“Just Trust Us” – McNamara v The Department of Human Services

Every Parent’s Worst Nightmare

In the case of McNamara v the Department Of Human Services (DHS) the Office of the Public Advocate (OPA), in this case Advocate-Guardian Mr Errol Jaquiery, objected to the release of documents under FOI by a mother concerned about the care of her son, because her motivation was to “expose the deficiencies in the care provided by the staff at a community facility”  which was operated by DHS.

Even though she was not the Guardian of her child, it seems like a profound alienation of her inherent rights as a parent to not even be permitted to enquire about the ongoing care of her son in a DHS community facility.

To ask about the care arrangements of one’s child is arguably even more fundamental a right than to visit a disabled child or family member; in this case for a mother to know that her child is being cared for adequately. The OPA, DHS and VCAT appear to be suggesting that this mother should not concern herself with the welfare of her child. The OPA, and Errol Jaquiery, the appointed Guardian for JEM, felt he was capable of being performing that task independently.

It is reasonable for anyone to assume that every parent’s greatest fear if their child is taken away from them, for whatever reason, and placed into a community accommodation facility would be that they could be mistreated. Their fears could be reasonably presumed to be compounded where they are vulnerable, such as was the case here.  Nellie Bindara McNamara’s child (referred to as JEM) suffered from Prader-Willis syndrome.

Mr Errol Jaquiery, appointed as the  child’s Advocate-Guardian saw it very differently, stating to the Tribunal that because the mother was not the Guardian of her child, his ongoing care needs should not be a matter she need concern herself with.  Mr Jaquiery opposed Nellie McNamara’s request for access to her son’s care notes whilst resident at Glengala.

In fact Mr Jaquiery testified that he believed that Nellie Bindara McNamara’s real motivation in requesting documents about her son’s care  was to “criticise” the caregivers at the facility, whom Mr Jaquiery, testified provided excellent and professional care to JEM“.

But the obvious question remains, if as the OPA contended, through Mr Errol Jaquiery’s testimony, that the relevant facility hadn’t done anything wrong, why would the documents be embarrassing if released?

The carers at the facility would assert that the public just isn’t capable of understanding the difficulties of caring for a person with complex needs. They would also assert that the people that they are caring for “just don’t understand“.

But did JEM understand? There was evidence that JEM had expressed a clear desire for the documents to be released to his mother, had the requisite capacity to give his informed consent to their release, and had indeed given his explicit authorisation in writing to this course of action.

He trusted that his mother would use the documents properly to advance his welfare and care needs.  This was established by a Mr Woodrow, an experienced DHS liaison officer, the liaison point with the facility JEM was a resident of, and for accommodation homes in general.

Using his expertise and experience, he went to great lengths to make enquiries of JEM’s capacity. He formed the opinion that JEM did have the capacity to both understand his own care notes, the notes his mother had requested relating to his care, and further that he consented to the facility disclosing them to her.

Mr Woodrow  went to the trouble of ensuring that there was a properly signed authorisation from JEM giving consent to the disclosure of his care notes to his own mother, and pro-actively sought out JEM’s wishes, telephoning him, establishing a connection with him. He went to great efforts to ensure he confirmed with JEM himself that he was fully capable of giving his consent to the release of his care notes to his mother and to ascertain his wishes in this regard.  JEM’s consent was  one of the major reasons VCAT took into consideration in arriving at their final decision to deny Nellie McNamara’s request for access to the notes under the Freedom of Information Act 1982.

So what happened to all of this information which was acquired by Mr Woodrow which affirmed that JEM had clearly already consented to the release of the notes?

It is unclear, however Mr Errol Jaquiery, JEM’s Advocate-Guardian appointed by VCAT, decided that JEM did not have the capacity to consent to the release of the notes, and that he was empowered as his Guardian to override his consent.

This is in fact what Mr Errol Jaquiery decided to do, asserting that it was in the best interests of JEM as release of the notes to his mother could have been detrimental to his interests.  He substituted his consent for JEM, testifying before VCAT that he did not believe JEM was capable of giving informed consent and that as his Guardian he objected to the release of the notes.

Mr Woodrow’s  well formulated and thoroughly investigated enquiries establishing JEM did have consent were ignored and when the matter came up for an internal DHS review, a DHS policy officer stepped in and merely proceeded on the basis that JEM did not have the capacity to consent in line with the views of the Mr Jaquiery from the OPA.

Mr Errol Jaquiery, whose role it was to be independent, advocate  and protect the welfare of persons under his Guardianship,  was very defensive of the facility, speaking in glowing terms of the care provided by the home, despite the fact that fully qualified community visitors had identified serious care concerns relating to JEM’s basic care. Mrs Tregale, who had identified and discovered the concerns, is a qualified carer with years of experience, including first hand knowledge of JEM’s individual care issues.

Community visitors play an important role in supporting the well-being of persons in residential and aged care facilities.  Ignoring their observations shows an element of contempt for the Government initiated program. It is particularly demoralising for the  individuals involved, in this case people like Mrs Tregale, who are probably amongst the most community minded people in society, involving themselves in sacrificing their time and using their training and qualifications to promote the welfare of persons resident in facilities. In many, subjecting themselves to sometimes unpleasant conditions to enhance the day to day lives of some of the most vulnerable people in society.

In short,  Errol Jaquiery of the OPA, and VCAT, relying on Jaquiery’s testimony, concluded that JEM just ‘didn’t understand’. Apparently neither the the  community visitor Mrs Tregale, the mother or JEM understood, nor did an experienced DHS officer Mr Woodrow.

We are left to trust in the OPA and persons such as Errol Jaquiery to make these judgements, decisions such as whether or not to release care notes of a son to a mother so that she can liaise with the institutional carers and monitor her son’s needs.

We are left to merely trust that the OPA understand and protect residents’ interests and welfare. This begs the question of how the public could really understand how the care of persons in DHS institutions is administered where documents relating to the care of vulnerable residents aren’t held up to public scrutiny, which is the whole purpose of the Freedom of Information legislation.

Quite apart from FOI legislation, there are very compelling and cogent reasons in favour of  disclosure of such documents, such as promoting open  discussion about individual and systemic issues about the care of persons in DHS operated community residential homes. In the past such scrutiny has often involved exposing deficiencies and health risks provided to such people arising from the failure to adhere to the law, DHS official policies and accreditation standards. Such scrutiny and detection of issues has not always emanated from the official watchdogs such as the Office Of  The Public Advocate and/or the DHS.

There is a very strong argument that the disclosure of documents such as the ones Mrs McNamara sought about her son’s care supports the public interest of disclosing information relating to the care of vulnerable people such as her son.

Based on Mrs Tregale’s findings, who supported McNamara’s concerns about her son’s care, her concerns about her son’s day to day care were well-founded. Tregale, a qualified carer, community visitor, who had worked at Glengala  identified a number of very critical basic care problems at the facility where JEM resided. Her testimony fell on deaf ears, was rejected by Errol Jaquiery without reservation, and ignored by the Tribunal.

Tregale and McNamara identified what they characterised as a compelling need to overcome a  “closed shop” approach by the DHS and the Office Of The Public Advocate.

The evidence which was revealed by Mrs Tregale indicating a lack of objectivity and independence on the part of Errol Jaquiery, or at the very least an attitude of  complacency.  Where OPA disagree with the findings of persons who are qualified carers and members of the community visitors program, who come forth and identify care issues, it is demoralising for all involved in the program to have their findings peremptorily dismissed and paid no respect.

There is an exemption under s33 of the Freedom of Information Act to the release of documents which an agency or decision maker can use to object to the release of documents which relate to the personal affairs of a person, in this case JEM.

As the Department of Human Services (DHS) objected to release along with Mr Errol Jaquiery of the OPA, the issue of whether they should be released or whether the request was “unreasonable” was left to VCAT to determine.

Under s13 of the FOI Act a person has a right to obtain access to documents unless the document is a document is wholly or partly exempt from disclosure under the Act. Section 33 of the Act states that a document is an exempt document under circumstances where it’s disclosure would involve the unreasonable disclosure relating to the “personal affairs” (as defined in the Act) of any person. However under s33 doesn’t preclude a request for access being granted just because a document includes matter relating to that person.

s33(2A) states that there are certain factors to be taken into account by an Agency when deciding whether or not the release of personal information would involve an unreasonable disclosure of information relating to the “personal affairs” of any person.

One of the considerations stated is whether or not the disclosure would, or would be likely to endanger the life or safety of any person.

s25 of the Act states that  where a decision is made by an agency to refuse a request for access to an exempt document on the grounds it is an exempt document, the agency must grant access to a copy of the document where it is practicable to make such deletions to the document, with the result that it is no longer legally an exempt document.

How does an Agency or decision maker such as the OPA, DHS or VCAT decide whether access to such a request is unreasonable? By what criteria does the decision maker use to arrive at a decision?

Under s33(1) there is a test which has developed through case law. The test of unreasonableness involves considering all the circumstances relevant to a particular case in addition to balancing two competing interests,  the right of personal privacy of an individual and the fundamental purpose of freedom of information legislation, which is to extend as far as possible, the right of the community to access information in possession of the Government.  The whole concept of FOI legislation is aimed at increasing transparency and openness, a key concept in administrative law.

In making any decision under s33 the decision maker has to consider the applicant’s interest, in this case Ms McNamara and the purpose for which she requires release of documents. She contended release of the care notes was likely to promote the public interest and stated that she would not liberally disclose the information were it released to her. This was to counter the main concerns of the OPA, articulated through Errol Jaquiery, to the effect that she would do this without sufficient concern for her son’s personal feelings and his right to privacy. The only problem was that Mr Jaquiery had arrogated to himself the right to determine JEM’s feelings, by stating that he believed it would be in JEM’s best interests.

It is worth examining Mr Jaquiery’s reasons for objecting to disclosure which he advanced to the Tribunal for opposing disclosure, reasons which were accepted.  Jaquiery was  very emphatic in stating that the notes should not be released to Ms McNamara. Mr Jaquiery was aware that there had been a background of disagreement between DHS and Ms McNamara about a number of issues relating to his care.

Ms McNamara was not confident that the OPA were acting in the best interests of her son in dealing with Glengala. The OPA gave evidence that they felt that Ms McNamara would use the notes to “challenge Glengala’s carers“, further that this would “upset JEM” (contrary to JEM’s views). The reason given by Jaquiery for the release of the notes being upsetting was that it could “confuse him“, and especially if the information were made public by McNamara that it would embarrass JEM.

Turning to the issue of embarrassment, it is pertinent to note that one of the reasons Jaquiery objected to the release of the notes was that McNamara had disclosed similar notes to a conference in the past relating to the involvement of the OPA in her son’s care. The OPA testified that they were concerned she would disclose the notes “to the world at large”.

The OPA also voiced their objections that she may indeed use the notes to advocate with her son’s carers about his care at Glengala.  To quote from the court record and Mr Jaquiery’s testimony, “she has set views on various issues as is likely to severely criticise staff and that “staff may be demoralised by her criticism“.  Mr Jaquiery stated that even though her son had stated “I don’t mind if she has them”, he was not capable of consenting and Mr Jaquiery was refusing consent on his behalf, as his Advocate. In doing so he was acting in JEM’s best interests he alleged to avoid him embarrassment.

A Mr and Mrs Tregale, in support of the mother’s request for access, gave evidence about their experiences as community visitors for six years and in that role explained that they  “had seen the good, the bad and the ugly in respect of the care of those with intellectual or multiple disabilities“. They had personally gained access to documents relating to the care needs of their own child which had enabled them to closely monitor their the quality of the care their son had received.

The Tregales had had listed a total of  28 areas of concern relating to basic care issues in a paper they had published which included poor food, non-reporting of injuries, beds being made up wet, dirty rooms and windows and loss of clothes.

The Tregales argued that they did not see the Office Of The Public Advocate as acting effectively as an independent third person or advocate in their experience and there had been a pressing need for them to advocate in relation to their own son’s care issues.

Mrs Tregale, a qualified carer and community visitor testified on issues relating to JEM’s care, namely that it hadn’t met DHS standards, law, policies and values. Mrs Tregale was not without credentials having attained a certificate in caring and also worked for four years as an “undercover police officer“, detecting many serious failings.

She was well positioned to comment upon and evaluate the deficiencies as she has witnessed first hand the care of JFM. She noted that JFM was dressed so poorly that he could have passed for a vagrant. This was in contrast to the manner in which he was dressed on occasions when his mother visited him.

She was clearly in a very good position to provide insight to the Tribunal regarding why it was clearly desirable and in the public interest for parents and families such as Ms McNamara to have access to the records relating to the care of vulnerable persons living behind closed doors without any public scrutiny.

There was significant evidence that Ms McNamara’s fears were well founded ones.

Mr Errol Jaquiery was staunchly opposed to the release of the notes and his reasons for doing should cause us all to consider them.  The dominant theme of Mr Jaquiery’s concerns revolved around being concerned that Ms McNamara would publicly release the notes “to expose deficiencies in the care DHS provides“.

Mr Jaquiery went so far as to speculate that the notes if released could cause JEM distress to the point where it may cause him to wish to spend less time with his mother.

Mr Jaquiery was very defensive of Glengala staff who he stated in his view provided “excellent and professional care to JEM despite the berating they receive from Ms McNamara“. One of the separately stated reasons for his opposing the release of the notes was indeed that Ms McNamara had “berated Glengala staff”. Whilst it appeared that there was significant concern about possible embarrassment to Glengala staff for any deficiencies the notes may disclose Mr Jaquiery stressed that the embarrassment he was concerned about was only embarrassment to JEM himself, not the facility or staff at Glengala, and that it would be JEM who could be detrimentally impacted by distress and embarrassment if the notes were disclosed.

There were also strong themes which were of a similar nature expressed by Glengala staff in previous decisions of VCAT from DHS staff about their personal concerns and staff concerns that the information might be used to express negative views about the care of her son and Glengala staff.

In arriving at their decision not to release the notes to Ms McMillan VCAT relied upon the reasons of Mr Jaquiery to the effect that the release of the notes would have a detrimental impact on JEM, and that the release to use Mr Jaquiery’s words would embarrass and distress him.

Concern was also expressed that McNamara would use the notes, even if for good intention,  to systemically try to address and advocate for change in care issues in community homes.

The Tribunal stated they were concerned that Ms McNamara would use the notes to discuss her son’s care needs with the staff and would be insensitive in the way she did this.

The Tribunal accepted that the independent third party, the OPA, namely Mr Jaquiery should be able to advocate for JEM.

Whilst we must trust Government and officials who are appointed to uphold the welfare of vulnerable persons. It is for this very reason that the public should also be very wary and alert to situations where Governments and public officials cross the line, particularly when it comes to issues which are very important to them.

Australia is a democracy and therefore theoretically the people are the sovereigns who delegate to the Government many important critical activities. But it goes without saying that some degree of supervision is not only prudent, but that we all have a responsibility to be vigilant.

Every person has parents, children, grandparents, aunts and uncles who are in nursing homes and under care and no longer have any control over the direction of their own lives, being under various forms of protection such as Guardianship or Protection Orders.

Common sense should tell us that we are all headed there ourselves one day, whether temporarily or permanently. Therefore we can’t afford to be complacent and ignore or be indifferent to the plight of people who are in care, to concern ourselves with whether they are generally not only being cared for well, but that any problems, individual and systemic, which will almost  invariably  arise are properly monitored and corrected.

“Just trust us” just won’t do!







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