EXECUTIVE SUMMARY INTRODUCTION the Consumers1 Who Resided at the Oakden Older Persons Mental

EXECUTIVE SUMMARY INTRODUCTION The consumers1 who resided at the Oakden Older Persons Mental Health Service (Oakden Facility)2 were some of the most frail and vulnerable persons in our community. They did not have a voice. They were obliged to live in a facility which could only be described as a disgrace, and in which they received very poor care. The process and procedures were such that they were forgotten and ignored. The State did not provide them with the level of care that they deserved. Every South Australian should be outraged at the way in which these consumers were treated. It represents a shameful chapter in this State’s history. It should not have happened. It must never happen again. I have prepared this report as a consequence of an investigation I carried out into potential serious or systemic maladministration in public administration associated with the Oakden Facility. Later in this report I explain in more detail why I decided to conduct this investigation. The report is necessarily long and detailed. It highlights systemic failings in processes and oversight that allowed the events at the Oakden Facility to occur for more than a decade largely without intervention. The evidence I received was astonishing. It pointed to a regime that existed whereby serious complaints about care were not appropriately addressed. Mechanisms that were designed to ensure serious matters were escalated either failed or were simply not applied. Those directly responsible for the facility actively sought to manage matters ‘in-house’. A culture of secrecy developed.Persons in authority outside of the Oakden Facility were unaware of the systemic failings occurring in the facility. They ought to have known of those failings. Opportunities for intervention were missed. Early in the investigation a number of my staff and I visited the Oakden Facility. My staff and I formed the opinion that it was a disgrace. It should not have been used to house anyone let alone frail and vulnerable consumers. What occurred at the Oakden Facility is a shocking indictment on its management and oversight. 1 The Chief Psychiatrist’s report entitled ‘The Review of the Oakden Older Person’s Mental Health Service’ referred to people who resided at the Oakden Facility as consumers. The Northern Adelaide Local Health Network also referred to them as consumers. I will use the same term. 2 I will variously refer to the Oakden Older Persons Mental Health Service as the Oakden Facility, Oakden or the Facility. PAGE 15 OF 312 PRELIMINARY OBSERVATIONS I acknowledge the significant media and community interest in this report. I also appreciate the timing of the delivery of this report in the context of the State’s political landscape. This investigation took longer than I had hoped. There were delays in receiving all of the relevant documents and the volume of material ultimately received was significant. In all more than 350,000 pages of information was received. Examinations were held over 22 sitting days resulting in almost 2,200 pages of transcript. More recently, a number of individuals with an interest in my report made submissions that required careful consideration and determination. All of these factors contributed to the time taken to finish the investigation. I was not given access to Cabinet Documents despite requesting them. My investigation and this report has been completed without the benefit of seeing those documents (if any existed). There are, no doubt, a number of persons who are interested in my findings. No doubt many will have certain expectations as to those findings and the persons in respect of whom those findings are made. Against those expectations I say the following. The findings I make are derived entirely from my assessment of the evidence received, together with my assessment of those persons who gave evidence before me and after having received and considered submissions made by counsel assisting me and by interested parties. In short I have followed the facts. I have made findings based on the evidence and my assessment of it. As an administrative decision maker I must have regard to any relevant consideration and I must not have regard to any irrelevant consideration. I must not make findings based upon or influenced by popular or political expectation as that would be an improper exercise of power and an egregious abuse of my office. I am satisfied that the findings I have made in this report are properly informed by the evidence and submissions I have received. WHAT IS TO BE LEARNED In respect of the Oakden Facility I have heard on a number of occasions various individuals assert that they were ‘fixing the problem’. It appears to me that those statements were based upon the assertion that the problem was being fixed by closing the Oakden Facility and transferring consumers into alternative care. The closure of the Oakden Facility was, of course, entirely necessary and appropriate. But, with respect, that was not fixing the problem. What was being done was taking action to resolve the consequences of the problem.The problem was the regime that existed that enabled the Oakden Facility and its operations to deteriorate to such an extraordinarily poor state and to operate in that way for such an extended period of time without any meaningful intervention. PAGE 16 OF 312 Closing the Oakden Facility without fully and properly understanding how and why the facility and its operations could deteriorate to such an extent, seemingly unchecked, leaves open the very real possibility that similar failures could be perpetuated in the future in other settings. For that reason I think this report ought to be considered by all public officers in positions of authority, irrespective of the agency within which they are employed. This report offers some salient lessons about identifying and properly dealing with complaints, the consequences of attempting to ‘contain’ issues of concern and withhold information from senior persons and the extraordinary dangers associated with poor oversight, poor systems, unacceptable work practices and poor workplace culture. Above all it highlights what can occur when staff do not step up and take action in the face of serious issues. I appreciate that it is not always easy to step up in such circumstances. But that is what is expected of every person engaged in public administration and particularly so in respect of public officers in positions of authority who have information that might expose serious or systemic issues of corruption, misconduct or maladministration.This investigation has firmly reinforced my view that the legislation under which I operate ought to be amended to give me the discretion to conduct investigations of this kind in public.I will explain why I continue to hold that view in Chapter 2. It has also reinforced my view that the existing legislative scheme by which I can investigate serious or systemic misconduct and maladministration in public administration is unnecessarily convoluted and clumsy. There is a tension between the Act which provides jurisdiction to investigate and the Acts which provide the powers during the investigation. That tension allowed for an argument to be made three persons that after carrying out an investigation in private I could not prepare a report that identified anyone unless those persons consented. The tensions could be resolved if the ICAC Act were modified to seamlessly include the powers of investigation and reporting in respect of misconduct and maladministration. I have previously proposed to the Government that the powers to investigate such conduct be found by a more direct route than is presently the case. The Government did not accept my proposal.I am hopeful that these issues will be considered again. SUMMARY OF FINDINGS AND RECOMMENDATIONS The summary of findings that follow should not be taken as a substitute for reading the report in its entirety. Only by reading the whole of the report can the reader understand the evidence that I considered and my reasoning. Without reading the report in its entirety context will be lost. The following summary does not represent all of the findings that I have made in my report. I have agonised over the findings. While I am satisfied that they are appropriate given the evidence and submissions before me, I am left with a level of discomfort. The extent to which senior persons in positions of authority outside of the Oakden Facility did not know about what was occurring at the facility was breathtaking. One might ask rhetorically how, in a modern society, an arm of government charged with caring for some of our most vulnerable citizens could provide such abysmal care over such an extended period of time without intervention. However, the evidence I have received makes it quite clear that, to a large extent, what was occurring at the Oakden Facility was unknown to ministers and chief executives. PAGE 17 OF 312 To me that is astonishing. They ought to have known. Nevertheless, each Minister who had responsibility for the Oakden Facility is responsible for its failures. So too is each Chief Executive Officer who presided over the agency responsible for the facility. So too is each executive or manager who knew of the woeful state of affairs and failed to take appropriate action to ensure that persons in authority, who were in a position and who had the power, ability and willingness to effect change, were informed. In the end, the only person who took positive action upon becoming aware of the true state of affairs at the Oakden Facility was the current Chief Executive Officer of the Northern Adelaide Local Health Network, Ms Jackie Hanson. It was Ms Hanson who commissioned the Chief Psychiatrist to conduct the review that resulted in the Oakden Report.3 Mrs Vlahos’s assertion that she was the one who commissioned the report is not supported by the evidence. In my opinion her assertions were over-reach. She did not lead in addressing the crisis. She followed. All but one Minister who had responsibility for the Oakden Facility over the past decade accepted some measure of responsibility for what occurred. Mrs Vlahos sought to deflect responsibility. While I find that each Minister who had responsibility for the Oakden Facility was responsible for its failures the evidence does not support a finding of maladministration in respect of any of them.4 Some may find that a surprising result. I will explain why I have come to that conclusion in the report. I will also comment upon ministerial responsibility and to what extent that has informed my decision making. I have found that Dr Aaron Groves, the then Chief Psychiatrist, played a critical role in uncovering the egregious standard of care provided to consumers at the Oakden Facility. His review was thorough and his report comprehensive. However, I have also found that he could have taken steps to investigate Mrs Spriggs’ complaint earlier in 2016. I have also found that he ought to have exercised his powers to make unannounced visits to the Oakden Facility before Mrs Spriggs made a complaint. Notwithstanding those findings, I am not satisfied that the evidence is sufficient for a finding of maladministration in respect of Dr Groves. I have considered the position of the Principal Community Visitor and made some observations about his powers to make unannounced visits to facilities such as Oakden. The Community Visitor Scheme for which he is responsible did not make any unannounced visits to the Oakden Facility prior to the commissioning of the Chief Psychiatrist and the review team to prepare the Oakden Report. The previous visits by the Community Visitor Scheme were, at least until the middle of 2016, not critical of the facility and the standard of care that was provided at the facility. I have made a recommendation in that respect. Ms Swan, who was the former Chief Executive of the Department for Health and Ageing, was an impressive witness who accepted accountability as Chief Executive for the conduct 3 The Chief Psychiatrist’s report entitled ‘The Review of the Oakden Older Person’s Mental Health Service’. 4 I have however made a number of adverse findings in respect of Mrs Vlahos all of which are set out in the report. PAGE 18 OF 312 of all of the staff at the Oakden Facility and within the Northern Adelaide Local Health Network (NALHN). I thought Ms Hanson was a very impressive witness. She volunteered that she was ultimately responsible for what occurred at the Oakden Facility. She did not attempt to deflect responsibility. I have found however that the evidence does not establish that Ms Hanson or her predecessor were aware of the matters that were subsequently found in the Oakden Report. Their responsibility arises because they were both at relevant times the Chief Executive Officer of NALHN. I have devoted a chapter in this report to the mechanisms that were in place to ensure that complaints, reports and incidents relating to the Oakden Facility were investigated and were escalated to the appropriate authority within NALHN. The evidence establishes that, in theory, there were sufficient mechanisms in place to ensure appropriate oversight in relation to complaints and reports and the investigation of incidents. In practice however these systems failed because they depended too much upon individual reporting and individual judgement. As a result nearly all of the information about the poor standard of care at the Oakden Facility was confined to those who worked there. The Oakden Facility was managed by a triumvirate. Three staff members, Dr Russell Draper, Ms Julie Harrison and Mr Kerim Skelton, had combined responsibility for the management of the facility.5 None of them had authority over the other two. They all had other responsibilities outside of Oakden. Nobody had overall control over the facility. Nobody had fulltime responsibility solely for Oakden. It was an extraordinary management structure. Dr Draper, Ms Harrison and Mr Skelton each sought to avoid responsibility by pointing the finger at the other two. Those three staff members, but particularly Ms Harrison and Mr Skelton, fostered a culture of secrecy within the Oakden Facility. They sought to keep matters ‘in-house’. Mr Arthur Moutakis, whose primary function was to manage complaints and reports about facilities within NALHN, played a part in fostering that culture. I have found that Mr Moutakis failed to appreciate the significance of the complaints he was receiving about the Oakden Facility. Rather than properly addressing the complaints, he appears to have adopted a course of simply accepting what he was told by staff at the Oakden Facility. When he became aware of the sub-optimal nursing care being provided at the Oakden Facility, he reported that to Mr Skelton. However, when he became aware that there had been no improvement, he did nothing. He ought to have. Similarly, Ms Pennery, who was most recently the Clinical Practice Consultant at the Oakden Facility, knew that serious concerns about nursing care where not being properly addressed. She had an opportunity to raise those matters with persons more senior within NALHN. She did not do so. She ought to have. 5 The periods during which each of them held responsibilities are outlined in this report. PAGE 19 OF 312 There is no evidence to establish that other executives within NALHN were aware of the extent of the problems that were outlined in the Oakden Report. However it is difficult to think that those who visited the Oakden Facility could not have realised how bad a facility it was. This has been a troubling aspect of the investigation. Why did not those from NALHN who visited the Oakden Facility form the same impression that I did? When they visited they would have seen consumers in Makk and McLeay sitting, perhaps under restraint, in a corridor or alcove with only a television to entertain them. The consumers would be there all day. But the evidence, as astonishing as it is, appears to be that no-one (perhaps with the exception of Dr Duncan McKellar) formed the opinion that the Oakden Facility was not fit for purpose until the Chief Psychiatrist and the review team commenced the review that ultimately led to the Oakden Report. NALHN was the public authority which, at least in more recent times, was responsible for the Oakden Facility. Its practices, policies and procedures resulted in a substantial mismanagement of public resources, being the Oakden Facility itself and its operations. I have found that NALHN engaged in maladministration in public administration. I have made 13 recommendations: Recommendation One: The Chief Executive of the Department of Health and Ageing (Chief Executive) review the clinical governance and management of mental health services within the overall clinical governance of each Local Health Network (LHN) to determine whether the management requirements of the Mental Health Act 2009 (MHA) fit within the overall health governance structures. Recommendation Two: The Chief Executive should, with the Chief Psychiatrist and the Chief Executive Officers (CEOs) of the LHNs, consider adopting management structures for the administration of the MHA to match those of overall mental health clinical governance structures, such that:  the officer responsible for the clinical mental health care of a facility within a LHN is also responsible for the administration of the MHA at that facility; and  the officer responsible for overseeing all clinical mental health care within a LHN has the responsibility for the administration of the MHA in that LHN.