Ground 3 - failure to consider the 'proper requirements' of s 23.8 of the User Rights Principles 1997
141 The third ground that Ms McGough seeks to pursue by way of judicial review is that the decisions failed to consider the 'proper requirements' of s 23.8 of the User Rights Principles 1997. I will proceed on the basis that Ms McGough alleges error in the manner that s 23.8 was applied and considered by the delegates, in that the section properly understood provided her with a right of access at any time and regardless of other competing rights. Ms McGough contends that, having regard to s 23.8, there was no lawful basis upon which the Approved Provider could have denied her access, as the care recipient representative to her mother, or imposed conditions or time frames around when she could visit her mother.
142 This contention is essentially one of statutory construction.
143 Some of the relevant statutory provisions are set out above. In particular (at [56]) I have set out s 54.1 of the Aged Care Act, which required that an approved provider provide care and quality to a care recipient consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles 1997.
144 Also relevant is s 56.1 of the Aged Care Act, which is headed 'Responsibilities of approved providers - residential care'. Section 56.1(j) provided at the time that an approved provider is required 'to allow people acting for care recipients to have such access to the service as is specified in the User Rights Principles'. Section 56.1(l) provided that the approved provider is 'not to act in a way which is inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles'.
145 Section 23.8 of the User Rights Principles 1997, the provision central to this ground, addresses access by a person acting for a care recipient, and is set out at [57] above, but I will repeat it here for convenience:
If a care recipient, or a care recipient's representative, has asked a person acting for care recipients to assist the care recipient, the approved provider must allow the person to have access to the residential care service at any time.
(emphasis added)
146 I should note that it was not in issue that Ms McGough's mother was a care recipient and Ms McGough was her representative for the purpose of the provision.
147 Section 23.12, headed 'Consistency with rights and responsibilities', provides:
Rights and responsibilities
The rights and responsibilities of care recipients include the rights and responsibilities under the Charter of Residents' Rights and Responsibilities set out in Schedule 1.
148 Schedule 1 to the User Rights Principles 1997 comprises the Charter. It provides:
A. Each resident of a residential care service has the right:
• to full and effective use of his or her personal, civil, legal and consumer rights
• to quality care appropriate to his or her needs
• to full information about his or her own state of health and about available treatments
• to be treated with dignity and respect, and to live without exploitation, abuse or neglect
• to live without discrimination or victimisation, and without being obliged to feel grateful to those providing his or her care and accommodation
• to personal privacy
• to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction
• to be treated and accepted as an individual, and to have his or her individual preferences taken into account and treated with respect
• to continue his or her cultural and religious practices, and to keep the language of his or her choice, without discrimination
• to select and maintain social and personal relationships with anyone else without fear, criticism or restriction
• to freedom of speech
• to maintain his or her personal independence
• to accept personal responsibility for his or her own actions and choices, even though these may involve an element of risk, because the resident has the right to accept the risk and not to have the risk used as a ground for preventing or restricting his or her actions and choices
• to maintain control over, and to continue making decisions about, the personal aspects or his or her daily life, financial affairs and possessions
• to be involved in the activities, associations and friendships of his or her choice, both within and outside the residential care service
• to have access to services and activities available generally in the community
• to be consulted on, and to choose to have input into, decisions about the living arrangements of the residential care service
• to have access to information about his or her rights, care, accommodation and any other information that relates to the resident personally
• to complain and to take action to resolve disputes
• to have access to advocates and other avenues of redress
• to be free from reprisal, or a well-founded fear of reprisal, in any form for taking action to enforce his or her rights.
B. Each resident of a residential care service has the responsibility:
• to respect the rights and needs of other people within the residential care service, and to respect the needs of the residential care service community as a whole
• to respect the rights of staff and the proprietor to work in an environment free from harassment
• to care for his or her own health and well-being, as far as he or she is capable
• to inform his or her medical practitioner, as far as he or she is able, about his or her relevant medical history and current state of health.
149 The drafting of s 23.8 is not without difficulty. For example, the delegate has assumed for the purpose of the First Decision that the section provides that a care recipient's representative must have access to the care recipient at all times. Strictly speaking, that is not what it provides. It provides that if the care recipient or a care recipient's representative has asked a person to assist the care recipient, then that person must have access. It anticipates access by a third party to assist. Arguably, however, the provision might apply where the care recipient has asked the care recipient's representative to assist: that is, the provision might apply where the 'person' and the 'care recipient's representative' are one and the same person. However, it is unnecessary to develop this further because the Commissioner has proceeded on the basis that, subject to what follows with respect to the interpretation of 'at any time', s 23.8 applied to grant Ms McGough a right of access.
150 There is a further difficulty with the drafting of s 23.8. Is it intended that the provision applies to a general request for assistance from a person made, for example, at the time of the care recipient's entry into residential care? Or is it intended to address a particular request for assistance from a person that is required at a particular time? Or does it extend to both scenarios? Again, it is not necessary to develop this issue further. In light of the Commissioner's acceptance that the provision on its face applies, it is also implicit that the Commissioner accepts that at some point Ms McGough's mother asked Ms McGough to assist her, and the Commissioner makes no point about the timing of any such request.
151 However, the Commissioner does not accept that the words 'at any time' are to be read strictly so as to trump other rights of care recipients and obligations of the approved provider.
152 It is apparent that although the words 'at any time' are not qualified by any express discretion or any reference to compliance with other procedures, consents or competing provisions, a strict interpretation of those words might leave no room for compliance by the approved provider with its responsibilities to care recipients if a practical conflict arose. For example, another resident's right, provided by the Charter, 'to live in a safe, secure and homelike environment, and to move freely both within and outside the residential care service without undue restriction', might be compromised if a person visits the nursing home without warning, at any time of the day or night, and interrupts staff in their duties or behaves in a threatening manner towards residents or staff. Similarly, a care recipient's rights to continue their cultural and religious practices or their right to privacy might be interrupted or compromised by a person visiting at the request of another care recipient but at times that are not considerate of the needs of others, a compromise that must also be assessed having regard to the urgency or otherwise of the reason for the request for assistance. Safety and issues relating to workforce conditions may also arise, and there are other scenarios that can be envisaged where the rights of the residents in a nursing home might be compromised by unconditional access.
153 Ms McGough essentially contends that s 23.8 permitted her unfettered access to her mother at any time and in any circumstances. The Commissioner contends that to accept such a construction would be to give pre-eminence to s 23.8 over every other provision in the Aged Care Act, and to interpret it in a way that does not have regard to the scope, object and purposes of the Act.
154 It seems to me that the Commissioner's submission is to be preferred.
155 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority of the High Court stated:
[78] … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
156 The Commissioner submitted that the phrase 'at any time' must be interpreted within the object, scope and purpose of the Aged Care Act and Principles. I accept that this argument is sound, having regard to the procedural nature of the provision and the purpose of the conflicting provisions. I do not consider that the object for which access is to be permitted - to assist (without particularity) the care recipient - is such that it directs an interpretation that the approved provider is compelled to exercise an obligation to grant access at any time upon any request (no matter how insignificant the request for assistance may be) without regard to other competing objects. An approved provider has a statutory obligation to provide care and services of a quality to a care recipient consistent with the rights referred to in the Charter. In my view, the words 'at any time' are clearly intended to extend the potential hours of access beyond normal business hours, but they are to be read so as to permit an exercise of discretion on the part of the approved provider that reflects both the nature of the request for access and other objects and rights that may be in play in the particular circumstances and which might need to be afforded greater priority at the time. There are examples where 'must' in a provision that imposes an obligation has been construed to provide for a discretion (Director of Public Prosecutions v George [2008] SASC 330; (2008) 102 SASR 246), but in any event it seems to me that the phrase 'at any time' where used in s 23.8 of the User Rights Principles 1997, and having regard to the other statutory obligations on the part of the approved provider, is to be read broadly so as to provide for necessary limitations where another object must be accorded greater priority. Otherwise, although the object of providing access upon request might be met, other objects of the Aged Care Act are likely to be defeated.
157 The respondent submitted that the Approved Provider had the power to deny Ms McGough access, and to impose some restrictions on her access to her mother, yet still be compliant with the requirements of s 23.8.
158 In the Recommendation (paras 37-43), the delegate of the Aged Care Commissioner considered the question of a breach of s 23.8 of the User Rights Principles 1997 and concluded, having regard to other rights, responsibilities and requirements under the Aged Care Act and Principles, that it was reasonable for the Approved Provider to have proceeded as it did, that is, by initially denying access and then allowing restricted access subject to conditions. The delegate was evidently conscious of competing rights and obligations in construing s 23.8. The delegate took into account that the Approved Provider was required to have in place strategies to manage Ms McGough's visits. That approach does not lack a reasonable basis. The basis is to be found in the competing obligation on the part of the Approved Provider to ensure the safety and quality care to all care recipients. Those strategies, by the time of the Recommendation, permitted Ms McGough to visit her mother at certain times. The delegate of the Secretary, by way of the Second Decision, considered and adopted that Recommendation. It was a matter for the delegates to weigh and assess the nature of any risk posed by Ms McGough's access, having regard to all of the evidence. While a different decision may have been open on the evidence, such an argument invites the Court to embark on a review of the merits, and as already observed, that course does not properly arise on judicial review. Whilst ground 3 is perhaps the strongest of the grounds of review, raising as it does a construction point, I do not consider it has any real prospect of success or any sufficient merit.
159 Finally, in light of the conclusions I have reached as to grounds 1, 2 and 3, I am not satisfied that there is any support to be found in the matters addressed by these reasons for Ms McGough's generalised assertion in her submissions of an improper exercise of power.