Names have been removed to protect privacy. Identifying letters are assigned in alphabetical order and bear no relationship to the person's actual name.
The former Commissioner received a complaint from Mr A, the consumer, through his lawyer, Mr B, about treatment Mr A received at the Retirement Centre.
The complaint is that:
- On 5 February 1997, [Mr C, proprietor of the Retirement Centre] accepted [Mr A] to [the Retirement Centre] without [Mr A's] consent and without any proper assessment or referral.
- At [the Retirement Centre], on or about 5 February 1997, medical treatment was administered to [Mr A] without reference to either his general practitioner or previous medical history. Treatment was administered without [Mr A's] informed consent.
- [Mr C] exerted pressure on [Mr A] to pay for services that he had never consented to nor required.
The complaint was received by the former Commissioner on 1 October 1997 and an investigation was undertaken.
Information was obtained from:
Mr A Consumer
Mr C Proprietor of the Retirement Centre
Mrs D Provider / Matron at the Retirement Centre
Mr E Minister / friend of Mr A
Mrs F Minister's wife / friend of Mr A
Mrs G Consumer's daughter
Dr H General Practitioner
Mr I Pharmacist
Dr J General Practitioner
Dr K General General Practitioner
Relevant rest home records were requested and reviewed, and a number of face-to-face interviews were conducted.
Details of investigation process
1. The former Commissioner received Mr A's complaint on 1 October 1997.
2. Following receipt of Mr A's complaint, the following administrative actions were carried out, prior to formal commencement of an investigation:
- Mr A's complaint was assigned to one of the Commissioner's investigation officers.
- A letter was sent to Mr A acknowledging his complaint.
- The investigation officer contacted the Regional Licensing Authority at the Ministry of Health, regarding the Retirement Centre's licensing details.
- The investigation officer spoke to Mr A about his complaint.
3. On 12 February 1998, the former Commissioner notified the Retirement Centre that she had received a complaint from Mr A. The notification letter outlined the details of Mr A's complaint, advised of the Commissioner's decision to investigate the complaint to enable her to form an opinion on whether there had been a breach of the Code, and invited the Retirement Centre to respond.
4. As part of the investigation, interviews with the following individuals were arranged and conducted by one of the Commissioner's investigation officers:
- Mr A - 30 April 1998
- Mr E (who was present on the day that Mr A was admitted to the Retirement Centre) and Mrs F - 5 May 1998
- Mr C and Mrs D - 27 May 1998.
5. Between October 1998 and March 1999 additional information was obtained from:
- Dr H (whom Mr A consulted four days prior to his admission to the Retirement Centre)
- Dr K (who prescribed sedation medication for Mr A during his stay at the Retirement Centre)
- Dr J (who paid a personal visit to Mr A during his stay at the Retirement Centre)
- Mrs G (Mr A's daughter)
- Mr C and Mrs D
- The Companies Office.
6. On 18 October 1999, the former Commissioner sent the Retirement Centre a copy of her provisional opinion ("the first provisional opinion"). The Commissioner advised in a covering letter that she had completed her investigation and noted: " ... this is your opportunity to clarify or dispute any of the information gathered as a result of my investigation". The Retirement Centre's solicitors responded by letter dated 29 October 1999 seeking more time to respond.
7. On 24 November 1999, having received two extensions of the time within which to respond, the Retirement Centre's solicitors provided detailed written submissions on the first provisional opinion. In the covering letter enclosing the submissions, the Retirement Centre's solicitors advised of the possibility of judicial review proceedings being initiated, on the grounds referred to in the submissions, if the former Commissioner finalised her opinion in terms similar to those in the first provisional opinion.
8. The former Commissioner acknowledged receipt of the Retirement Centre's solicitor's submissions by letter dated 3 December 1999. By letter dated 21 December 1999 the Retirement Centre's solicitors wrote again noting (correctly) that the Retirement Centre's admission forms had been requested and provided to the investigation officer. The letter again warned of possible judicial review.
9. On 22 December 1999, the former Commissioner sent a further letter to the Retirement Centre's solicitors, advising that she was still in the process of considering the submissions. The letter also sought to clarify a misunderstanding about the Commissioner's functions and the investigation procedure. In light of the comments made in the letter, the former Commissioner extended the date for the plaintiffs to respond to the first provisional opinion until 18 January 2000.
10. On 17 February 2000, the former Commissioner sent her final opinion on Mr A's complaint to the Retirement Centre's solicitors. A covering letter advised the Retirement Centre's solicitors of their clients' right under section 67(b) of the Act to have their response appended to the final opinion.
11. On 1 March 2000, the Retirement Centre's solicitors advised the former Commissioner that they had been instructed to initiate judicial review proceedings.
12. Following notice of the threatened proceedings, attempts were made to settle the matter.
13. The current Commissioner assumed office on 4 March 2000.
14. Following an exchange of correspondence during March 2000, by letter dated 26 April 2000, the Retirement Centre's solicitors advised that the former Commissioner's final opinion was "significantly flawed" and that they had been instructed to seek judicial review of it.
15. In light of the continued allegations of procedural unfairness, the current Commissioner notified the Retirement Centre's solicitors that he had reopened the investigation of Mr A's complaint.
16. A fresh and thorough review of Mr A's complaint and its investigation was undertaken. The current Commissioner allocated a Senior Legal Advisor (who had had no previous involvement in the matter) the task of reviewing all the information gathered during the investigation and preparing a draft second provisional opinion.
17. A draft second provisional opinion was presented to the current Commissioner for his consideration in or around the end of June 2000. The draft was reviewed and, following discussion, the Senior Legal Advisor was instructed to make a number of changes to the draft.
18. On 6 July 2000, the current Commissioner's provisional opinion (the second provisional opinion) was sent to the Retirement Centre's solicitors, with a covering letter addressed to Mr C. Mr C was invited to make any comments on the second provisional opinion, and offered the opportunity to "clarify or dispute" any of the information gathered during the investigation and the preliminary conclusions drawn on the basis of that information. Mr C was advised that if he had not responded by 21 July 2000, it would be assumed that he did not wish to comment and the current Commissioner would finalise his opinion accordingly.
19. By letter dated 20 July 2000, the Retirement Centre's solicitors advised that they had been instructed to apply for judicial review of the proposed distribution of the current Commissioner's final report to the Health Funding Authority and the Ministry of Health Licensing.
20. Judicial review proceedings were heard in the High Court at Auckland in May 2001, before Justice Glazebrook. The plaintiff challenged the Commissioner's second provisional opinion on the grounds of:
a. breach of natural justice
b. failure to take into account relevant considerations
c. taking into account irrelevant considerations
d. predetermination and bias.
21. Justice Glazebrook delivered her judgment on 25 June 2001, and dismissed all the grounds of the application for judicial review. The judge recommended that the current Commissioner prepare a third provisional opinion to remedy any minor irregularities in the earlier opinion.
22. In July 2001 the Retirement Centre's solicitors filed an appeal against the whole of Justice Glazebrook's judgment and the order for costs in favour of the Commissioner.
23. In January 2002, the Retirement Centre's solicitors advised that the Retirement Centre was not going to proceed with its appeal on the substantive issues. The appeal lapsed in January 2002. The Retirement Centre, however, pursued an appeal against the costs awarded against it and that appeal was dismissed by the Court of Appeal on 24 April 2002.
24. On 25 February 2002, in accordance with the recommendations of Justice Glazebrook, a third provisional opinion was prepared and sent to the Retirement Centre's solicitors providing an opportunity to comment on it by 15 March 2002.
25. On 12 March 2002 the Commissioner received a letter from the Retirement Centre's solicitors objecting to the Commissioner seeking to impose a unilateral time limit for reply. The letter also requested that the Retirement Centre be afforded access to the original material available to the Commissioner and invoked the Official Information Act.
26. On 30 April 2002, the Commissioner provided the Retirement Centre's solicitors with copies of the documents requested. The Retirement Centre's solicitors were asked to provide a response to the third provisional opinion within 21 days of receipt of the documents. The Retirement Centre's solicitors confirmed that they received the documents on 1 May 2002.
27. On 29 May 2002, the Retirement Centre's solicitors provided the Commissioner with an 18 page submission in response to the third provisional opinion ("the submissions"). This final opinion has been prepared taking into account the submissions.
28. The submissions made some preliminary observations. The Retirement Centre commented on the delay from the time Mr A was admitted to the Retirement Centre and the time the Commissioner was notified of Mr A's complaint. The Retirement Centre also complained about the delays with the Commissioner's investigation process. It is correct there was a seven month delay between the events in issue and the complaint from Mr A, a similar delay until the interviews were conducted, and a further delay until the former Commissioner released her provisional opinion. In my opinion, these delays have not prevented the Retirement Centre from being fairly heard. Furthermore, that complaint was not made when it could have been in the judicial review proceedings. Justice Glazebrook acknowledged the delay but recommended further procedural steps, which I have undertaken, to ensure fairness to the Retirement Centre.
29. Inordinate delays have resulted from the conduct of the Retirement Centre. Despite being offered a second natural justice opportunity on 6 July 2000, the Retirement Centre decided to bring judicial review proceedings in the High Court. The Commissioner agreed not to resolve the matter until the High Court judgment was released. The Retirement Centre then lodged an appeal. After the appeal lapsed in January 2002, the Commissioner prepared the third provisional opinion and sent it to the Retirement Centre's solicitors on 25 February 2002.
30. The Retirement Centre also complained that original investigation material was only disclosed by the Commissioner to the Retirement Centre as of 1 May 2002. The Retirement Centre's solicitors waited until 12 March 2002, three days prior to the expiry of the three week submission period allowed in respect of the third provisional opinion before even raising the question of access to information. This is notwithstanding that, from the outset, the Retirement Centre has been entitled to request information under the Official Information Act. Further, the Retirement Centre could have obtained virtually all documents on the Commissioner's file (except legally privileged ones) in accordance with Court discovery procedures during the litigation it commenced, but no application for discovery was made.
31. It is not the Commissioner's usual practice to release information to providers who are the subject of an investigation, until the matter is finalised. Nor was it required to be released by Justice Glazebrook. Relevant information from the total information gathered during the investigation is included in the provisional opinion, and parties have the opportunity to respond to this. The parties have the opportunity to clarify and challenge the information gathered and narrative compiled by the Commissioner. However, in this case, the Commissioner provided the material (except legally privileged material) to avoid any further delays in the resolution of Mr A's complaint.
32. In short, although the Retirement Centre was represented by solicitors throughout, no request was made for the investigation material until after the judgment of Justice Glazebrook, and release of the third provisional opinion.
33. The Retirement Centre's solicitors submitted that the third provisional opinion omits relevant information. There was an unfortunate family background to Mr A's arrival at the Retirement Centre. The Commissioner has been very careful to exclude irrelevant background information from his consideration of the Retirement Centre's actions.
34. The Retirement Centre also made various complaints about the first and second provisional opinions, but these were all open to be raised in the judicial review proceedings in the High Court. In any event, a third provisional opinion has been provided, which has remedied any concerns about the earlier provisional opinions.
35. The Retirement Centre's solicitors' submissions then dealt with the content of the third provisional opinion. The Commissioner has taken account of all the Retirement Centre's submissions and made reference to them, where appropriate, in the following sections of this opinion.
36. In accordance with the recommendations of Justice Glazebrook, a draft final opinion was prepared and sent to the Retirement Centre's solicitors on 14 June 2002 for final comment by 28 June 2002. The Retirement Centre was offered the opportunity to prepare a short statement to be appended to the final opinion.
37. On 28 June 2002, the Retirement Centre's solicitors provided the Commissioner with the Retirement Centre's statement and requested that it be appended to the final report unamended. As requested, the Retirement Centre's statement is attached unamended as an appendix to this report. The statement sets out the Retirement Centre's version of events and that the Retirement Centre does not accept the findings and conclusions made by the Commissioner, nor the process by which they have been derived.
38. The Commissioner has gone to some lengths to ensure that a fair, credible and just result has been reached. It is unfortunate that the Retirement Centre continues to have a sense of grievance about the process and outcome of this investigation.
Information gathered during investigation
Mr A said that, on 5 February 1997, he was forcibly taken by family members to the Retirement Centre where he was admitted without his informed consent.
Mr A and Mrs L were married for almost 20 years and it was a second marriage for them both. They lived in a house belonging to the estate of Mrs L's late husband, Mr M. Mrs L had a life interest in this house.
Mrs L had been ill for some time and eventually died at home on Thursday, 30 January 1997. During the investigation Mr A explained that he was in a tired and distressed state after caring for his wife.
On Saturday 1 February 1997, Mrs G, Mr A's daughter from his first marriage, and her husband Mr N, Mrs L's son from her first marriage, took Mr A to the Medical Centre, where he consulted with Dr H. Mr A said Dr H told him there was nothing medically wrong with him and prescribed some sleeping pills to help him sleep. Dr H's consultation note of 1 February 1997 recorded:
"Wife died, family upsets, brought in by daughter, not sleeping agitated and became aggressive this am. Also constipated. Discussed. Family to talk things through."
Dr H prescribed the sedative lorazepam, and Duphalac syrup. In a letter to the Commissioner of 18 July 1997, Dr H stated:
"This is to certify that the above Mr A was brought to see me by his daughter on 1 February 1997. At the time he was agitated over the recent death of his wife and was also constipated. I treated him accordingly and the family were to talk things through."
Mrs L's funeral took place on Monday 3 February 1997.
Initial contact by Mrs G to the Retirement Centre
On about Saturday 1 February 1997, Mrs G contacted Mrs D at the Retirement Centre and made enquiries about the services available and their cost. Mrs G told Mrs D that Mr A needed short term accommodation as he had no place to stay. Mrs D discussed 'respite care' with Mrs G. Mrs D asked if there was a full time carer for Mr A. Mrs G said that Mr A's wife had just died and that he had been the lead caregiver.
The Retirement Centre advised the Commissioner in its letter of 18 February 1998:
"The family of [Mr A] contacted [the Retirement Centre] on the weekend following the death of [Mrs L]. There concern was that [Mr A] was very distressed, had physically threatened a family member, had already damaged and had further threatened to burn the family house down. He was also threatening to commit suicide.
[The Retirement Centre] had been selected because of its reputation for quality care and qualified staff. The initial inquiry centred around the family concern from previous experience with [Mr A] that he possibly would carry out his threats as soon as he was left alone once the family left following the funeral of [Mrs L]. The family were seeking two weeks 'Respite Care'. They raised the subject of Fees and it was explained that his situation would not qualify him for 'Carer Support'. They booked him for a week (with a view to longer) from Wednesday 5 February and [the Retirement Centre] was assured of payment of Fees by the family should [Mr A] not have ready access to his own money."
On about Tuesday 4 February 1997, Mrs G contacted Mrs D again and confirmed that Mr A would be coming the next day. Mrs G mentioned that Mr C might know Mr A from his association with the [Church] in the [ ... ] area.
Later that day, Mr C had a follow-up conversation with Mrs G and acknowledged that he knew Mr A quite well. Mr C asked Mrs G to reassure Mr A that he would personally assist in any way he could. Mr C stated:
"Without elaborating I did acknowledge that through my relationship with [Mr A and Mrs L] I had gained some perspective of [Mr A's] perceived family history of difficulties. We did not elaborate further. [Mrs G] conveyed that she perceived that [Mr A] would take comfort from my presence."
Having considered all the evidence, I am satisfied that Mr C and Mrs D were aware that Mr A could care for himself and that he was being pressured to leave his home by the family of his deceased wife. Mrs G was seeking somewhere that Mr A could stay so that he could re-orient himself. Mrs G had selected the Retirement Centre by reputation. The Retirement Centre has a reputation for good 24-hour care and for taking difficult clients.
Transportation of Mr A to the Retirement Centre
Mr E, a [minister], and Mrs F are friends of Mr A. Mrs F stated that on Tuesday 4 February 1997 she was contacted by Mrs G, who asked whether she and her husband could be present when she told her father he was to go to a rest home for a break to restore his equilibrium. At approximately 2.00pm on Wednesday, 5 February 1997 Mr E and Mrs F arrived at the family home. Mr A was in his bedroom resting. Mr E and Mrs F had a lengthy discussion with Mr A's family about Mr A's situation.
Mr A said he was tired and distressed about the death of his wife and the circumstances surrounding the death of his cat that weekend. Mr A explained that he was resting on his bed in the afternoon of Wednesday, 5 February 1997 when members of his late wife's family came in and told him he was going for a drive. Mr A said he refused and was forcibly removed from the bedroom and taken to a car.
Mr E, Mrs G, Mr N and Mr O accompanied Mr A in the car to the Retirement Centre. Mr E commented that on the trip to the Retirement Centre, Mr A was "not with it" and that he was in a "distressed state".
There is no evidence to suggest that Mr C was aware of the alleged circumstances surrounding Mr A's transportation to the Retirement Centre.
Arrival at the Retirement Centre
I have received conflicting evidence concerning the events surrounding Mr A's arrival at the Retirement Centre.
Mr A stated that when he arrived at the Retirement Centre Mr C came out to the car and eventually he was taken to a room and given a sedative. Mr A stated:
"They [the family] never said anything about where they were taking me. We arrived at a rest home in [ ... ]. I was exhausted. As I was getting out of the car I heard [Mr C], the rest home proprietor say to [Mrs D] 'I know [Mr A] from when I was in [ ... ]. I will do everything to help him.' After that I was taken to a room and given a sedative. I don't remember anything much after that until the next morning."
Mr C stated that on Mr A's arrival at the Retirement Centre he talked to Mr A in the car, in the presence of Mr E, while Mr A's family made their way to the office area. Mr C said that at first Mr A was saying that he did not want to come in and was repetitively talking about his wife, the funeral and his cat. Mr C also acknowledged that Mr A was trying to get them to take him back home. Mr C said it was late in the day when Mr A arrived at the Retirement Centre and he was faced with an old man with no place to go because the family wanted him out of the house he had been living in. Mr C also stated that Mr A retracted earlier statements he had apparently made about threatening to burn down the house and commit suicide. Both Mr C and Mrs D stated that they did not consider Mr A was suicidal.
Mr C noted that, as a rest home proprietor, he felt "he had a special duty of care to assist Mr A if he was able to help (which he was) and that he would be in breach of that duty and liable to the relevant authorities, if he simply turned Mr A away".
Mr C also noted that:
"[w]hile still in the car, [Mr A] eventually settled down and faced up to the realities of his position. This was well before any of the admission procedures were raised. His retraction of his earlier threats and suicide statements were simply part of his calming down and acceptance of his position and willingness to address his present position."
At interview, Mr E advised that he was in the car when Mr C got in and talked to Mr A. Mr E said Mr C used soothing words like "why not have a rest for a fortnight". Mr E advised that the other family members were not present in the car during this time. Mr E stated that Mr A got out of the car "of his own free will".
Mrs D, matron of the Retirement Centre, stated that she talked to Mr A in the car following his discussion with Mr C. Mrs D said that Mr A eventually agreed to leave the car and accompany Mrs D to view the room he was to occupy. Mr C noted that viewing the room entailed Mr A walking from one end of the rest home to the other:
"[Mr A] did this of his own volition, freely and without assistance or compulsion. He demonstrated considerable agility during the walk which involves a considerable distance, and it was clear that he was completely mobile during this walk. He was freely able to simply walk away if that is what he wanted to do. He did not do so. He went with [Mrs D] to the room and found it acceptable. He expressed satisfaction with the room and agreed to take it. He remained there for a considerable period talking to [Mrs D]"
Mrs D said that she offered him a cup of tea, which he accepted, and they talked for some time.
I accept Mr C's evidence (corroborated by Mr E) that Mr C talked to Mr A in the car for some time and that after some initial reluctance, Mr A, agreed to stay at the Retirement Centre. Mr A left the car voluntarily and went with Mrs D to view the room he was to occupy.
The admission forms
Mr C attended to the admission procedures in the office with Mrs G. There is conflicting evidence about the circumstances surrounding the admission process and Mr A's signature on pages 3 and 4 of the separate admission form. Mr A cannot recollect the events in detail and cannot recall signing any forms. There is also some conflict in the evidence of Mr and Mrs D as to when the forms were signed.
The standard admission form is a four page document. The first page of the admission form includes the name and date of birth of the resident, and the name of the admitting agent or next of kin. There is provision for the next of kin and admitting agent to sign on behalf of a resident but no provision for the resident to sign. The admission form was signed by Mrs G as admitting agent and witnessed by Mr C as Director of the Retirement Centre. Mrs G said she signed the form because she was Mr A's daughter. On the same page the "qualifications" and obligations of the "admitting agent" are stated as:
"a relation/friend of the above named person ("the resident"), in consideration of you accepting and providing care to the resident, agree (a) that I am authorised to act on behalf of the resident and (b) that on behalf of the resident and also personally shall be bound to you pursuant to this contract of care on these and the terms and conditions as more particularly set out overleaf, and acknowledge having read and understood the same."
Page 2 of the admission form is entitled "Standard Terms and Conditions of Contract of Care" and sets out the terms and conditions of the agreement in general terms. Paragraph 5 provides that the resident and admitting agent are liable for all fees due to the Retirement Centre, including such ordinary fees set by the Retirement Centre for the provision of care, additional fees, a booking fee and interest on all outstanding moneys. The form does not provide any specific details about the fees payable.
Page 3 of the form is entitled "Authorisation Form - Health Information - Privacy and Confidentiality" and seeks authority from the resident to collect and disclose personal information to certain persons.
Page 4 of the form is entitled "Agents Authorisation Form - Guidelines and Policy for Resident Finances", and provides an area for the resident to sign an authority for the appointment of an agent who will act in the resident's best interest. Mrs G also signed this form accepting responsibility as agent.
Mr A's signature does not appear anywhere on the admission form that was given to Mrs G to sign. However, Mr A's signature appears on pages 3 ("Authorisation Form - Health Information - Privacy and Confidentiality") and 4 ("Agents Authorisation Form - Guidelines and Policy for Resident Finances") of a separate admission form.
Page 4 of the separate admission form specifies that Mr A did not want to retain control of his financial affairs, but did not want either the admitting agent or the Retirement Centre to manage them on his behalf. The document records a purported appointment of Mr C as Mr A's agent to manage his affairs. However, Mr C did not sign the form accepting responsibility as agent.
In his response to the former Commissioner, dated 18 February 1998, Mr C stated:
"Upon admission separate forms were signed by both [Mr A] and by [Mrs G] (whom I then realised was his daughter as well as his daughter in law). Much of the reluctance by [Mr A] was dissipated at this point and the admission proceeded along normal lines apart from the urgency derived from the fact of having no other accommodation to go to. Any assessment of [Mr A] for permanent placement would have to be done by a social worker attending him at [the Retirement Centre]. Other urgent placement alternatives such as 'Carer Support' were not appropriate. Thus [Mr A] was considered by [the Retirement Centre] as a short term Private Fee Resident and payment was underwritten by the family should [Mr A] not have the financial means nor be able for any reason to gain a fee subsidy."
At interview, Mr C and Mrs D stated that "[Mrs D] signed as admitting agent. Both [Mrs D] and [Mr A] signed separately taking responsibility for payment of fees. [Mr A] signed the privacy part of the form later, in his room." Later, in the interview, they said that Mr A "came back and signed papers". The Retirement Centre noted in its response to the Commissioner of 24 November 1999 that following the cup of tea with Mrs D, Mr A assisted in the completion of the formalities in the presence of the whole group. Mr C said that Mr A freely executed two parts of the admission documents himself.
In the Retirement Centre's submission of 29 May 2002, the Retirement Centre stated that "both [Mrs G] and [Mr A] signed the admission form separately in the office before [Mr A] went into the Care facility. ... [Mr C] only dealt with [Mr A] and the forms in the office. The position was that after some initial reluctance, [Mr A] orally accepted the services of [the Retirement Centre] and [Mrs G's] agency. ... [Mrs G] signed the admission forms and undertook the financial responsibility of Mr A's care, should he be unable to pay himself, consistent with her previous assertion in her phone calls to [the Retirement Centre] prior to [Mr A's] arrival."
Mr E said in his interview that he could not recollect anything being signed by Mr A. He said that Mr A did not sign anything in the office.
I note that all witnesses were interviewed and information obtained over a year after Mr A's admission to the Retirement Centre, and that that is likely to have affected their ability to recall all the events that took place on that day.
Having considered all the evidence, I find that after Mr A went to view his room with Mrs D, he remained talking with her for some time over a cup of tea. While it is not entirely clear, on balance, I am satisfied that the admission procedures were undertaken in the office between Mrs G and Mr C, while Mr A was with Mrs D. Mr A signed pages 3 and 4 of a separate admission form at a later stage.
In the Retirement Centre's submissions in response to the Commissioner's first provisional opinion and third provisional opinion, the Retirement Centre asserted that Mr A was made aware of the Retirement Centre's fees and other relevant matters and these were accepted by him verbally. On balance, having considered all the circumstances, I am not satisfied that Mr A was provided with full information prior to his admission to the Retirement Centre. My reasons for this finding are discussed later in this report.
Mr C advised that Mr A was not seen by a doctor immediately after admission, as his admission was after 4.30pm. Mr C stated that although Mr A had a container of lorazepam with him, it was empty. Mr A had said that he could not sleep in a strange bed and therefore the after hours doctor, Dr K, was contacted. Dr K prescribed Rivotril tablets for Mr A.
Mr C produced a typewritten internal memorandum, dated 6 February 1997, from Mrs D to an employee, Mr P, which stated:
"[Mr A] was admitted 5/2/97 late afternoon. ... [Mr A] lost his wife, cat and 'house' last week. He became very depressed and wanted to burn his house and/or commit suicide. The family brought him and a talk to [Mr C] [sic]. I rang [Dr Q] to get some advice when he arrived, she had just left the surgery. I contacted [Dr K]. I explained the situation so he rang the chemist and prescribed Rivotril 1 b.d. ... ."
At the bottom of the Retirement Centre's admission form, and on the matron's record of 6 February 1997, Dr K's prescription of Rivotril for Mr A was recorded.
When contacted, Dr K advised that he could not recall the events of 5 February 1997. However, Dr K noted that two tablets of 0.5mg Rivotril was adequate to sedate an agitated patient. Dr K said that he is very conservative in his approach to dispensing Rivotril and that his preference is for a staff member to spend the night with a disturbed resident.
Mr I, pharmacist, advised that he dispensed 0.5mg tablets of Rivotril for Mr A on 5 February, in accordance with Dr K's prescription. A photocopy of Dr K's signed prescription was produced in support.
Mr C noted that the medication arrived at the Retirement Centre "before 10pm".
I note the conflict of evidence concerning the administration of sedatives to Mr A. On balance, I accept Mr C's version of events. More time than that suggested by Mr A would have had to elapse after his arrival before he was finally administered any sedatives. Dr K was contacted after Mr A's late admission and, following Dr K's arrival at the Retirement Centre, he organised for the prescription of Rivotril to be dispensed by an external chemist. These steps would account for Mr C's statement that the Rivotril medication arrived at the Retirement Centre "before 10pm".
In about late February or early March a dispute arose between the Retirement Centre and Mr A in relation to who was responsible for the payment of the account for services provided. The Retirement Centre asserts that Mr A discovered that he was liable for fees only after he had left the Retirement Centre when Mr C wrote to his solicitor on 4 March 1997 (the Retirement Centre's solicitors' submissions to the third provisional opinion). It is only necessary to determine whether Mr A became aware that he was personally liable for the payment of the fees before or after he was admitted to the Retirement Centre - the exact time is not critical. Having considered all the circumstances, I am satisfied that Mr A did not become aware of the fee details, and of his personal liability for their payment, until after he was admitted to the Retirement Centre.
In a letter to Mrs G dated 21 February 1997, Mr C enclosed an account for the fees payable on behalf of Mr A. Mr C also advised that he was endeavouring to have Mr A assessed by a social worker for a residential care fee subsidy. Mr C also advised:
"Therefore, with this family claim in mind and with the information you gave me that the family have 'placed in bond' all the belongings of [Mr A], [the Retirement Centre] will probably have to rely upon the family for its fees and that these expenses will simply add to the family claims against [Mr A]. ...
Meanwhile, [Mr A] is well settled at [the Retirement Centre] and seems to thoroughly enjoy the life and the companionship it provides. While we concede the point [of] his claim that [the Retirement Centre] was not his choice but that of the family, he also has happily agreed that there is no point him moving elsewhere until the family matters are settled.
Thank you for conveying on behalf of your family your satisfaction with [the Retirement Centre's] management of this rather difficult and unusual situation."
On 4 March 1997 Mr A left the Retirement Centre. Mr A stayed with Mr E and Mrs F for about ten days until Mr A arranged permanent accommodation. Mr A subsequently found a unit where he lives independently.
In a letter of 4 March 1997 to Mr A's solicitors, Mr C provided a formal statement of account and advised that the account should be paid and become part of the claim Mr A is making against the family ([ ... ]). The account rendered for two weeks from 5 February 1997 was $1,050.00. The residential fees to 4 March 1997 were $1,050.00. Comfort expenses and telephone calls were $104.36. The bed fee in lieu of one week's notice was $525.00. This amounted to a total due of $2,729.36. Mr C further stated:
"As I indicated to you, both [Mr A] and [Mrs G] signed separate forms acknowledging their separate responsibility for the fees. However, [Mrs G] signed as agent and next of kin for [Mr A] and this was accepted by [the Retirement Centre] on the grounds that [Mr A] both accepted her 'agency' and needed her 'agency' for the conduct of his business. It has since become apparent that [Mr A] is trying to use this 'agency' as a device to save him from payment of fees and I take very strong exception to his attempt to avoid payment."
The Retirement Centre wrote to Mrs G on about 5 March and attached a copy of the letter of 4 March. Mr C noted:
"As has been my policy throughout, I have tried to keep [the Retirement Centre] from being partisan with regard to either party and I have therefore all communique from the [the Retirement Centre] goes to each party.
I appreciate your offer to see this account settled before releasing furniture to [Mr A]. I will let you know when I hear further from [Mr B, Mr A's lawyer].
I may add that I am pleased with the way in which [the Retirement Centre] rose to the challenge of providing care without being too involved in family affairs. I look forward to hearing from you and thank you for the warmth of regard you have extended to us on every occasion."
In a letter of 7 March 1997, Mr A's solicitor, Mr B, stated:
"You state that [Mrs G] signed as agent and next of kin for [Mr A], and that this was accepted by [the Retirement Centre] and by [Mr A]. However, in the light of the previous conversations you had with [Mrs G] and the circumstances of [Mr A's] arrival at [the Retirement Centre] it would have been patently obvious that [Mr A] had not given authority to [Mrs G] to make arrangements on his behalf and that she was not acting as his agent. Therefore, if [Mrs G] acknowledged liability that must be on her own behalf, or on behalf of the [ ... ] family."
Nevertheless, Mr B advised Mr C that Mr A was most anxious that the Retirement Centre's costs were met so that the Retirement Centre was not the "meat in the sandwich". Mr A did not acknowledge any liability to the Retirement Centre but made a 'without prejudice' payment of $2,204.36. The payment did not include the bed fee in lieu of notice of $525.
In a letter of 8 March 1997 from Mr C to Mr B, Mr C noted the receipt of a partial payment of $2,204.36 and informed him that fees were payable one week in advance hence the week's notice of $525. Mr C added:
"Note further that the account is not finalised with what was rendered on 4 March 1997. Items which have not been added include:
1. 'extraordinary nursing' In order to protect the premises and other residents from the threats of [Mr A], he was personally attended by an extra staff member providing a 24 hour watch for the first 41 hours. Costed at $12 per hour. $492.00.
2. 'ancillary services' Include transport, attendance at [the Law Office], correspondence and phone calls. In all say 10.5 hours at $50 per hour. $525.00
3. 'medical practitioner' [The Retirement Centre] doctor attended [Mr A] on three separate occasions and the Emergency doctor prescribed sedatives. $125.00
[The Retirement Centre] would have allowed these items above to be absorbed within the one-off payment of fees as stated if paid in full. I would therefore be obliged if you would add these items to the outstanding account, noting the terms of payment being: A monthly Booking Fee will accrue at 2.5 % on outstanding accounts of more than 10 days. Final Statement of Account at 8 March 1997 $1667.00."
On 17 March 1997, Mr B advised Mr C that Mr A accepted no liability for the sum of money claimed:
"My client is firmly of the view that he has not entered into any agreement with you to provide rest home care services and that he was brought to [the Retirement Centre] involuntarily, as would have been clear to you at the time."
In a letter of 20 March 1997 to Mr B, Mr C requested the second and final payment of $1,667.00. The request adds:
"Upon making payment he may also like to collect some personal items, photos etc left at [the Retirement Centre]."
In the Retirement Centre's response to the third provisional opinion, the Retirement Centre asserts that the account was rendered to Mr A on the basis that he had verbally accepted the Retirement Centre's services and had been made aware of the costs of the service. I do not accept this and prefer the position indicated by the documentation.
In the Retirement Centre's letter of 4 March 1997, the Retirement Centre indicates that Mr A was sent the account as Mr A had signed a form acknowledging responsibility for the fees. The forms that Mr A signed do not indicate that Mr A accepted responsibility for the fees; arguably, to the contrary. It appears from the documentation, and in light of all the circumstances, that Mr A quite reasonably did not consider that he was personally responsible for the fees, but that Mrs G was.
The Retirement Centre submitted that Mr A only contended he had not accepted the services in the letter from his solicitor of 17 March 1997. In the letter from the Retirement Centre to Mrs G of 21 February 1997, the Retirement Centre conceded Mr A's "point" that the Retirement Centre was not his choice but that of the family. In my opinion, Mr A has consistently denied liability for the payment of the fees, at least from 4 March 1997, on the basis it was Mrs G who made the arrangements for Mr A to be admitted to the Retirement Centre on her own behalf.
Even if I found that Mr A was aware that he was liable for the fees, I am not satisfied that he was informed of the 'bed fee in lieu of one weeks notice', or of the costs for 'extraordinary nursing', 'ancillary services' and 'medical practitioner'. These latter costs appear to have been added to the account because Mr A did not pay the account in full.
The Retirement Centre's solicitors also submitted that a "fundamental question not addressed by the Commissioner is whether [Mrs G] was the party properly liable for [the Retirement Centre's] costs?" This is not an issue that requires my determination. It is, however, significant that the Retirement Centre sought to make Mr A liable for the costs which sharply exposed the issue whether Mr A had been adequately informed prior to admission of what those costs were.
Code of Health and Disability Services Consumers' Rights
The following Rights in the Code of Health and Disability Services Consumers' Rights are applicable to this complaint:
Right to Services of an Appropriate Standard
2) Every consumer has the right to have services provided that comply with legal, professional, ethical, and other relevant standards.
Right to be Fully Informed
1) Every consumer has the right to the information that a reasonable consumer, in that consumer's circumstances, would expect to receive, including -
a) An explanation of his or her condition; and
b) An explanation of the options available, including an assessment of the expected risks, side effects, benefits, and costs of each option; and
c) Advice of the estimated time within which the services will be provided; and
d) Notification of any proposed participation in teaching or research, including whether the research requires and has received ethical approval; and
e) Any other information required by legal, professional, ethical, and other relevant standards; and
f) The results of tests; and
g) The results of procedures.
2) Before making a choice or giving consent, every consumer has the right to the information that a reasonable consumer, in that consumer's circumstances, needs to make an informed choice or give informed consent.
Right to Make an Informed Choice and Give Informed Consent
1) Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent, except where any enactment, or the common law, or any other provision of this Code provides otherwise.
2) Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent.
Ministry of Health, Standards of Care for Old People's Homes
The licensee or resident manager should make sure prospective residents are properly prepared for admission, and everything possible is done to make their transition from community to the home as pleasant as possible.
Guidelines: Before Admission - Give prospective residents opportunities to visit the home and meet the manager and the staff.
The Retirement Centre Residential Care Management Policy
"The rights of clients/patients/residents ... include:
- information and participation in decision making to enable informed consent ... ."
The Retirement Centre
My opinion on Mr A's complaint is as follows.
Mr A's admission to the Retirement Centre on 5 February 1997
In my opinion the Retirement Centre breached Rights 6(2) and 7(1) of the Code in the following respects:
Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent. A 'consumer' is defined in clause 4 of the Code to mean "a health consumer or a disability services consumer, and for the purposes of [specified rights] includes a person entitled to give consent" on that person's behalf. There is a presumption of competence under Right 7(2) of the Code.
In some situations, informed consent may be given by a person on behalf of the consumer. The Protection of Personal and Property Rights Act 1988 allows the appointment of welfare guardians who are entitled to make decisions on behalf of individuals who are temporarily or permanently incapacitated. However, simply being a relative of the consumer does not automatically give a person the ability to give informed consent on behalf of the consumer, or to act as the consumer's agent.
In this case, Mr A was the consumer in terms of the Code. The Retirement Centre was aware that Mr A was competent. Mr A, as a competent individual, had the right to make an informed choice whether or not to be admitted to the Retirement Centre. Mrs G was not entitled to give consent or make choices on behalf of Mr A.
I note that the Retirement Centre's own Residential Care Management Policy states (at para.9.1) that:
"The rights of clients/patients/residents ... include:
- information and participation in decision making to enable informed consent ... ."
The informed consent process involves three essential elements:
- Effective communication between the parties;
- Provision of all necessary information to the consumer (including information about options, risks and benefits); and
- The consumer's freely given and informed consent.
These elements work together and are affirmed by Rights 5, 6 and 7 of the Code respectively. In my opinion, the process of obtaining informed consent from Mr A was not followed by the Retirement Centre so as to meet the standards required by the Code. For the sake of clarity I have referred below to breaches of Rights 6 and 7 separately.
Failure to inform Mr A
The Retirement Centre had a duty to ensure that Mr A was given all information that a reasonable consumer, in his circumstances, would expect to receive to enable him to make an informed choice whether or not to be admitted to the Retirement Centre. The Retirement Centre had a duty to provide Mr A with information about the services available, terms and conditions of the services, including the cost, and who was liable for such costs.
In this case, information was provided to a family member, namely Mrs G, and not to Mr A himself. All communications and arrangements regarding the admission of Mr A were made between the Retirement Centre and Mrs G. The Retirement Centre provided information to Mrs G about the services available, costs, and liability for the costs.
In certain circumstances, a provider may fulfil the duty of disclosure by providing information to a person authorised to act on behalf of a consumer. However, in this case, the Retirement Centre was aware of the difficult family situation and that Mrs G was not acting as Mr A's authorised agent. The Retirement Centre was aware, or ought to have been aware, that Mrs G was seeking or receiving information on her own behalf and not on behalf of Mr A.
Mrs G completed the admission formalities in the office at the Retirement Centre with Mr C. The 4-page admission form and information contained on the forms was provided to Mrs G.
Even if the information contained in pages 1 and 2 of the Retirement Centre's admission form had been provided to Mr A before admission, it would not have been sufficient. While page 2 of the admission form sets out the terms and conditions of the agreement in general terms, the form does not provide sufficiently detailed information about the service options, and terms and conditions of the services, including the cost of the service, to have enabled Mr A to make a fully informed decision to accept the services offered.
In the Retirement Centre's submissions in response to the Commissioner's first provisional opinion and third provisional opinion, the Retirement Centre asserts that Mr A, as well as Mrs G, was made aware of the Retirement Centre's fees and other relevant matters and these were accepted by him verbally before his admission.
At interview, there was no mention of any discussion with Mr A about the costs of the service. Mr C and Mrs D recall discussing the Retirement Centre's fees, and the payment of them with Mrs G.
Prior to Mr A's admission to the Retirement Centre, all information about the Retirement Centre had been provided to Mrs G. There had been no direct contact with Mr A. It would not be reasonable for the Retirement Centre to assume that, in these circumstances, the information provided to Mrs G had been passed on to Mr A.
Upon Mr A's arrival at the Retirement Centre, the discussions with Mr A seemed to focus on settling him down and making him feel comfortable about staying at the Retirement Centre, while the admission formalities were completed with Mrs G.
Mr A left the Retirement Centre in early March to find other accommodation. Mr A finally received information about the terms and conditions of the services, and that he was liable for all fees, when Mr C wrote to Mr A's lawyer on 4 March and 8 March 1997 setting out a summary of the account rendered for Mr A's stay at the Retirement Centre. (These letters are discussed in the "information gathered" section of this report.)
Having taken account of the Retirement Centre's submission and all the surrounding circumstances and documentation, I am not prepared to accept at face value the Retirement Centre's statement that Mr A, as well as Mrs G, was provided with cost information. The overwhelming inference is that Mr A was not given relevant information about the costs of the service, at least any detailed information about the costs, and who was liable for the fees. While I have been prepared to accept most of what Mr C has said, on this matter I do not accept his evidence.
Content of disclosure
The Retirement Centre's solicitors submitted that my interpretation of this right to information in these circumstances places a heavy onus on the health provider, and does not recognise a responsibility on the consumer to request information on matters of importance to them. Relevant information is required to be voluntarily disclosed to the consumer under Right 6 of the Code. I do not accept that the voluntary disclosure of such information places a heavy onus on the provider. This information was essentially provided to Mrs G. The Retirement Centre could have easily provided Mr A with full information, including cost information, before he was admitted into the rest home. Mr A, who was tired and upset, was under no duty to seek the relevant information.
The Retirement Centre's solicitors further submitted that it would be inappropriate and is unnecessary to apply the same high standard of information disclosure that is applicable in a medical treatment context to the present case. I acknowledge that the content required to be disclosed will vary depending on the circumstances and the nature of the service, but I do not accept that there is a higher standard for medical treatment than for rest home services. As noted by Justice Glazebrook, information as to costs of services will nearly always be highly relevant to the decision to enter a rest home, especially where the consumer, as here, was expected to bear the costs personally. Cost information is explicitly included as relevant information required to be disclosed in Right 6(1)(b). It is also significant to note that Justice Glazebrook considered that Mr A should have been informed about any alternatives to the Retirement Centre.
On balance, I am not satisfied that the Retirement Centre took reasonable actions in the circumstances to provide Mr A with sufficient information about the service options, terms and conditions of the services available, including the cost of the services, and who was liable for such costs. Given Mr C's knowledge of the family situation, he should have been especially conscious of the need to provide all relevant information to Mr A directly.
In my opinion, by failing to provide Mr A with the relevant information the Retirement Centre breached Right 6(2) of the Code.
Failure to obtain informed consent
A consumer has the right to make an informed choice, and give informed consent, to receive services (Right 7(1)). As a corollary to the right to give informed consent, a consumer also has the right to refuse services and to withdraw consent to services (Right 7(7)).
The use of the word "choice" as well as "consent" is intended to emphasise that the consumer is taking an active role in decision making, rather than passively acquiescing to a course of action proposed by the provider. Consent is not valid unless it is freely given and fully informed in accordance with the requirements of the Code (see definition of "informed consent" in section 2(1), Health and Disability Commissioner Act 1994). In terms of the Code, this is not a one-off event, or the signing of a form, but a process which leads to decision-making.
In my opinion, while Mr A eventually acquiesced in his admission to the Retirement Centre, he did not (and could not, in light of the inadequate information he had been given) truly consent, with a complete understanding of what was being consented to.
Mr A was not actively involved in the decision to be admitted to the Retirement Centre. Mr C, in a letter to Mrs G of 21 February 1997, "concede[d] the point [of] [Mr A's] claim that [the Retirement Centre] was not his choice but that of the family". The Retirement Centre was aware that Mr A was pressured by his family to receive services from the Retirement Centre. By admitting Mr A on the instructions of his family without sufficiently communicating with Mr A in advance to determine whether this was what he wanted, the Retirement Centre became party to a family dispute and denied Mr A the right to make an informed choice or give his informed consent to be admitted. Mr A passively acquiesced in the course of action proposed by the family together with the provider.
The fact that Mrs G signed the admission form supports my finding that the Retirement Centre did not actively involve Mr A in the decision-making process. However, even if Mr A had signed pages 1 and 2 of the admission form consenting to his admission this would not, by itself, mean that the Retirement Centre's obligations in respect of the informed consent process were fulfilled.
Mr A did not have a complete understanding of what he was consenting to. The Retirement Centre's failure to provide Mr A with all relevant information before he consented to receive services from the Retirement Centre is discussed above in relation to Right 6. While, following admission, Mr A was free to come and go, in my opinion, Mr A's continued stay did not reflect a fully informed choice.
In my opinion, the Retirement Centre did not take reasonable steps in the circumstances to obtain Mr A's informed consent.
Mr C noted that, as a rest home proprietor, he felt "he had a special duty of care to assist [Mr A] if he was able to help (which he was) and that he would be in breach of that duty and liable to the relevant authorities, if he simply turned [Mr A] away". In my opinion, this statement reveals a misunderstanding of the situation. The issue is not whether the Retirement Centre had a duty to provide services or a right to refuse to provide services to Mr A, but whether the Retirement Centre enabled Mr A to exercise his right to make an informed choice to receive services provided by the Retirement Centre.
Mr A's distressed state on his arrival, and his family's insistence that he had nowhere else to stay, should have raised enough alarm bells for the Retirement Centre to explain Mr A's rights under the Code to him and his family.
In my opinion, by failing to obtain Mr A's informed consent, the Retirement Centre breached Right 7(1) of the Code.
The Retirement Centre's solicitors submit that Mr A chose to stay at the Retirement Centre. The Retirement Centre did not attempt to have Mr A sign the admission form until he decided he was happy to stay.
Mr A did not sign the full admission form. However, it is not disputed that Mr A eventually agreed to stay at the Retirement Centre and was free to come and go. I also acknowledge that Mr C and Mrs D went to some lengths to make Mr A feel comfortable at the Retirement Centre upon his arrival and showed him the facilities, and that Mr A seemed to enjoy his time there. I have no doubt that Mr C and Mrs D were acting in good faith and genuinely endeavouring to assist Mr A and his family in a difficult situation. Nevertheless Mr A was not sufficiently involved in his own admission and, as noted earlier, I do not accept that adequate disclosure was made to Mr A. While it is perhaps understandable, it is not acceptable, in terms of the Code, that the Retirement Centre did not actively involve Mr A in the admission process and disclose fee information to him upon his admission in light of all the circumstances.
Mr A could only be considered to be in a position to make an informed choice to stay at the Retirement Centre when he was sufficiently informed of all relevant information pertaining to his stay.
Mrs G as the consumer
The Retirement Centre's solicitors submitted that Mrs G could be considered the consumer in relation to the issue of payment. As noted above, Mrs G was not the consumer for the purposes of the Code. Mrs G was not legally entitled to give consent on behalf of Mr A. The concern in this case is that Mrs G may indeed have been considered the consumer by the Retirement Centre, to the detriment of Mr A's rights as the real consumer, in fact and in law. While it may be appropriate in some circumstances for a relative to act as an admission agent with the express authority of the prospective consumer, and for the relative to receive the relevant information, the provider should always ensure that the consumer is also fully informed of all relevant matters. In this case, the Retirement Centre was aware, or ought to have been aware, that Mr A was not informed of all relevant matters. The fact that Mr A was distressed about being taken to the Retirement Centre and that the family was refusing to take him home should have made the Retirement Centre even more alert to ensuring Mr A was fully informed and involved.
In short, Mrs G was not legally entitled to give consent on behalf of Mr A. While I acknowledge that the Retirement Centre believed that it was acting in the best interests of Mr A, the Retirement Centre overlooked the right of Mr A to be given the opportunity to be fully involved in his decision to stay at the Retirement Centre, including his right to receive all relevant information, and failed to take reasonable actions to give effect to his rights.
The Retirement Centre's solicitors submitted that it is unrealistic to believe that explaining a person's rights under the Code will actually yield meaningful options for a consumer in these circumstances. If Mr A had been informed of the costs, and that he was liable for them, he may have made alternative arrangements - stayed with a friend or in a motel - or he may have stayed on at the Retirement Centre. However, it is not necessary to speculate about this. What is important is that a consumer's rights under the Code are respected and upheld.
It was also submitted that the Commissioner's expectation is that providers simply reproduce the Code on their admission forms and require patients to acknowledge they have read their rights. Under clause 1 of the Code, a provider is required to take action to inform consumers of their rights and enable consumers to exercise them. Reproducing the Code on admission forms and requiring patients to acknowledge they have read their rights is a necessary but not sufficient means of giving effect to clause 1 of the Code.
Opinion: No Breach
The Retirement Centre
The Retirement Centre has a duty to provide services of an appropriate standard, in particular services that comply with any relevant standards.
The Retirement Centre is licensed by the Ministry of Health. The Ministry of Health has published the relevant standards of care required in old people's homes, in a booklet entitled "Standards of Care for Old People's Homes" ("MOH Standards"). These are not directly binding on the Retirement Centre, but they are applied by the Ministry of Health in relation to its licensing of rest homes under the Old People's Homes Regulations 1987. As such, I consider that they are "relevant standards" in terms of Right 4(2) of the Code.
Standard 1 of the MOH Standards provides that the licensee or resident manager should make sure prospective residents are properly prepared for admission, and everything possible is done to make their transition from community to the home as pleasant as possible. Further, that they should give prospective residents opportunities to visit the home and meet the manager and the staff before admission.
The Ministry of Health advised that no differentiation should be made between prospective residents for short-term or long-term care. The MOH Standards apply to both. The Ministry advised, however, that it might be reasonable for a rest home to spend less time preparing a prospective resident for admission for short-term (ie, respite, or temporary) care.
In my opinion, Mr A, as a prospective resident, was not properly prepared for admission. On 1 February 1997 Mr A's family contacted the Retirement Centre and booked a room for Mr A for a week from 5 February 1997, with a view to him staying longer. The Retirement Centre did not offer Mr A the opportunity to visit or meet rest home staff prior to his admission, nor did it contact Mr A regarding his admission into the rest home.
Mr A's admission did not comply with the relevant standards set by the Ministry of Health. However, the Retirement Centre has shown that it took reasonable actions to provide Mr A with services of an appropriate standard, given the unusual and difficult circumstances of this case.
There was not a significant period of time from when the Retirement Centre was initially contacted by Mrs G and Mr A's short-term admission. Mr A's wife had been ill for some time and eventually died at home on 30 January 1997. Mr A was in a tired and distressed state after caring for his wife. Shortly after the funeral, Mr A was taken to the Retirement Centre by his family for short-term 'respite care'. The manner in which Mr A was brought to the Retirement Centre caused him further distress. I accept that Mr C and Mrs D went to some lengths to make Mr A feel comfortable at the Retirement Centre upon his arrival, show him the facilities, and settle him in to his room. Mr A seemed to enjoy his time there. I have no doubt that Mr C and Mrs D were acting in good faith and genuinely endeavouring to assist Mr A and his family in a difficult situation. Accordingly, in my opinion the Retirement Centre did not breach Right 4(2) of the Code.
Further to my comments on pages 12 and 13 of this report, I am left in some doubt as to the accuracy of Mr A's recollection of events immediately after he arrived at the Retirement Centre. I cannot conclude that Mr A was administered medication on 5 February 1997 against his will. I accept that it is probable that Rivotril was administered to Mr A, on his request, to help him sleep in a bed that he was not accustomed to sleeping in.
Exertion of pressure to enforce payment
Mr A complained that Mr C "exerted pressure on [Mr A] to pay for services that he had never consented to nor required". However, the only evidence presented to support this aspect of the complaint is a letter dated 20 March 1997, in which the Retirement Centre advised Mr A through his solicitor that "[u]pon making payment [Mr A] may also like to collect some personal items, photos etc left at [the Retirement Centre]". In my view, such a statement is not by itself sufficient to support a finding that the Retirement Centre exerted undue pressure on Mr A to enforce payment.
The following recommended actions are intended to provide an appropriate remedy for Mr A, and to prevent recurrence of similar types of breach by other rest home and residential care providers. Mr C's misunderstanding about the Code rights of Mr A and duties of the Retirement Centre was reflected in the Retirement Centre's admission documents, which provided for old persons to be admitted by "admitting agents", rather than for the consumer's competence to be presumed (as required by right 7(2)) and his or her informed consent sought for admission. I have been advised that the Retirement Centre has since changed its admission form.
I recommend that the Retirement Centre take the following actions:
- Provide a written apology to Mr A for breaching the Code, as outlined in this report. The apology is to be sent to the Commissioner's office and will be forwarded to Mr A.
- Refund Mr A the cost of his care. Payment should be made to the Commissioner and will be forwarded to Mr A.
- Ensure that the Retirement Centre staff and management understand their obligations as providers under the Code of Health and Disability Services Consumers' Rights.
- Provide the Commissioner with a copy of the Retirement Centre's amended admission form which includes a signing provision for the consumer.
- Review and amend the Retirement Centre's written policy entitled '[The Retirement Centre] Residential Care Management', dated 14 March 1995, to reflect its obligations as a provider of health and disability services. Such revision should include, but not be limited to:
- Reference to the Code of Health and Disability Services Consumers' Rights, Health and Disability Consumer Advocates, and the Commissioner.
- Reference to a resident's right to give, withhold or withdraw consent to services, unless there are reasonable grounds for believing the consumer is not competent. Where a resident is not competent, the resident has the right to make choices to the extent appropriate to his or her level of competence.
- Pursuant to section 45(b)(iii) of the Health and Disability Commissioner Act 1994, a copy of this opinion will be sent to the Ministry of Health, as the body responsible for licensing rest homes and public funding of the Retirement Centre.
- An anonymised copy of this opinion will be sent to Quality Health New Zealand and Residential Care New Zealand Ltd, and placed on the Commissioner's website at www.hdc.org.nz, for educational purposes.
Comment of [the Retirement Centre] and [Mr C] ("[the Retirement Centre]") to be appended to the Final Report of the Health and Disability Commissioner
Scope of statement
1 This statement is to be appended to the report of the Health and Disability Commissioner's report, pursuant to s67(a)(ii) and 67(b) of the Act and the specific direction of Justice Glazebrook in the 25 June 2001 judgment in High Court judicial review proceedings (unreported, High Court, Auckland, CP No M1143-SD) between [the Retirement Centre] and the Health and Disability Commissioner ("the Commissioner"). This commentary addresses both the original circumstances and the process by which the investigation proceeded, and is restricted to the length allowed by the Commissioner for reply.
2 Prior to the admission of [Mr A] to [the Retirement Centre] his daughter contacted [the Retirement Centre] to make inquiries as to availability of a room and possibly care for him. [The Retirement Centre] was informed that [Mr A] was not entitled to remain in the house he had been residing any longer, that he refused to accept the reality of his situation and he failed to co-operate with the owners (his deceased spouse's family) by making any arrangements for himself and threatening to burn the house down. He was later removed by them from the house and taken to [the Retirement Centre]. [The Retirement Centre] was not party to the removal of [Mr A] from the house and his transportation to [the Retirement Centre]. There was no opportunity for [the Retirement Centre] to consult with [Mr A] prior to his arrival at [the Retirement Centre].
3 From the time [Mr A] arrived at [the Retirement Centre], he was treated with dignity and respect by [the Retirement Centre] and their staff.
4 [The Retirement Centre] was only motivated by a desire to assist and help [Mr A] and provide to him, if he wanted to accept it, a temporary place to stay and possibly 'respite care' following the demise of his spouse.
5 On arrival at [the Retirement Centre's] car-park [Mr A] was agitated but he settled down and eventually agreed to stay at [the Retirement Centre] and he voluntarily entered [the Retirement Centre] and was shown the facilities and the room.
6 Admission forms were completed by both [Mr A] and his daughter. [Mr A] signed the admission form in his own hand in two separate locations.
7 [Mr A] voluntarily stayed at [the Retirement Centre] for a considerable period and he continued to accept the accommodation and services provided. He was free to come and go as he pleased and he did so.
8 Through his solicitor [Mr A] paid the account which would otherwise have been paid by his daughter. Thus independently [Mr A] and his daughter agreed that the service was appropriate and agreed to the cost. This payment was made more than six months before [Mr A] made the complaint to the Commissioner. [The Retirement Centre] could have re-invoiced the costs if the issue had been raised promptly.
The Process involved - the Commissioner's Investigation
9 The course of the investigations and analysis of [Mr A's] complaint by the Commissioner has involved (a) the Commissioner issuing five different versions of his or her opinion/report over a 2½ year period and, (b) a judicial review proceeding after the Commissioner issued the second such report.
10 The five versions of the opinion/report that the Commissioner has issued are as follows:
10.1 Provisional opinion of 18 October 1999 - alleging breaches of 11 Rights of the Code;
10.2 Commissioner's report of 17 February 2000 - alleging breaches of 9 Rights of the Code;
10.3 Commissioner's provisional opinion of 6 July 2000 - alleging breaches of 4 Rights of the Code;
10.4Commissioner's third provisional opinion of 14 February 2002 - alleging breaches of 4 Rights of the Code;
10.5Draft final opinion 97/9172 dated 14 June 2002 - alleging breaches of 2 Rights of the Code.
11 Since it received the Commissioner's provisional opinion of 18 October 1999, [the Retirement Centre] has asserted that the investigation and process of the Commissioner has been flawed and unfair.
12 The need for the large number of versions of the report and the judicial review application arose primarily because of flawed and defective process followed by the Commissioner. It has also come about because [the Retirement Centre] has challenged the Commissioner as to: (a) the process that they had followed, (b) the evidence upon which conclusions were drawn, (c) the analysis of the evidence, and (d) the shortcomings of the investigation.
13 The history of the interaction between [the Retirement Centre] and the Commissioner shows that as a result of (a) [the Retirement Centre's] legal challenges to the Commissioner's process and his various provisional opinions and, (b) the judicial review proceeding, the Commissioner has significantly changed his analysis and reports and dramatically reduced the number and extent of breaches of the Code that he asserted had occurred.
14 Although in the judicial review proceeding Justice Glazebrook declined to give the remedies sought, in the course of the judicial review hearing the Commissioner conceded "… that one of the breaches alleged will not be in the final report …" (paragraph 104 of Justice Glazebrook judgment) and as a result of that Her Honour held "as a matter of process" that the Commissioner "... should provide a third provisional opinion to [[the Retirement Centre]] with the changes consequent on this and give them a full opportunity to comment ... He should then ensure that he clearly deals with all of [[the Retirement Centre's]] submissions. A draft of the final report should be provided to the[the Retirement Centre]. A further opportunity should then be given in accordance with s67(a)(i)". Initially the Commissioner would not provide full details of [Mr A's] complaint so that [the Retirement Centre] had the "full opportunity" referred to by Glazebrook J. [The Retirement Centre] was forced to make detailed submissions through its solicitor and indicate preparedness to make formal applications under the Official Information Act and the Privacy Act and make a complaint to the Ombudsman before the Commissioner resiled from his initial position of refusing to provide the information contemplated by Glazebrook J's judgment. This information was eventually received on 30 April 2002.
15 It is apparent from the information obtained from the Commissioner on 30 April 2002 that there has not been a timely inquiry into the complaint because a significant delay occurred from the time [Mr A's] complaint was received and the time the investigation was commenced and material was obtained from the persons interviewed. This was prejudicial to [the Retirement Centre] in that the delay robbed both the Commissioner and [the Retirement Centre] of the opportunity to make timely inquiry and testing of the evidence in the many areas where there could not, because of the nature of those issues, be a responsible finding without such steps being taken. It is very clear from the information received only on 30 April 2002 that both [Mr A's] and other witnesses' recollection required testing and amplification. Such full inquiry was not properly undertaken by the Commissioner, and as this information was not provided to [the Retirement Centre], it did not have a timely opportunity to seek its own clarification on matters of importance. This prejudice cannot be cured.
16 The narrative provided by the Commissioner is based on the investigation carried out in 1998. There are grave difficulties with that investigation whereby the narrative is misleading, incorrect and unsupported by evidence. This arises partly from the passage of time between the events, and the time information was gathered from witnesses, as well as the failure of the investigator to ask appropriate questions on matters in issue. The Commissioner has taken great liberties in filling in the gaps of events that have resulted from these failures to pursue the matter properly and in a timely fashion. The Commissioner's findings are based upon this narrative and are seriously deficient. There was no critical evaluation of the evidence obtained by the investigation in the first instance and (although the Commissioner has recognised the shortcomings of a number of the early findings) the fundamental problem still remains with the final report, its narrative and the findings.
17 The result of the judicial review proceeding was to bring about significant change to the Commissioner's reports and conclusions. However, the flawed process adopted and sustained by the Commissioner, in spite of the outcome in the judgment, remains unfair to [the Retirement Centre] who have been forced to extreme measures to achieve due process and has had to challenge the procedure of the Commissioner.
18 In summary, [the Retirement Centre] does not accept the findings and conclusions made, nor the process by which they have been derived.
Dated 28 June 2002