEO Jon Campbell said the decision supported the organisation’s view that the facts did not support the sanction for alleged serious risk.
Carinity’s Karinya Aged Care facility in Laidley, Queensland was sanctioned on 28 February following weeks of concurrent audits by the Australian Aged Care Quality Agency at eight of Carinity’s nine facilities.
The company-wide investigation was announced by Assistant Minister for Social Services Mitch Fifield on 16 February following an earlier complaint at Carinity’s Kepnock Grove facility and a series of articles published in The Australian newspaper alleging abuse and cover-up.
The sanctions on Karinya Aged Care were lifted 10 days after they were imposed. Carinity soon after requested the decision to sanction be reviewed and on 15 May announced it had commenced Federal Court proceedings seeking urgent judicial review of the serious-risk finding.
The department notified Carinity on 24 June of its decision to overturn the sanctions.
DSS confirmed to Australian Ageing Agenda that this was the first time it had set aside a decision to impose sanctions.
Despite this unprecedented move to reverse a sanction decision and expunge it from the record, the department maintained that imposing sanctions on Karinya Aged Care facility was the right decision at the time.
“The decision … was based on the information available at the time and was an appropriate response to protect the home’s residents at that time,” a department spokesperson said.
“Subsequent information that was available to the reconsideration delegate informed the decision to set aside the sanctions, whilst still acknowledging that the provider did not meet all of the expected outcomes.”
The nine outcomes out of 44 not met under the Accreditation Standards, and the subsequent notice of non-compliance, remain on the record and clearly show there was non-compliance at the home, the spokesperson said.
‘Demonstration of effective framework’
Despite this, the department said the turnaround on the sanction was a clear demonstration of an effective regulatory framework. “The provider was able to obtain procedural fairness through the review mechanisms that enable providers to seek a review of the Department’s actions to impose a sanction.”
Echoing this, Senator Fifield told AAA that “the process includes a review mechanism that allows subsequent information to be considered, and this process led to the department setting aside the sanction.”
However, Mr Campbell said the process had caused major distress to residents and staff, reputational damage to the organisation, and significant financial cost.
“We are pleased that the department has seen fit to overturn the sanction because we stated from the outset that we believed that the facts were wrong,” Mr Campbell told AAA.
Carinity would review whether or not it would take any further action, he said.
“It is always difficult for the regulator when allegations are made and particularly allegations reported widely in a national newspaper. But I do think there are some issues that need to be considered in relation to the audit that was done and the calling of serious risk at Karinya because we were aware very early on before the sanction was published that the facts didn’t support the calling of a sanction,” Mr Campbell said.
According to the DSS website, Carinity still has two outstanding non-compliance notices, one each at the Kepnock Grove and Colthup facilities.
Mr Campbell said his organisation had been verbally told that all of their sites have been recommended as fully compliant.
“We expect that we will be getting notification fairly soon that they are both fully compliant and those notices should be removed from the DSS website,” he told AAA.
On Friday the DSS website stated that notice of non-compliance information was up to date as of 17 June 2015.