Human Rights Review Tribunal,  NZHRRT 24, (10 May 2019)
The Director filed proceedings by consent against a company that owns and operates a residential aged care facility (“the defendant”), in the Human Rights Review Tribunal (“the Tribunal”), regarding the defendant’s care of an 80-year-old man with multiple health problems, including type II diabetes, and Alzheimer’s dementia with delirium (“the aggrieved person”).
At the time of events, the defendant was providing health and disability services to the aggrieved person while he was receiving two weeks of respite care in its psychogeriatric facility (“the facility”). The aggrieved person was admitted on 21 December and discharged on 4 January 2016. During his stay, staff failed to provide services to the aggrieved person with reasonable care and skill. Staff did not follow the defendant’s policies and procedures regarding the use of restraint; did not review the aggrieved person’s medication regimen in light of his deteriorating condition; failed to monitor his diabetes appropriately; failed to evaluate the reasons why he was not eating or taking fluids; failed to clarify the aggrieved person’s legal status; and provided suboptimal personal cares.
The defendant’s restraint policy in place at the time of events was consistent with The New Zealand Health and Disability Services (Restraint Minimisation and Safe Practice) Standards (NZS 8134.2.2008), which state that restraint should be used only in the context of good clinical practice and after all less restrictive interventions have been attempted and found to be inadequate. In addition, the family and the client must be consulted at each step in the process and agree to the use of restraint. On 23 December 2015, a registered nurse (RN) recorded in the aggrieved person’s progress notes that the aggrieved person’s wife had agreed to the use of a lap belt, as required, for the aggrieved person’s safety, and that the aggrieved person’s wife might visit the facility to sign a consent form on 26 December 2015. On 26 December, a Restraint Discussion and Consent form was partially filled out. A handwritten entry on the form recorded that restraint had been discussed with “family & RN on duty”, and that everyone was in agreement that a restraint trial period should commence and had agreed to a lap belt being used when the “client [was] in [an] agitated/aggressive/elevated mood”, for a maximum time period of 30 minutes. The aggrieved person’s wife never signed the restraint consent form. The form was signed only by the Restraint Coordinator (a registered nurse). There is no indication that the aggrieved person was ever consulted about restraint, or his consent gained. Contrary to the defendant’s own policy and the recorded plan for the lap belt, subsequently it was recorded that the aggrieved person was restrained by a lap belt for several hours on ten occasions over a period of nine days. There is no record that alternatives to restraint were considered, or attempted, and no evidence that a medical officer was consulted at any stage.
Prior to his admission, staff were provided with information about the aggrieved person’s medications. However, the medication order sheet sent by the aggrieved person’s facility GP on 23 December 2015 incorrectly recorded the dosage for the aggrieved person’s medications, and when the medication was distributed by the pharmacy it further incorrectly recorded the aggrieved person’s required dosage. The inconsistencies in the aggrieved person’s medication prescription and doses were not reconciled on admission to the facility, and neither the aggrieved person’s GP nor the pharmacy was contacted to query the dosages. Further, the aggrieved person’s wife was not contacted to query whether the prescribed and dispensed medications were consistent with the medication regimen the aggrieved person had been following at home. A comment in the aggrieved person’s discharge form indicated a concern about the aggrieved person’s condition (unsteady on his feet and sleepy), and that this might be linked to overmedication. However, this concern was not raised with the aggrieved person’s family or his GP during the time he resided at the facility.
On 22 December 2015, a nutrition assessment was completed for the aggrieved person and it was noted that he required a diabetic diet. However, the dietary requirement form and the respite/short-term care plan both stated that the aggrieved person ate a “normal diet”. The form also noted a recent history of weight loss (with the aggrieved person experiencing further weight loss during his stay). The food and fluid intake forms recorded that the aggrieved person ate ice cream, cake, and other foods that did not form part of a diabetic diet. While records initially indicated that the aggrieved person was eating well, later recording (after a period of no recording) showed that he either refused meals, or ate and drank very little. The staff did not evaluate the reasons for the aggrieved person’s refusal of food or fluids, and his family or GP were not advised that his food and fluid intake had decreased. There is no evidence that the aggrieved person’s blood sugar level was monitored at any time during his stay at the facility, despite his fluctuating levels of confusion, and observations that he was not eating and drinking adequately.
“Daily Personal Cares” charts recorded the cares provided to the aggrieved person during his stay at the facility. One chart was kept for December 2015. Two charts were kept for January 2016, which were a combined but in some instances inconsistent record of the cares provided to the aggrieved person during that time. It was recorded on the aggrieved person’s December 2015 “Daily Personal Cares” chart that he was showered on three out of eleven days, and had his teeth cleaned once daily over five days. One “Daily Personal Cares” chart kept for January 2016 recorded that the aggrieved person was showered on three days, and had his teeth cleaned once daily over three days, and a second chart recorded a fourth day of showering, but that the aggrieved persons’ teeth were cleaned only once. On 5 January 2016, the day after the aggrieved person was discharged from the facility, he was diagnosed with oral thrush.
While in the care of the facility, staff acted on the basis that the aggrieved person had an activated Enduring Power of Attorney (“EPOA”) for personal care and welfare, and that the aggrieved person’s wife was the appointed attorney and had the power to make decisions on his behalf. In fact, the EPOA had not been activated, and the aggrieved person’s wife did not have that authority. For example, on 21 December 2015, staff at the facility inappropriately organised for the aggrieved person’s wife to sign a non-resuscitation order on his behalf. The aggrieved person was not consulted as to his wishes about resuscitation, and did not have the opportunity to discuss this order with a doctor.
Despite observing a decline in the aggrieved person’s cognitive status, mobility, and eating and drinking ability, staff at the facility failed to respond appropriately to these changes in his overall health. The defendant accepted the shortcomings in the care and documentation during the aggrieved person’s stay in its facility, and acknowledged the failures by senior staff to fulfil key functions of their respective roles. The defendant accepted that it had overall responsibility for the actions of its staff and had an organisational duty to ensure the provision of timely, appropriate, and safe services to the aggrieved person, and to facilitate continuity of his care.
The defendant accepted that its failures in care amounted to a breach of the Code of Health and Disability Services Consumers’ Rights (the Code), and the matter proceeded before the Tribunal by way of an agreed summary of facts. The Tribunal was satisfied that the defendant failed to provide services to the aggrieved person with reasonable care and skill, and issued a declaration that the defendant breached Right 4(1) of the Code.