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TORTS ASSIGNMENT LWZ116 ADVICE ON POTENTIAL CLAIMS The Estate of Bob Spriggs v NT Government Barbara Spriggs v NT Government Kerry Spriggs v NT Government Clive Spriggs v NT Government

1 Introduction The residents of the Oakden Nursing Home were vulnerable, frail and suffering from mental health conditions. They were neglected, abused, and lived in a state of disgrace. Oakden Nursing Home has closed following countless reports of failings, complaints and an investigation from the ICAC. Some criminal charges have been laid against staff members and another resident; however, many victims and families of victims are constantly reliving the nightmare of Oakden Nursing Home. This advice will discuss the prospect of tortious claims against the Northern Territory Government arising from the negligent treatment of resident Bob Spriggs at Oakden Nursing Home. The Northern Territory Government is the proprietor of Oakden Nursing Home. The Northern Territory had a non-delegable duty to the residents of Oakden Nursing Home, which they can be liable if injury or death is caused due to a breach of that duty. The scope of this advice discusses the potential for the plaintiffs to take civil action for the absence of an established duty of care, what damage was caused by the breach, and the likelihood of a successful claim against the Northern Territory Government using Northern Territory laws and applicable case law.

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2 Summary of Facts The ICAC report into The Oakden found several problems within the facility including a lack of activities for the consumers, excessive use of restraints, over medicating consumers, dilapidated facilities with outdated and derelict equipment, poorly trained staff, shortages of staff, mismanagement and failures of clinical records.1 In February 2007, The Oakden had received accreditation for twelve months, during this year five support visits were conducted by the Federal Government assessing Oakden as being compliant. In the same year, the Commonwealth conducted an unannounced review in response to a complaint. Following this review, there were Commonwealth sanctions placed upon the facility, there was a revocation of funding and a ban from accepting new residents for six months. In June 2014, there were reports from a staff member concerned about violating human rights from the use of restraints. In January 2016, Bob Spriggs was admitted to The Oakden, within one week of being a patient at Oakden he was transferred to hospital due to his rapid deterioration. He was later sent back to The Oakden, to be given ten times the prescribed amount of his medication on three occasions. He had bruising which indicated he was most likely restrained. “In June 2016 Mr Corcoran emailed Dr Groves in relation to an overmedication incident, bruising that had been suffered by Mr Spriggs and an inappropriate request about payment. Specifically, Mrs Spriggs was seeking an explanation regarding the bumps and bruises on Mr Spriggs, the large bruise on his hip and the total falls he had during his time at The Oakden. Mrs Spriggs told Mr Corcoran that The Oakden

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625 Evidence to the Independent Commissioner Against Corruption Oakden Maladministration Investigation, Adelaide, 6 November 2017, 52.1-3, 29.22-23, 73.9-13 (Russell Draper).

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Facility staff only contacted her following one fall and she thought there may have been other instances of falls.”2 ICAC PG 91 P.5 In July 2016, Bob Spriggs' family complained to SA Health, with the help of the Community Visitors Scheme expressing concerns about the treatment of Bob Spriggs. Later in the year, they received an apology. In January 2017, the state mental health minister Leesa Vlahos commissioned a review of The Oakden, which was directed by chief psychiatrist Dr. Aaron Groves, into the events of 2016. The following day Bob Spriggs' story aired on ABC, Bob's wife discussed how the treatment she had witnessed and her suspicions of restraint use. In Feb 2017, the ABC had aired a story of the staff member that made a complaint in June 2014 about the violation of human rights when using restraints. The following day the mental health Minister conducted an assessment contact with Oakden.3 In March 2017, The Commonwealth announced a full audit of The Oakden as a result of the inspection and would be sharing the results with patients and families and staff. Following the audit, later in March, the Federal Government issued more sanctions due to concerns about the treatment of the patients and medication management. A nursing advisor was also ordered to help bring The Oakden up to standard. In May 2017, SA Independent Commissioner Against Corruption Bruce Lander launched a maladministration inquiry into SA Health's management of The Oakden. In September 2017, The Oakden Closed down.4 In February 2018, the Independent Commissioner Against Corruption report was released. 2

[ CITATION Bru18 \l 1033 ]

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[ CITATION Nic18 \l 1033 ]

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[CITATION Mat17 \l 1033 ]

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One may conclude from the above that there had been clear systemic failures within the management of The Oakden and the treatment of its residents. You conclude at the end. A better construction of this sentence would be ‘This paper will argue that there has been systemic failures in the management of Oakden which ultimately led to tragic consequences.

3. Assumptions Bob Spriggs – It can be assumed that Bob Spriggs, contracted fatal pneumonia consequently following the large overdose of Seroquel.5 It can also be assumed that the extreme bruising was a direct result of the use of restraints. It can be is assumed that Barbara Spriggs, Kerry Spriggs and Clive Spriggs have all suffered depression and post-traumatic stress disorder from witnessing the neglect and mistreatment of her late husband Bob Spriggs. Kerry Spriggs – It can be assumed that Kerry Spriggs has been diagnosed with depression and post-traumatic stress disorder from witnessing the neglect and mistreatment of her late father Bob Spriggs. Clive Spriggs – It can be assumed that Clive Spriggs has been diagnosed with depression and post-traumatic stress disorder from witnessing the neglect and mistreatment of his late father Bob Spriggs.

4. Summary of issues Did the Northern Territory Government owe a duty of care to Bob Spriggs? 5

[ CITATION Jon15 \l 1033 ]

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There is an established duty of care owed to Bob Spriggs as a resident of The Oakden. As The Oakden is owned and operated by the Northern Territory Government they have a non-delegable duty to the residents. Was the duty of care breached? Did the Northern Territory Government cause Barbara, Kerry and Clive Spriggs psychiatric harm? The “ordinary principles of the tort of negligence, unhindered by artificial constrictions”, determine the existence of a duty of care in respect of negligently inflicted psychiatric injury (nervous shock).6 As the approach towards novel cases set out in Sullivan v Moody,7 as well as the reasonable foreseeability of psychological injury, there must be an established relationship between the parties and that the defendant should have had the plaintiff in contemplation as a person closely and directly affected by the defendants conduct.8 Therefore Barbara, Kerry and Clive are permissible to pursue damages for their psychiatric injury.

5. Analysis 5.1 Did the Northern Territory Government owe a duty to Bob Spriggs and was that duty breached? Bob Spriggs suffered with Parkinson’s disease, Lewy body dementia and Capgras syndrome and was ordered by the SA Civil and Administrative Tribunal to be admitted as an in-patient at The Oakden which is classed 6

Tame v New South Wales [2002] HCA 35

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Sullivan v Moody [2001] HCA 59

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as an older person’s mental health facility. There was a higher standard of care required for the residents of The Oakden, they were not in a hotel; they were in a medical facility which demonstrates the nature and extent the government’s managerial control and duty over Bob Spriggs. As the Northern Territory Government owned and managed the facility, they held certain powers. The power they held was non-delegable, that power extended to an established duty of care for Bob Spriggs. They were accountable through the law of professional negligence for not exercising those powers sufficiently. Expand here on the meaning of non-delegable duty how it applies and cite relevant case law. The duties that were owed to Bob Spriggs were also breached, by an implied unreasonableness of the inaction of the Northern Territory Government. Finding 4 in the ICAC report found “that there was a failure of governance, particularly clinical governance, at The Oakden OPMHS. This failure was across all components of a Clinical Governance Framework.” P118 para 6

5.2 Reasonable Foreseeability There was a reasonable foreseeability in the harm caused to Bob Spriggs, it is not farfetched or fanciful to assume that having inexperienced, poorly trained staff would result in a breach in duty of care. In Wyong Shire v Shirts Case Mason J Stated "[A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable."

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I refer to Wisher v Essex Area Health Authority [1987] QB 730 (CA) (reversed on other grounds). A majority of the court held the view that a patient treated in a public hospital was entitled to expect the standard of 9

Wyong Shire Council v Shirt[63] 6

care of the reasonable medical practitioner occupying the particular post and it was no excuse that the hospital authority was able to fil the position with junior and unexperienced staff who require the experience in order to become fully qualified. Finding 3 in the ICAC report stated “The available staffing profile showed a reliance on Personal Care Assistants and a shortage of trained Mental Health Nurses. This was most apparent in the small number of Enrolled Nurses, Assistants in Nursing and Registered Mental Health Nurses. However, this apparent shortfall is more profound when taking into account the poor levels of skill and training of many of the Nursing staff.” Pg 119 para 3

5.3 Causation The evidence from the ICAC report discussed supports heavily the level of negligence and mistreatment Bob Spriggs and the other residents at The Oakden endured. Had the staff been trained at a level appropriate to the care the patients required, and the model of care been in line with the standards required for an older person’s mental health facility the negligent actions would have not happened. Finding 1 in The Oakden ICAC Report showed “The Model of Care that is provided at Oakden is not in keeping with current best practice for the people they intend to serve who have functional mental illness and there is no relationship between best practice for people with Tier 6 and 7 BPSD and what is currently provided.”10 Pg 116 para 4 icac Bob Spriggs would have had the unexplained bruising requiring hospitalisation, he would not have overdosed on ten times the amount of Seroquel prescribed to him, he wouldn’t have suffered weakened lungs as a result of the overdose, contracted fatal pneumonia and passed away. 10 [ CITATION Bru18 \l 1033 ]

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Had Bob Spriggs not have passed away in such an awful way, his family would not have suffered psychiatric injury. The Northern Territory Government failed to act upon the numerous complaints the many years leading up to the death of Bob Spriggs, even failing to act when a staff member made a complaint about the excessive use of restraints, stating that it may be a violation of human rights. They also failed to ensure that all staff were adequately trained and that the ratio of qualified staff rostered on duty was satisfactory. In the ICAC report “Dr McKellar said that he told Minister Vlahos and others that there was a regime of illegal seclusion and restraint at the Oakden Facility. He said in 2016 there were more incidents of mechanical restraint at McLeay than the rest of mental health services in the adult sector across the rest of country”11

5.4 Did the Northern Territory Government owe a duty to Barbara and Kerry Spriggs and was that duty breached? Novel duties assessed in Australia, have adopted the approach that the High Court has applied in Sullivan v Moody. The plaintiff needs to establish that they are suffering a recognised psychiatric injury, caused by the reasonably foreseeable negligence by the defendant.12 You need to really flesh out here how the law on psychiatric injury has developed from the early days where compensation was conditional on the psychiatric injury arising from a physical injury (Neither Barbara, Kerry nor Clive have suffered a physical injury and mere sorrow or upset is not enough) – caselaw ‘fearing for the safety of a close relative’ (Hambrook v Stokes [1925] 1 KB 141); ‘witnessing the immediate aftermath of an accident involving a loved one’ (Jaensch v Coffey (1984) 155 CLR 549 at 580 per 11 Evidence to the Independent Commissioner Against Corruption Oakden Maladministration Investigation, Adelaide, 20 November 2017, 4.20-34, 12.25-38 (Duncan McKellar) 12 Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404

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Deanne J) culminating in Tame v New South Wales; Annettes v Australian Stations Pty Ltd (2002) 211 CLR 371 where the court further expanded the scope of actions by holding that the previous requirements of ‘normal fortitude’, ‘sudden shock’ and direct perception and immediate aftermath’ were not prerequisites to a successful mental harm action. The NT still relies on the common law for this area although ‘personal injury’ is defined in s 4 of PILDA as including psychiatric injury. Drawn from our assumptions, it would be reasonable for an ordinary person that has watched their father/husband be neglected and mistreated in such a way that resulted in his death to suffer psychiatric illness at some degree. There is factual evidence from the ICAC report indicates that Kerry has occasioned a psychiatric injury. “Kerry has experienced significant trauma relating to the way in which her father was cared for while in Oakden and is engaged in psychological therapy to work through this trauma”.

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The relational proximity between Barbara, Kerry and Clive Spriggs would not be in dispute as they are the immediate family of Bob Spriggs and had a close and loving relationship. It could be argued that drawn from the Donoghue v Stevens case the neighbour principal would apply, placing duty of care on the Northern Territory Government to have contemplated the plaintiffs at the time of committing the act or omission.14

5.5 Likelihood of a successful claim The facts clearly establish that the duty of care existed and was breached, the risk of harm was reasonably foreseeable by a reasonable person. With 13 Letter from Maurice Corcoran to Minister the Hon Leesa Vlahos re:

Oakden Services for Older People, 14 October 2016 14 Donoghue v Stevenson [1932] AC 562 at 580

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medical evidence to support the extent of Barbara, Kerry and Clive’s psychiatric injury on the balance of probability, it is likely that the claim would prove successful.

6 Conclusion Bruce Landers final findings of the ICAC report stated, “I do not think it can be disputed that the Oakden Report found that consumers at the Oakden Facility were provided with sub-optimal care in every respect.”15 Suboptimal care was described as care that is adjudged not to meet a standard considered reasonably appropriate in the circumstances. This constitutes a breach of the standard of care appropriate to the duty of care owed to Bob Spriggs, resulting in the damage caused to him and the consequential psychiatric injury caused to Barbara, Kerry and Clive Spriggs.

15 [ CITATION Bru18 \l 1033 ] page 240 para 2

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BIBLIOGRAPHY A Articles/Books/ Reports https://www.agedcareguide.com.au/talking-aged-care/oakden-report-it-should-not-have-happened-itmust-never-happen-again

Alexandra Stopford February 28, 2018 https://www.sahealth.sa.gov.au/wps/wcm/connect/4ae57e8040d7d0d58d52af3ee9bece4b/Oakden +Report+Final+Email+Version.pdf?MOD=AJPERES&CACHEID=ROOTWORKSPACE4ae57e8040d7d0d58d52af3ee9bece4b-mN5zo0W The report of the Oakden Review - SA Health (Govt of SA) 10th April 2017

https://icac.sa.gov.au/system/files/publications/ICAC_Report_Oakden.pdf A REPORT BY THE HON. BRUCE LANDER QC INDEPENDENT COMMISSIONER AGAINST CORRUPTION, Published 28 February 2018

https://agedcare.royalcommission.gov.au/hearings/Documents/transcripts-2019/transcript-11february-2019.pdf Aged Care Royal Commission Transcript Brett, J. (2015, June 1). Concerns about quetiapine. Retrieved from Australian Prescriber: https://www.nps.org.au/australian-prescriber/articles/concerns-about-quetiapine-1# Coleman, M. (2017, September 22). Oakden nursing home closing as last two residents moved out of controversial facility. Retrieved from ABC News: https://www.abc.net.au/news/2017-0922/oakden-closed-as-last-two-residents-moved-out/8974156 Donnellan, N. G. (2018, February 28). Makk and McLeay wards at Oakden Older Persons Mental Health Facility: A history of problems. Retrieved from ABC News: https://www.abc.net.au/news/2017-04-20/makk-and-mcleay-nursing-home-history-ofproblems/8454856

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B Cases

ROGERS v. WHITAKER (1992) 175 CLR 479 19 November 1992 Page 1 para 5. Duty of care medical practitioner has higher duty. A duty of care exists between a Professional and their Client

C Legislation

D Other https://www.youtube.com/watch?v=auI4rtc1oXs Shocking cases of abuse and premature deaths in nursing homes. Four Corners – ABC News 27TH September 2018

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