The shape of the first day of the Perth hearings

A long day running from 9:35am (AWST) to 4:50pm (AWST) with a 15-minute recess and a one-hour break for lunch plus three brief adjournments.

After an acknowledgement of country by Commissioner Richard Tracey, the day kicked off with an opening address from the Commission’s new Senior Counsel Assisting Peter Rozen QC.

The Senior Counsel then introduced the first case study on 89-year-old Clarence Hausler and his treatment at Japara’s Mitcham aged care facility in South Australia in 2015.

A range of witnesses were then called including Mr Hausler’s daughter, Mitcham’s former facility manager, the facility’s Quality Manager and finally Japara’s now-retired Executive Director.

A busier day on the media front with the ABC sending its usual online and TV team. The West and the Attorney-General’s department were also present.

Read on for more.

Public submissions reach 4,500: Senior Counsel Assisting sets the scene for the Perth hearings

The Royal Commission has now received 4,564 submissions from the public, but they are still pushing for more with Senior Counsel Assisting Peter Rozen QC (pictured above) repeating the call for the community to submit their stories in a 50-minute opening address – his first for the Commission.

Mr Rozen reflected that 37% of the submissions received so far have focused on person-centred care – indicating its importance.

27% of submissions also focused on end of life care while independence, choice and control over care was raised in 33% of submissions.

Mr Rozen flagged the Commission will be calling 28 witnesses during the course of the week and will also reference five other statements from witnesses including the Aged Care Quality and Safety Commissioner Janet Anderson and two members of the Department of Health – as well as the Royal Commission’s fifth background paper released last week on advance care planning in Australia.

The Senior Counsel also revealed this week’s hearings would centre around two case studies – the first on person-centred care and the case of Noleen Hausler who placed a video camera on her late father Clarence Hausler’s room at Japara’s Mitcham aged care facility in September 2015 and the treatment of both Ms Hausler and her father by Japara that followed.

“Our aim is really to get behind the label ‘person-centred care’ and to explore models of care and approaches to care that genuinely provide quality of life for older people, show respect for the individual, respond to the needs of the whole person, and have regard to the importance of relationships that that individual has with their family, carers and community,” he said.

The second will be on palliative care and revolve around the experiences of Shannon Ruddock and her father Vincent Paranthoiene who passed away in 2017 at Calvary Hospital in Kogarah, NSW, after being a resident at Alkira Gardens aged care facility in the Sutherland Shire.

Noting that of the 160,000 Australians who die every year, 60,000 die in aged care facilities, Mr Rozen stated: “Evidence will be led about the extent to which people accessing aged care services are able to access palliative care and the quality of palliative care services available to people accessing aged care services.”

To make his point, Mr Rozen concluded with a quote from the late Senator Bernard (Barney) Cooney who made a submission to the Royal Commission about his life in residential aged care shortly before his death:

“The real values of a society as distinct from its stated claims, can be measured by the way in which its most vulnerable members, and that certainly includes those in aged care facilities, are treated. Not much empathy is needed to appreciate that it is hard to retain a sense of personal dignity when little by little individual autonomy is lost. Viewed against that standard, our failures are apparent.”

A clear signal of the direction for these hearings then.

Japara more concerned with “corporate interests” than honesty and integrity, Senior Counsel alleges

The Commission then moved to the first case study for these hearings: the case of 89-year-old Clarence Hausler, “an entirely defenseless man with severe dementia” who lived in a 38-bed aged care facility in Mitcham in Adelaide for 15 years from 2002 until his death on 1 January 2017.

In a brief 10-minute introduction, Senior Counsel Assisting Peter Rozen QC detailed how Japara had taken over the facility from the original management in 2014 and Mr Hausler’s daughter Noleen had become increasingly concerned about her father’s welfare by late August 2015.

Installing a hidden camera, Ms Hausler recorded her father allegedly being physically assaulted three times by two different carers over the course of 10 days. In one incident on 3 September, a female carer Kiranjeet Kaur was seen handling Mr Hausler roughly.

In another incident on 9 September 2015, Corey Lucas, a long-term employee, was filmed forcing a dessert spoon into Mr Hausler’s throat and covering his face with a napkin and twisting his nose with some force (pictured above) – an incident that was covered in this ABC story in 2016.

But instead of a “thorough investigation”, Mr Rozen stated that while Japara took some “positive steps”, its main response was “to attack the messenger”.

Mr Rozen revealed that in an email with a draft response to Ms Hauler’s written complaint about Ms Kaur on 2 September 2015, Japara’s Quality Manager had written to her superior Julie Reed, Japara’s Executive Director of Aged Care Services, asking her:

“Can you vet the response letter and give it the OK to go? I have dated it the 5th – so it looks like we thought about it seriously.”

Mr Rozen told the Commissioners that the Counsel Assisting team will submit that Japara “deliberately misled” Ms Hausler that her concerns were being taken seriously and only reported the allegation of an assault over two months later when Ms Hausler made a complaint to “external authorities”, supplying “incorrect information about when Japara became aware of the assault”.

The Senior Counsel stated the case study would examine why the 3 September incident was not reported; and how Japara responded to Ms Hausler’s concerns about her father; a complaint Ms Hausler made to the former Aged Care Complaints Commissioner (ACCC); and to Ms Hausler’s application to become her father’s guardian.

Mr Rozen finished by stating that his team will be putting forward that Japara did not adopt a person-centred-approach to Mr Hausler or his daughter.

“Japara did not live up to its stated and published values of honesty and integrity in either its dealings with Ms Hausler or its dealings with the regulator,” he said. “It was more concerned to look after its own corporate interests.”

The Counsel added that Mr Hausler’s assault was one of 298 mandatory reports made by Japara to the Department of Health between 1 September 2015 and May of this year, telling the Commissioners:

“One of the difficult tasks is for you to investigate and report not only the extent, not only on the extent of all forms of abuse in aged care facilities but on the causes of any systemic failures and any action that should be taken in response.”

Mr Rozen went on further to say future hearings will look at staff selection, training and supervision and the role of the regulator.

“They are likely to examine whether Japara is an isolated case or whether there are broader system-wide concerns about deliberate physical and sexual abuse of vulnerable elderly residents in our aged care system. Later hearings will also put the role of the aged care regulator under the microscope. What did it do with these 298 reports? Were they investigated and if so how? Did the regulator have sufficient resources to perform that vital task? Does it have sufficient resources now?”

Big questions – it was now to the Senior Counsel and his team to make their case, though not before Japara’s counsel Michael Borsky, a litigation and competition law specialist recognised as one of Australia’s best litigation lawyers, also presented himself to the Commissioners.

Dismissive, non-transparent and profit-driven: resident’s daughter captured carers physically assaulting father with hidden camera – but Japara director more worried about media reaction

59-year-old Noleen Hausler (pictured above), a Registered Nurse and midwife, has detailed to the Commission how concerns about her father Clarence Hausler’s care led her to place a hidden camera in his room – but says the facility was more concerned with whether the footage would be seen by the media.

Over 90 minutes, the RN explained that her father had first been diagnosed with dementia in 1991.

After the sudden death of her mother, who had acted as his carer, Mr Hausler moved into residential care, first in Barmera in country South Australia near where he had lived and then in 2002 to the Mitcham facility to be closer to Ms Hausler, who was his primary carer.

Ms Hausler told Senior Counsel Assisting Peter Rozen QC that she had initially been happy with her father’s care, but in August 2014, Japara had taken over the facility and she saw a change in staff as some left and more agency staff came in.

She also became unhappy with the clinical care Mr Hausler was receiving, citing a pressure sore, chronic toenail infection and unexplained bruising as well as a change in his demeanour including avoiding eye contact (Mr Hausler was mostly non-verbal), tears in his eyes, and a lack of interest when she spoke to him.

Becoming further suspicious about a male employee who seemed to start avoiding her, Ms Hausler told the Commissioners she placed the camera in her father’s room for 10 days.

Mr Rozen then played three clips – from 31 August, 1 September and 9 September 2015 – from the video, preceded by a warning from Commissioner Richard Tracey to the court and webcast viewers that the footage was “very confronting”.

Ms Hausler stated that she did not make a complaint regarding the first clip – which showed Japara employee Corey Lucas treating her father roughly – but did lodge a complaint about the second incident (pictured above) which showed an agency nurse Kiranjeet Kaur not positioning Mr Hausler correctly to feed him because Ms Hausler believed Ms Kaur had put him at risk of aspiration.

Ms Hausler said she only received a written response dated 5 September a few days later and could not recall a conversation with anyone at the facility in the interim – a contradiction to the statement of Julie Reed, Japara’s now-retired Executive Director, Mr Rozen noted.

Mr Hausler added that while she still had a good relationship with the facility manager Rachael Musico, relations with other staff including the facility’s Quality Manager Diane Jones had then “become a little bit strained”.

Mr Rozen then questioned Ms Hausler about the third incident on 9 September 2015 in which Mr Lucas was filmed assaulting her father – an act he was later convicted of and jailed for.

Breaking down at times, Ms Hausler said she had taken the footage to the police who had then shown it to staff at the facility including Ms Reed, Ms Musico, an acting clinical nurse and a different quality manager.

“She [Ms Reed] was horrified to see what she saw. She said that this shouldn’t have happened. She stated that she was concerned and asked the detectives whether this would go to the media, along those lines,” she said.

Ms Hauler stated that Ms Reed then put in place four measures to protect her father, including Mr Lucas not being allowed back to the facility; her father to be moved to a visible area and handled by two staff at all times; and for him to be examined by a GP for injuries.

Japara also offered Ms Hausler counselling sessions – but she told the Commissioners that the counsellor seemed “disengaged” after their second meeting and she had ended up organising alternative counselling.

Ms Hausler also began spending more time at the facility with her father but her relationship with the staff became “very fractured” because management had not informed them why Mr Lucas had left the facility – with staff labelling her “the smiling assassin”.

“I believe that there was a finger pointed at me because I had actually got Corey sacked and they didn’t know why,” she said.

Ms Hausler said the continuing “resistance” between herself and management led her to contact the Aged Rights Advocacy Service (ARAS) who had a representative sometimes accompany her to a series of regular meetings with Ms Musico, Ms Jones and other staff to help rebuild the relationship with the facility.

But in an email dated 9 November 2015, Ms Reed warned Ms Hausler – who wanted to place a camera back in her father’s room – that the use of a hidden camera contravened multiple acts including the Aged Care Act 1997 and the Occupational Health and Safety Act.

Another letter dated 9 December 2015 from Ms Reed also warned Ms Hausler that stalking is “an offence that carries serious penalties”.

And when Ms Hausler made an application to the South Australia Civil and Administrative Tribunal (SACAT) in early 2016 to become her father’s guardian so she could take her complaints to the former Aged Care Complaints Commissioner (ACCC) further, Ms Jones and a Japara legal representative also attended the hearing – which rejected the application.

Mr Hausler eventually passed away on 1 January 2017 – and Ms Hausler says the family cared for him in his last 10 days with “little assistance” from staff.

Asked by Mr Rozen to read out her final message to the Royal Commission, Ms Hausler stated: “I believe that my father’s quality of life suffered as a direct result of management’s culture at Mitcham of risk aversion, dismissive and nontransparent with a profit driven attitude.”

“If a lesson can be learned, it is that resident centred care means everyone's voice must be heard and respected. Regardless of being verbal, nonverbal, advocated evidenced or witnessed, there must – they must be given an opportunity to be heard and they must be listened to.”

Interestingly, Ms Hausler now works as the Business Development Manager for Care Protect in SA as of 1 May 2019 – the UK company commissioned to conduct Australia’s first trial of CCTV in aged care residents’ rooms – though she notes “my comments or views are not that of my employer”.

Former Mitcham facility manager denies supplying wrong information on assault allegation to Department of Health – Commissioner Tracey gives witness a serve

Counsel Assisting Eliza Bergin then took over the questioning of Mitcham’s former facility manager Rachael Musico (pictured above), who conceded she had not included the incident involving Kiranjeet Kaur’s rough handling of Mr Hausler in her monthly reports from either September or October 2015.

Over 30 minutes of questioning, Ms Musico – who has 15 years’ experience in aged care and had started at the facility on 8 September 2015, a week after the incident – also agreed it was only included in the November report because the Aged Care Complaints Commissioner’s SA office contacted the facility and informed Ms Musico that a mandatory report to the Department of Health was required.

In a tense exchange with Ms Bergin, Ms Musico denied however that the report on the 1 September 2015 incident – which was dated 26 November 2015 – was incorrectly completed.

“Therefore, the information you supplied to the department was incorrect, wasn’t it?” Ms Bergin alleged.

“I don’t believe it was incorrect because the 26th was the date that we were informed to report it and the incident report and the information related to the date, the 1st of September.”

“You put incorrect information in the report,” Ms Bergin persisted.

“I don't believe it was incorrect information,” Ms Musico replied.

“If Noleen Hausler had not made a complaint to the Aged Care Complaints Commissioner on 5 November 2015, Japara would never have reported the … incident at all, would they?” Ms Bergin concluded.

“I’m not sure,” Ms Musico said.

“The Aged Care Complaints Commissioner then found that the facility should have made a report at the time Noleen Hausler reported it,” Ms Bergin followed up. “Do you agree with that?”

“I wasn’t there at the time to understand the investigation,” Ms Musico answered.

Ms Bergin also quizzed the former facility manager on another incident involving Mr Hausler towards the end of his life on 11 December 2016 in which he needed an IV cannula to administer fluid because he was dehydrated.

The Registered Nurse called Ms Musico because she couldn’t find the number for the extended care paramedic in the book of essential phone numbers kept at the nurses’ station – a delay which Ms Hausler later complained about to the former Aged Care Complaints Commissioner.

Ms Musico said that she had not checked the book for the number which caught the attention – and ire – of Commissioner Richard Tracey (pictured above left).

“When you had that communication, did you yourself then consult the institution’s records with a view to seeing if the relevant number was there?” he enquired.

“Yes. Do I recall that above the telephone in the nurses’ station is the emergency phone numbers and things like that as well as in the book? I think when we updated it, we just made it clearer so there was no misunderstanding for the nursing staff to know that …” Ms Musico hesitated.

“You’re not answering my question, Ms Musico,” the Commissioner stated bluntly. “Did you look up the records as they stood at the time that you were being asked by the nursing staff what the number was?”

“Sorry, I’m ... I’m not quite getting …” Ms Musico stammered.

“Well, you get a phone call from the nursing staff who say they can’t find the emergency services number; is that right?” Commissioner Tracey continued.

“Yes,” Ms Musico agreed.

“And what I’m asking you is when you received that query, did you consult the Mitcham records that – with a view to finding out whether the relevant number was there?” he asked.

“Not that I could recall,” Ms Musico replied.

“Why wouldn’t you do that?” Commissioner Tracey followed up.

“Because I understand that the emergency numbers were located by the phone and I had a discussion with the nurse that was on that night to make sure she was aware what the number was,” Ms Musico explained.

“How did you know what number to tell her?” he asked.

“Because I knew the extended care paramedics could be contacted by 000 the balance service,” Ms Musico elaborated.

“You made no attempt yourself to find out what was the state of the records that the nurses had consulted without avail?” Commissioner Tracey questioned, clearly unimpressed.

“I can’t recall directly what else I did at that time,” she said, and with that, the witness was excused.

“No one is safe from this woman”: Japara Quality Manager defends signing off on report two-and-a-half months after incident – and Commissioner Briggs criticises witness for not speaking up

Senior Counsel Assisting Peter Rozen QC then returned to question the next witness, Diane Jones (pictured above right), a Registered Nurse since 1980 who has acted as Quality Manager for five Japara facilities since 2015.

Giving evidence via video link from Adelaide for just over an hour, Ms Jones also defended signing off on the report on the incident involving Kiranjeet Kaur and Mr Hausler to the Department of Health on 26 November 2015 when it had occurred on 1 September 2015.

“Look, I’m not saying that the way we filled this out, it doesn’t seem logical now, but at the time it seemed logical to us that we were reporting the day that we found out about this us that we were reporting the day that we found out about this compulsory report. We also know – we also state that the incident happened on 2 September on the same form,” she told Mr Rozen.

“I see that and in fairness to you, you attached a copy of the complaint, did you not?” he queried.

“Yes,” Ms Jones stated.

“But without wanting to labour the point, the date, 26 November 2015, was not the date that the approved provider became aware of the incident, was it?” Mr Rozen pressed.

“If you follow the logic that we were using, the incident that we were discussing was the fact that it was a compulsory report we became aware of on the 26th and that is the day that Rachael Musico notified head office of that incident,” Ms Jones explained further.

Ms Jones did agree with Mr Rozen’s assessment that Ms Reed’s letters to Ms Hausler dated 9 November 2015 and 9 December 2015 would not have helped in rebuilding the relationship with Ms Hausler – and that it would have been better for staff to have been informed of the reason for Mr Lucas’ dismissal.

The Manager also gave evidence that she attended the SACAT hearing for Ms Hausler’s guardianship application for her father at the request of Ms Reed and had looked up Mr Hausler’s notes as evidenced by an email trail between the two – but rejected that she had any impact on the meeting, leading to an aggressive exchange of words.

“She was asking you to find some evidence that would support her quest to undermine Noleen’s application for guardianship, that’s the gist of it, isn’t it?” Mr Rozen stated.

“There’s how it looks, yes,” Ms Jones said.

“It’s how it is, isn’t it, Ms Jones,” the Senior Counsel pushed.

“I don’t know,” Ms Jones said.

“I suggest you do know and the reason you said that’s how it looks is because that’s how it is and that’s how it was, do you agree?” he added.

“I can’t speak for Julie Reed,” Ms Jones stated, clearly frustrated.

But perhaps the most damning evidence was the string of emails produced by the Senior Counsel from February 2016 in which Ms Reed emailed Ms Jones to tell her that Ms Hausler had reported Mr Hausler’s podiatrist to the Health Complaints Commission regarding her father’s toenail infection.

“And your reply came back very quickly. Do you see that in the middle of the page, some few minutes after that?” Mr Rozen asked.

“I do,” Ms Jones agreed.

“Same day,” he said.

“I do, yes,” Ms Jones repeated.

“And you wrote: **Good grief, I felt a moment of sympathy for her. No one is safe from this woman. Do you see that?” Mr Rozen read out, adding: “That’s a very unfortunate thing to have written in an email, Ms Jones.”

“It probably ... it was a very stressful time and Rachael and I would talk to each other to vent and I guess that was just a moment of venting,” Ms Jones tried to explain.

“Yes,” Mr Rozen said.

“No malice in there,” Ms Jones added.

“And Rachael’s response is at the top of the page, my thoughts, exactly, exclamation mark, exclamation mark, watching my back, do you see that?” Mr Rozen continued.

“Yes,” Ms Jones said.

“More venting,” he surmised. “It’s not in the interests of Noleen Hausler and her father had had been assaulted several times, is it?”

“No, I guess everyone says things that they regret at times,” Ms Jones agreed.

Commissioner Lynelle Briggs clearly felt that Ms Jones should have raised the red flag.

“Ms Jones, it’s generally the case that when new people come in to work in an organisation, they can have quite a significant impact on that organisation. You and Ms Musico were both very new to the organisation at the time, at least the first incident and then the second one occurred. Why is it that you so quickly fell into line with the predomestic entrant approach of the organisation and didn’t flag that there were, in fact, serious problems here that needed to be addressed?” she asked.

“We were .... to address those problems on the floor at the fault by communicating with Noleen and trying to address any concerns that she might have,” Ms Jones said, looking slightly caught off-guard. “I don’t think I fell into line with any kind of poor culture or – we were trying to address issues as at – at the facility with Noleen.”

“How effective were the feedback loops available to staff within the organisation to initiate changes and quality improvements?” Commissioner Briggs fired back.

“I can’t tell you exactly how effective they were,” Ms Jones replied. “I guess some, in some areas they were more effective than others. Staff certainly had the opportunity to give feedback. We had – we had written processes .... suggestions or made complaints and the facility had staff meetings quite regularly where staff could talk to the managers and offer suggestions or give feedback. I guess things can always improve but I do think those processes were in place.”

Commissioner Briggs wasn’t done yet though. “How effective were the processes around whistleblower behaviour?” she questioned.

“I’m not aware of any concerns where any whistleblower had any negative impact,” Ms Jones said.

“Is it the case that you were largely instructed what to do and then complied with those instructions, rather than taking more seriously the responsibilities of your position?” the Commissioner stated bluntly.

“I did follow directions but I wouldn’t follow a direction that I knew was a breach of legislation or would put residents at risk,” Ms Jones replied.

It’s also worth noting the Quality Manager couldn’t recall if police had attended the facility on 27 November 2015 when the report was made – prompting Mr Rozen to issue a call to Japara for the facility’s compulsory report register.

A reminder that the Commission can – and will – compel providers to produce evidence at any time.

Julie Reed also provided 50 minutes of evidence to the Commission, but with Mr Rozen flagging another 20 minutes of questioning for Tuesday, we will cover her evidence in tomorrow’s issue.

Tuesday’s agenda:

Julie Reed – retired Executive Director, Japara (conclusion of evidence from Day 1)

Andrew Sudholz – CEO and Managing Director, Japara

Jason Burton – Head of Dementia Practice and Innovation, Alzheimer’s WA

EA – direct evidence

Chris Mamarelis – CEO, Whiddon Group

Kevin Chester – direct evidence

Carolyn Jubb – leisure and lifestyle care worker, Whiddon Group

Bryan Lipmann AM – CEO, Wintringham

Kate Rice – Facility Manager, Wintringham

Anthony O’Donnell – direct evidence