Inquest Into The Manner And Cause Of Death Of Brett Ponting

IN THE CORONER’S COURT ) IN CANBERRA IN THE ) CD 182 OF 2000 AUSTRALIAN CAPITAL TERRITORY ) INQUEST INTO THE MANNER AND CAUSE OF DEATH OF BRETT PONTING Brett Ponting was born on the [redacted] 1967 at Penang, Malaysia, the only child of Reginald James Ponting and Heather Ponting. Mrs Ponting suffered during the pregnancy from toxaemia and Brett was born prematurely. He was diagnosed with a heart condition and subsequently was further diagnosed with some brain damage, which has caused intellectual disabilities.

Mr Ponting was a member of the Australian Army and was stationed in Malaysia at the time of the birth of Brett. The family returned to Australia some six months or so after the birth of Brett and came under the care of the Royal Children’s Hospital in Melbourne.

The family came to reside in the Australian Capital Territory in 1971 when Brett was four years old.

Brett was severely disabled and became involved with providers of services for disabled persons at a very young age.

Brett originally attended a pre-school at Koomarri and then attended Cranleigh Special School.

He continued at Cranleigh Special School until he turned sixteen, as a result of his chronological age he was no longer able to attend Cranleigh Special School and thereafter attended Koomarri until he was twenty years of age.

Brett resided at home with his parents until about 1977 when the Bruce Hostel was opened. Mrs Ponting in her evidence and in her various statements describes the agony of the decision making process that the family engaged in before the decision was made to have Brett reside at Bruce Hostel.

Bruce Hostel was ultimately closed and in 1993 Brett moved to [redacted] Street, Waramanga.

This was a residence provided by ACT Disability Services and Mrs Ponting in her evidence indicates that she and other parents had a substantial role in the design of and the provision of amenities at the residence.

44 Nangor Street was thereafter the home of Brett Ponting but he had very substantial and regular contact with his mother and father and his step-mother, Cynthia Ponting, and her family.

Nangor House was a house in which staff were employed on a 24 hour 7 day a week basis to provide care and support for Brett and other residents.

On the 6th August 2000 Brett was placed in the bath, as was a normal practice by the two on duty workers Robert John Fraser and Jack Singh Parmar. At about 5.30pm Mr Fraser returned to the bathroom and discovered Brett unconscious in the bath. He was assisted by Mr Parmar to remove Brett from the bath and CPR was immediately commenced. An ambulance was called at about 5.38pm and arrived at 5.44pm. Brett was taken to the hospital where he arrived at about 6.23pm.

He was subsequently admitted to the Intensive Care Unit. It is clear from the evidence that his condition at that time was terminal.

A decision was made by Mr and Mrs Ponting and Cynthia Ponting to allow the withdrawal of life support systems and at 12.30pm on the 7th August, Brett Ponting was declared dead. He was 33 years of age.

The death of Brett Ponting became the subject of an inquest under the provision of the Coroners Act 1997.

THE ROLE OF THE CORONER The Coroner’s Act 1997 provides in section 13, where relevant, as follows: "A coroner shall hold an inquest into the manner and cause of death of a person who – …….

(b) is found drowned" Section 52 states: "(1) A coroner holding an inquest shall find, if possible – a. the identity of the deceased; and

(b) when and where the death occurred; and b. the manner and cause of death; and c. in the case of a suspected death of a person – that the person has died.

2. …….

3. At the conclusion of an inquest or inquiry, the coroner shall record his or her findings in writing.

4. A coroner may comment on any matter connected with the death, fire or disaster including public health or safety or the administration of justice." Section 57 states:

5. A coroner may report to the Attorney-General on an inquest or an inquiry into a fire held by the coroner.

2. ……

3. A coroner may make recommendations to the Attorney-General on any matter connected

with an inquest or inquiry, including matters relating to public health or safety or the administration of justice." It is important to reiterate that the inquest into the death of Brett Ponting is limited by reasons of the provisions of the Coroner’s Act. The inquiry conducted by me was not an inquiry into all of the circumstances of the running and administration of 44 Nangor Street, Waramanga nor indeed into the running and administration of ACT Disability Services. While it is clearly necessary to inquire a little outside the actual events of the evening of the 6th August, 2000 it is not the role of the Coroner to do other than conduct an inquest within the limitations enunciated in the Coroner’s Act.

[redacted] STREET WARAMANGA [redacted] Street Waramanga (Nangor House) is a property owned by ACT Housing and administered by the Disability Program which is part of ACT Community Care. The Director of the Disability Program at all relevant times was M/s Lynette Grayson.

M/s Grayson in her evidence indicated that the Disability Program provided accommodation support service in 61 residences throughout the Australian Capital Territory. She further indicated that, as at November 2000 there were 185 persons in receipt of accommodation support service. This program involves the provision of housing and also support and care of varying levels.

Nangor House was opened in 1993 and was initially occupied by Brett and a number of other residents. As at August 2000, Nangor House was the residence of Brett and 3 other men whom I shall refer to as T, R and A. Each of these men had intellectual or physical disabilities and required full time care and support.

The house consisted of 4 bedrooms, 2 bathrooms, a lounge/family room and a room used as an office by the carers in the house, in addition there was a laundry and room described as a music room.

The staffing arrangements at Nangor House were that there were two workers present during most of the day and one worker present during the night.

The management of the house while under the ultimate control of M/s Grayson was more particularly under the control of a regional manager in the case of Nangor House, a M/s Penny Hayman. M/s Hayman had overall responsibility for a range of services and also for a number of clusters of accommodation. Each cluster of accommodation, which varied in numbers, was more directly managed by an accommodation support manager. The accommodation support manager in relation to Nangor House at the relevant time was M/s Tracy Leeanne Henderson. The direct management of Nangor House was the responsibility of a Disability Support Officer (DSO 2) and at the relevant time this position was held by M/s Judith Ellen Hofmeier.

The remaining staff of Nangor House were Disability Service Officers Level 1 (DSO1) who were either permanent officers of ACT Disability Services or employed casually by ACT Disability Services or from time to time obtained from agencies who provided support workers within the Disability Services area of responsibility.

THE ADMINISTRATION OF NANGOR HOUSE Nangor House was administered under the Disability Program which is part of ACT Community Care and had been part of ACT Community care since July 1996. M/s Grayson is the Director of ACT Community Care, Disability Program.

M/s Grayson in her evidence described the Disability Program in the following terms: "The ACT Community Care Disability Program has designed its policies and procedures to comply with the ACT Disability legislation and the National Disability Service Standards, and bases its operation on the following express values and underlying philosophy: Autonomy: Respect for the dignity of all people as individuals who have the right and responsibility to make, or at least to participate in all decisions which affect their lives; Equity: The belief that people with disabilities have the same rights, responsibilities and entitlements as other members of the community; and Justice: The belief in the right of people with disabilities and their families/carers to receive support services which will enable them to live as valued members of the community Provision of services for people with a disability is an extremely complex and difficult area of Government activity. Support needs of clients vary and change continually requiring an adaptive and flexible management response. This service provision environment makes designing and implementing effective services a significant challenge, particularly given the vulnerability of clients and limited resources.

The challenges inherent in providing disability services, and particularly accommodation support are substantial and continuing. The ACT Community Care Disability Program is the provider of last resort. The client group is represented by a large proportion of people, with a high level of support needs, complex issues and behavioural difficulties. The balance between "duty of care" and "dignity of risk" is not always easy to measure, even applying general criteria. It is frequently difficult to implement an appropriate balance, so that it accords with expectations of clients, their families/guardians, advocates and legal and social responsibilities of the Program".

In pursuance of these aims the Disability Program provided Nangor House as accommodation for Brett and others and staffed that accommodation.

STAFFING AT NANGOR HOUSE The staffing arrangements at Nangor House were, as I have mentioned, that generally two workers were on duty except in the evening when one worker was responsible for the care and support of the four residents. The evidence before me would indicate that there was a degree of

consistency in the staffing arrangement at Nangor House. M/s Grayson in her evidence indicated that it was the hope of Disability Support Services to keep continuity of workers in the same house, as lack of continuity caused problems in relation to the support and care of the individual residents. M/s Grayson accepted that this hope was not always practicably able to be achieved and she explained in some detail the difficulties which she and her service experienced in obtaining properly qualified workers to perform the particular caring and support roles required by the Disability Program. Not withstanding these difficulties it is clear from the evidence that less use was made in Nangor House of casual employees than may have been the case in other houses and that there was a continuity of permanent workers engaged in the care of Brett and his fellow residents.

The Disability Program operated on the basis that a key worker was appointed to each individual in the Program, and in the case of Brett his key worker was Mr Fraser. Mr Fraser had been employed by Disability services for many years and had been at Nangor House for approximately four years. Mr Fraser was on duty on the evening that Brett drowned in the bath at Nangor House. He was at that time a DSO1 although he had in the past acted as a DSO2.

The other worker on duty on the evening of the 6th August was a Mr Parmar who was also a DSO1 and he had been employed with Disability Services for approximately 8 years. He had been, according to his evidence, at Nangor House for approximately two months prior to the 6th August. A perusal of the attendance records for the year 2000 would indicate that Mr Parmar first appeared in those records on the 10th June 2000.

The immediate management responsibilities for Nangor House were in the hands at the relevant time of M/s Hofmeier, the DSO2. In addition to her responsibilities as a manager, she was also at the same time a hands on worker. M/s Hofmeier had the immediate managerial responsibility in relation to Brett to ensure that the "duty of care" which applied to the Disability Program’s responsibilities, towards Brett, was duly carried out.

The Individual Plan The most significant document upon which reliance is placed in furthering the care of a client of the program is the individual plan (IP). The IP as described by M/s Grayson "is a written plan of action. It specifies client strengths, agreed priorities, goals and strategies designed to meet the needs and ambitions of a person with a disability receiving a service. The IP documents agreed upon goals to be achieved through the development of skills, the securing of resources, access to and coordination of services, the meeting of social, physical, medical, vocational, recreational and emotional needs. The IP process emphasises client/guardian participation in the formulation of a plan of action that is based on specific positive outcomes for the client. The IP is not intended to be an exhaustive description of every assistance a client can or will receive." The IP is developed following impute from various parties including the key worker of the client, any parent or guardian involved in the care of the client and other relevant personal. The IP is reviewed, from time to time, and generally re-done every twelve months. The last IP prepared for Brett was completed and dated on the 4th June 2000 and was signed by Mr Ponting, Mr Fraser and M/s Hofmeier. The IP, as I understand the evidence, is the basic document relied upon by the staff at Nangor House to care for and manage the activities of clients. The IP is available for all staff members to read and it is a general requirement of staff that they do read the IP when they commence duty so as to be familiar with the responsibilities imposed upon staff members by the IP. Other documents were available at Nangor House including a book described as a communication book, a diary and a number of different written directions to staff. All of these documents were available for the assistance of staff and as I have indicated it was the expectation that staff would be familiar with these documents. The evidence relating to Brett indicates that

the staff in particular, those who were on duty on the 6th August, were indeed familiar with these documents and carried out their responsibilities in accordance with their understanding of the contents of the various documents. This is a significant factor in Brett’s case, as one of the specific instructions contained in the IP related to the bathing procedure which was to be followed in relation to Brett. This instruction indicates: "full assistance required – two staff members needed". This wording is taken from the most recent IP. An earlier IP, in 1999 used the following terminology in relation to bathing: "full assistance with bathing and drying."

THE EVENING OF THE 6TH AUGUST 2000 Brett had been to a barbecue during the day and was dropped off at his mother’s house in the afternoon. He was picked up from there at about 4.20pm by Mr Parmar. Mr Parmar indicated to Mrs Ponting that he was going to take Brett home to have a bath and to have a roast dinner.

The evidence of Mr Fraser and Mr Parmar suggests that when Brett arrived back at Nangor House he was left for a period of about one hour in his wheel chair while other activities including the bathing of A took place.

I have mentioned above that there was a number of staff instructions maintained at Nangor House. One of these was a document entitled "Shift Routines" This document, as I understand it, was permanently left in the house and available for inspection by all carers and indeed it was a requirement of their employment that they be familiar with this particular document. The Shift Routines Document, now ex 13, sets out in a detailed way all of the duties which the staff were required to perform from time to time during the course of the period commencing at 7.00am and ending at about 9.00pm. The shift routine related to activities of all the residents of Nangor House. The shift routine between 4.00pm and 6.00pm indicates that A was to have a bath after 4.00pm but does not include any reference to Brett having a bath at that time. Indeed, the shift routine indicates for the period between 6.00pm and 9.00pm that Brett was to have a long soak bath with assistance half an hour after meal.

The evidence concerning the 6th August indicates that this shift routine was not necessarily adhered to, particularly in relation to Brett. The evidence is that Brett suffered from incontinence and it was sometimes the case upon his return from activities during the day that he was in an unhygienic situation. In those circumstances it appears to have been a practice followed by at least some of the carers to give Brett a bath before dinner rather than after dinner as was indicated by the shift routine. The shift routine directions were reinforced by another document held at Nangor Street entitled "Brett Daily Schedule". This document, which is also part of Ex 13, sets out, in some detail, the schedule to be followed in relation to Brett’s care and activities.

The daily schedule under the heading evening indicates that in the box for 6.00pm that Brett was to have his evening meal and drink. Thereafter, it indicates: "please wait minimum of ½ an hour before bath time, Brett enjoys a long bath (teeth cleaned in bath)". It is clear from these documents that the expectation of the person who prepared the documents was that Brett would have his dinner first and then his bath. As I have indicated however for reasons which are very clear, this did not always occur. It did not occur on the 6th August.

The evidence of both Mr Fraser and Mr Parmar is that it was decided as soon as reasonably practicable after Brett’s return from his mother’s house that he would have his bath. The IP indicated that the requirement for bathing Brett was "full assistance required – 2 staff members needed." A great body of evidence was led during the inquest as to what this particular expression meant and how it was interpreted by each individual worker. There appears on the evidence to be disagreement as to the meaning of this expression and how it was to be implemented. The evidence is that 2 workers were required to prepare Brett for his bath that is to say, to undress him and place him physically in the bath, and at a later time to physically remove

him from the bath, to dry him and to dress him in his pyjamas ready for his evening relaxation prior to going to bed.

There was general agreement between all of the witnesses that this was the procedure required and indeed was the procedure followed and which had to be followed as it was not possible for one person to physically do the things required to prepare Brett for his bath and to assist him after his bath. The real dispute between the witnesses was what occurred while Brett was in the bath. One school of thought was that he could be left in the bathroom by himself for reasons of privacy or indeed any other reason for varying periods ranging from a short period to an exceptionally long period. The second school of thought was that he must never be left alone in the bath and that one carer was required to be present in the bathroom with him at all times.

The clear evidence of Mr Fraser and Mr Parmar is that both those carers belonged to the school of thought who left Brett alone in the bath.

The evidence is that Mr Fraser and Mr Parmar took Brett into the bathroom, undressed him and placed him in the bath. Mr Fraser then left the bathroom and shortly thereafter Mr Parmar also left the bathroom and according to their evidence left the bathroom door open.

Brett was left in the bath for some period of time perhaps as long as twenty minutes before Mr Fraser returned to the bathroom to discover him in the water unconscious and apparently drowned.

EVIDENCE RELATING TO THE BATHING PROCEDURE ON 6TH AUGUST 2000 Robert John Fraser Mr Fraser gave evidence that he had been employed the ACT Government for nearly twenty years and had been a support worker in the Disability Services sector for about nine years. He had been at Nangor House for about four years. His training in relation to his role as a support worker had principally been on the job training although he had done part of an Advanced Certificate at TAFE.

He indicated that the level of care required for Brett was a lot higher than the other three residents who had remained the same throughout the four years of his employment at Nangor House. He was familiar with the needs of Brett and also familiar with and indeed had played a role in the creation of the IP and was familiar with the other materials available in the house for the support and care of the individual residents.

Generally speaking Mr Fraser indicated that his routine in relation to bathing Brett over the whole of his four years involvement with Brett had been much the same, namely that Brett was placed in the bath with assistance from two staff members; that generally there was only a small quantity of water in the bath at the time Brett was placed in it and the bath was then filled about half full. He indicated that the water came up to about the middle of Brett’s chest. My understanding of Mr Fraser’s evidence is that Brett was, since the purchase of the spa mat, placed in the bath with his back up against the curved end of the bath and that there was a gap between his feet and the end of the bath. The procedure seems to have been the same prior to the purchase of the spa mat.

It is perhaps appropriate to comment at this point concerning the spa mat. This mat was purchased by Mr Ponting for his son and had been in operation at the house for some period of time. The spa mat was of a type commonly used in hospitals and therapeutic institutions and consisted of a mat which fitted into the bath following the contours of the bath, it also had on it a seat area where Brett sat. A blower machine was attached by means of a hose to the mat and this

machine generated bubbles in the water.

Mr Fraser indicates that the mat was placed into the bath and the bath partly filled before Brett was put into the bath. Mr Fraser indicated that his memory of the evening was to some extent based upon his usual practice and that was that Brett was left in the bath after it had been filled to the earlier described level and that he would be checked on every five to ten minutes. He indicated that Brett would sometimes be left in the bath for up to half an hour if he appeared to be enjoying it. The door was left open, probably about a foot.

Mr Fraser indicated that Brett enjoyed his bath and in particular the spa mat being in the bath and that he made a considerable amount of noise, both vocally and by banging his arms on the side of the bath. This however did not always occur and there were periods of quiet in the bathroom.

These periods of quite did not of themselves give rise, in Mr Fraser’s view, to a need to immediately check upon Brett as they were not an uncommon experience.

Mr Fraser was asked concerning the direction in the IP concerning "full assistance – 2 staff members required" He indicated that it was his understanding of this instruction that it did not require a staff member to remain in the bathroom with Brett at all times. It appears clear from Mr Fraser’s evidence that this had always been his position during the four years of his contact with Brett at Nangor House.

He indicated that he had never seen any other resident in the bathroom while Brett was there, except in relation to A who was from time to time taken into the bathroom with the two workers during the preparation of Brett for the bath but who would then leave with the workers when Brett was in the bath. This activity occurred as a result of concerns about the conduct of T in relation to A.

He was not aware of any concerns ever being expressed by anybody including Mr and Mrs Ponting of his practice of leaving Brett alone in the bath.

Mr Fraser indicates that he left the bathroom first and does not recall turning the tap off before he left but that Mr Parmar had remained in the bathroom to pick up the clothing that had been worn by Brett and that he left shortly thereafter.

Mr Fraser then went to the kitchen and began preparing the evening meal. He remained in the kitchen area the whole of the time from leaving the bathroom to his return.

Mr Fraser was somewhat uncertain as to the timing of his return to the bathroom and variously said that it may have been five to ten minutes or even longer. He indicated in his evidence that his return to the bathroom was a routine check and that it was the first check he had made since leaving Brett alone in the bathroom. Upon his return to the bathroom he found, according to his evidence, that Brett’s body was completely under the water. It is fair to say however, that Mr Fraser’s evidence as to the precise observations that he had made at that time are somewhat unclear and no doubt it is true that he was in a state of shock at the time of the discovery and I am not able in all of the circumstances to accept with any degree of confidence his evidence in relation to his observations at the time of his discovery of Brett in the bath. It is clear however from his evidence that Brett’s face was in the water and that he may have been turned on his side. Much was made of this latter fact during the course of the inquest but I am not able to find in view of my concern about the evidence of Mr Fraser and his discovery of Brett that indeed Brett was on his side at the time of discovery. I am only able to find as a fact on the evidence that his face was in the water and that possibly his whole body was under the water.

Another issue of some concern in relation to the evidence of Mr Fraser was the position of the door upon Mr Fraser’s return. I shall make some further comment concerning this in due course

but would indicate at this state that the only evidence as to the door being closed came from Mr Fraser. The position of the door was the subject of considerable debate and is said to be significant particularly in relation to the submissions made as to the involvement of T. As I have indicated above in relation to my concerns with Mr Fraser’s evidence concerning the positioning of Brett in the bath I must also say that I have concerns about the reliability of Mr Fraser’s evidence concerning the door.

One of the issues arising out of Mr Fraser’s oral evidence is the timing relating to the period that Brett spent in his wheel chair upon his return from his mother’s place and the time he had spent in the bath. We have evidence from Mrs Ponting that Brett was picked up from her house at about 4.20pm. We know that the ambulance was rang at 5.38pm.Mr Fraser in his oral evidence indicated that he thought Brett had been kept in his chair for about an hour or so after his return.

I would assume it would take about ten to fifteen minutes for the journey from Mrs Ponting’s home in Pearce to Nangor Street, Waramanga. Assuming this to be correct that would mean that Mr Parmar arrived back at Nangor Street some time around 4.30-4.35pm. One assumes that it takes some little while to assist Brett and the others who were in the vehicle out of the vehicle and into the house and working backwards from the time the ambulance was rang it would seem that it is not likely that Brett was left for an hour or so prior to his bath. If he was then he was apparently only in the bath for a very short time before Mr Fraser entered and found him drowned.

Mr Fraser had no real recollection of what Mr Parmar was doing during the period that Brett was in the bath nor indeed was he aware that Mr Parmar had apparently followed him towards the bathroom at the time of the discovery of Brett in the bath.

He gave some evidence concerning the depth of the water in the bath and indicated that he thought it was perhaps about six inches deep when he left the bathroom and that his memory of the water depth when he returned to the bathroom was that it was about half full, he denied that it was overflowing. He was not aware as to whether the tap may have been accidentally left on but his evidence is that it was still on when he left the bathroom with Mr Parmar still in the bathroom at that time. He could not remember whether he pulled the plug out of the bath but thought it would have been a natural reaction. He further stated that he would have lifted the spa mat to pull out the plug. This comment raises something of a concern in relation to the photographs which were tendered in the inquest as photograph which was numbered ultimately 6A, clearly shows the mat in a disturbed position. The photograph would suggest that the mat was bent in the middle and had been moved from its normal resting place in the bath. Apart from this comment by Mr Fraser there is no evidence to suggest how the mat finished in the way it appears in photograph 6A. There is nothing however in the evidence to suggest that the mat moved and the clear evidence of its use over a considerable period of time was that there is indeed no problem with the mat in the way it was used at Nangor House.

Mr Fraser was asked a number of questions concerning movement by Brett in the bath. It is clear from his evidence as it is indeed from other evidence that Brett could be very active in the bath and that this activity involved not only banging on the side of the bath but also movement within the bath and indeed there was some history of him kicking the hose out of the spa mat. The evidence concerning the positioning of the hose suggests that it was placed generally near the end of the bath where the taps were situated. Mr Fraser however, seems to have agreed that it was possible that during the movement made by Brett that he could have moved a little on the spa mat as a result of his movements generally in the bath. If he did move, it is clear that the level of water may have been critical to his well being as the evidence generally tends to suggest, particularly from Mr Fraser that the water was up to at least his chest level in the normal course of events. A movement of only a few inches may have caused Brett’s face to come into contact

with the water. The evidence also suggests that the aeration effect of the spa mat raised the level of the water and that this also may be a factor.

Mr Fraser indicated that he had no memory of whether he heard Brett splashing or making any other noise on this particular evening but he does say that it would not have disturbed him if he heard no noise because this did happen on occasions.

In addition to giving evidence orally to the inquest Mr Fraser provided a statement to the investigating police and this statement was given on the 10th August 2000. In that statement he indicates that Brett had indeed arrived back at the house roughly at 4.30pm and that A had had a bath while Brett was out with his mother but was still in the bath when Brett came home.

He further indicated that he started running the bath and that he put a bit of bath oil in the bath, that Brett was then undressed and placed in the bath and that Mr Fraser had then left. Mr Parmar had remained behind.

He indicates that he returned to the kitchen and was there for about ten to fifteen minutes before he returned to the bathroom where he found the door was shut. He then went in and found Brett lying on his side with his face under the water. He indicated to the investigating police officer that his memory on the 10 August was that Brett had been in the bath for ten minutes by himself and that he usually filled the bath about half full which was about six inches. He accepted in his police interview that he did not turn the tap off when he left. He was asked a number of questions by the investigating police in relation to the depth of the water and ultimately as I understand the record of interview gave a physical demonstration representing the depth as being from the tip of his finger to just below his elbow. It was agreed that this was somewhere between eight inches to a foot.

He was asked by the investigating police concerning the physical positioning of Brett upon Mr Fraser’s discovery of Brett and he indicated that his memory was that Brett was lying on his right hand side and that his legs were bent but that he couldn’t remember the positioning of his arms.

His clear memory was however, that Brett’s head was under the water.

He indicated to the investigating police that Brett’s feet, when he was placed in the usual position which Mr Fraser used following the contours of the bath, were about four inches from the end of the bath near where the hose from the spa machine came into the bath. He accepted that there was nothing to prevent Brett sliding down further into the bath and he did not know whether he indeed could slide on the mat but he thought that the mat itself (because of the presence of the suction cups under the mat) couldn’t slide. He was not aware of any circumstances during his years of contact with Brett when he had indeed slid down the bath causing his feet to come into contact with the other end of the bath.

It appears further that Mr Fraser may have made another statement in relation to the events of the 6th August. This statement was not put before the inquest during the hearing. Reference to the existence of such a statement is to be found in the ACT Housing and Community Serv.Bureau File on Brett Ponting which was tendered as exhibit No. 35. That file contains details of interviews conducted by M/s Penny Hayman who was the regional manager responsible for Nangor House. M/s Hayman was not called to give any evidence during the course of the inquest. M/s Hayman indicates in her notes that she interviewed Mr Fraser on the 6th August and that she indicated to him that she would write up the terms of the conversation and provide a copy for him to sign if he agreed with the contents. I am not aware as to whether this occurred.

The notes made by M/s Hayman paint a slightly different picture to the evidence given orally by Mr Fraser and also his statement to the police. In the notes made by M/s Hayman he indicates as follows:

(point 10): "the bathroom door was always kept open and was on this occasion" (point 11): He was routinely checked by staff every couple of minutes (point 12): His level of activity was also noted through monitoring of the sounds coming from the bathroom (point 13): Mr Fraser said he had in fact noted no sounds emanating from the bathroom and rushed to investigate (point 14): He found Mr Ponting on his side blue and clearly unconscious (point 15): He called out for assistance from Mr Parmar and they together lifted Mr Ponting out placed him on the floor and Mr Fraser commenced CPR (point 16): Mr Parmar rang an ambulance and returned to assist in the CPR This statement which was made apparently on the day of the incident involving Brett is clearly somewhat different from the other material put before the inquest by Mr Fraser. The statement given to M/s Hayman clearly indicates that it was as a result of Mr Fraser not hearing anything coming from the bathroom that caused him to rush to investigate the situation. Additionally it indicates that the routine followed by Mr Fraser was that Mr Ponting was checked every couple of minutes. This latter statement is not consistent with the evidence given by Mr Fraser before the inquest nor is the fact that he rushed to investigate having heard no noise consistent with the evidence that he gave to the inquest. It would seem to me looking at all the evidence that Mr Fraser has provided in his oral evidence, his statement to the police and by inference from the notes taken by M/s Hayman that it is more likely than not that indeed Mr Fraser’s attention was attracted to the bathroom when he heard no sounds coming from the bathroom. It also makes sense in the pattern of the evidence, that he called out for Mr Parmar to assist him. The alternative put forward that both he and Mr Parmar had some meeting of minds that caused them to go to the bathroom to either investigate or to end the bath period has always been something of a concern.

M/s Hayman in her notes indicates: "Mr Fraser was shocked and very upset and unable to write an account of the evening events." I would have no reason to doubt that Mr Fraser was in this condition from the time when he discovered Brett’s body in the bath.

The effect of the evidence given by Mr Fraser in its various forms tends to indicate that his practice was that he always left Brett alone in the bath, either for privacy reasons, about which more will be said in due course, or because he was, as a result of the arrangements in the house required to do other activities prior to dinner. It also clear that something occurred that prompted him to go back to the bathroom and I am inclined, at this point in time, to accept the version he gave M/s Hayman that he heard no noise coming from the bathroom and that he rushed to investigate and that at this time he found Brett with his face at least under the water and more likely than not his whole body under the water.

Jack Singh Parmar Mr Parmar indicated that he had been involved with Disability Services for approximately eight years and had worked at Nangor House for approximately two months prior to the 6th August.

The attendance records produced to the inquest would seem to suggest that he first began to work at Nangor House in June 2000.

He was of the view that the instruction contained in the IP concerning "full assistance" meant that the assistance was required to assist Brett to be undressed and put him in the bath but did not require any worker to be present in the bathroom while Brett was in the bath.

He did not recall any formal discussion or instructions from M/s Hofmeier, (the DSO2) or from anybody else, when he commenced working at Nangor House that ever suggested that a worker was required to stay in the bathroom with Brett during his bath. He recalled an instruction not to let T close to Brett because of Brett’s vulnerability but was not aware of any other instructions relating to Brett in a specific way.

He indicated his understanding of the situation was that because Brett enjoyed his bath so much "the culture was such that we left him there unattended for a period of time while we did other things". (T112 9th February) His memory of the bathing was that the tap was turned on before Brett was put in the bath and was turned off before he was put in the bath as well. His recollection is somewhat different to Mr Fraser’s recollection which was that Brett was placed in the bath while the water was still running.

Mr Parmar indicated that his memory was that when he left the bathroom he was not sure whether Mr Fraser was still there and that Mr Parmar had left the bathroom and gone and hung some clothes in the dining room. His memory is that while he was doing that Mr Fraser was in the kitchen working on the dinner. His memory of the next immediate chain of events was described by him as follows: "just,- well, he just – he went and he just said that he was going to go and get him out now and which did that – you know, I didn’t particularly, you know – we just sort of maybe one person timed it or whatever and you know and said, it’s – you know 5 or 10 minutes now, we’ll get him out or whatever, yes."(T114) He thought he had had some brief conversation with Mr Fraser before Mr Fraser went into the bathroom and he understood Mr Fraser was going in to bring the bath period to an end. He was not able with any precision to estimate the time that Brett was in the bath but thought it may have been between five and ten minutes.

His memory was that when he went into the bathroom he was going to assist Mr Fraser get Mr Ponting out of the bath and dress him. He was not aware that anyone had gone into the bathroom while he was in the dining room. He also indicated that the practice was to leave the door open so that Brett could be heard while he was in the bath.

He could not recall when he went into the bathroom whether the water was still in the bath and he did not recall who pulled out the plug. He rang for the ambulance and assisted Mr Fraser with

CPR.

Mr Parmar agreed that Brett was able to move around in the water but he was not sure whether that would be described as "floating" but certainly that he did move around.

His memory was that the bath water when Brett was in it was usually up to chest level which he then described as higher than the middle of the chest.

In addition to giving oral evidence to the inquest Mr Parmar was interviewed by the investigating police on the 10th August 2000 and also on the 13th September 2000. The interview of the 10th August was conducted by Detective/Constable Perkins and Constable Trembath and M/s Tracy Henderson was also present. Mr Parmar indicated in that interview that he thought he had picked up Brett about 4.10pm and that he had arrived home about 4.30pm. It had been decided that Brett would have a bath before dinner and his memory was that A had completed his bath and was already out of the bathroom by the time Mr Parmar got home. He thought that they had put Brett

into the bath sometime after five. A was taken with the two workers into the bathroom while Brett was prepared. Mr Fraser ran the bath and at Question 247 of the interview Mr Parmar was asked the following question: "Before you put Brett into the bath was it already filled or was it still filling or …" Answer: "Um, it was filled (the rest of the answer was indistinct and not reproduced)". At Question 249 he was asked: "Do you recall who turned the bath water off?" Answer: "Um I don’t because I didn’t turn it on. Ah, I – I don’t recall. I – it was, like, I said, you know, did that and it was full. I put him in there then, ah, got the nappy and I went to – out toand, um, got the washing from the washing machine and, ah, so that I could hang them on the clothes horse, um…". At Question 250 he was asked: "Okay. Do you recall how much water was in the bath before you put Brett in it?" Answer: "Yeah. Just the usual, sort of, up to his chest, sort of, yeah".

Mr Parmar thought that both he and Mr Fraser had left the bathroom at about the same time and that A had remained in the bathroom until that time. There does not seem to be in the statement to the police any comment about who took A out of the bathroom Mr Parmar indicates that he couldn’t hear anything from the bathroom when he was in the area of the kitchen hanging up the clothes and that he did not go back to the bathroom at any time until Mr Fraser left to go to the bathroom and he sort of followed him. He indicates that as he got to the bathroom he observed that the door was closed. He gives this answer at 293 but subsequently at question 295 he indicates that in fact Mr Fraser had told him the door was shut and that he himself had not actually seen the door shut. He believed it was about ten to fifteen minutes that Brett had been left in the bath. He indicated in the record of interview that he was walking behind Mr Fraser and that Mr Fraser yelled. He himself did not see Brett under the water.

As mentioned above Mr Parmar was again spoken to by the investigation police on 13th September and this interview principally relates to the activities of R and in particular a habit that he seemed to have of closing doors. He thought that one of the doors that R did close from time to time was the bathroom door.

Mr Parmar was also spoken to by M/s Hayman. Her notes of that conversation are listed in ex 35 and contain the following statements: (Point 7): Mr Parmar indicated that he had worked in the house for a couple of months and had followed the accepted practice in the house in respect of the bathing routine for Mr Brett Ponting (Point 10): Mr Parmar said the procedure with Mr Ponting was to lay him on his back with the water up to his chest with his shoulders out of the water.

He had head control and was able to hold his head up while enjoying the bath.

(Point 11): He also splashed and generally made a level of noise with knocking against the side of the bath which was monitored by keeping the bathroom door open and staff popping in at frequent intervals (Point 12): On Sunday night this had been followed and he had been alerted to an

incident when Mr Fraser had called out that he needed help (Point 13): On entering the bathroom Mr Parmar found Mr Fraser lifting Mr Ponting out of the bath in an unconscious state (Point 15): His observations were that Mr Ponting had both soiled and vomited in the bath and that he was unconscious and blue M/s Hayman notes that Mr Parmar was shocked and very upset.

Mr Parmar’s evidence in summary is that he had been at Nangor House for a few months prior to August 2000 and that the routine followed with Brett on that evening was the practice of the house. He like, Mr Fraser has indicated to M/s Hayman that his attention was drawn to Brett in the bath by Mr Fraser calling out for assistance. This is somewhat different to the memory Mr Parmar had when he gave evidence to the inquest and also when he spoke to the police on the 10th August. He was also of the view, that nobody had ever instructed him or raised with him the issue that Brett should not be left alone in the bath. Neither he nor Mr Fraser had gone to check on Brett from the time he was left in until the time he was discovered by Mr Fraser in the bath.

OTHER EVIDENCE FROM CARERS RELATING TO BATHING PRACTICE Evidence was given by a number of other carers at Nangor House who had been employed for varying periods at that place. The following carers gave evidence and also provided statements to the police. Robert Henry Churchill, Judith Ellen Hofmeier, Robyn Betty Page, John Joseph Howe, Mary Josephine Burns, David Alwyn Maher-Smith and Tracy Leeanne Henderson.

Robert Henry Churchill Mr Churchill gave evidence to the inquest and indicated that he was employed as a DSO2 (casual). He indicated that he had been employed in that capacity as a casual for some seven years. He had over recent years been engaged in working at a number of houses including Nangor House. During his period at Nangor House he had been involved in bathing Brett and his understanding of the instruction and the procedure was that Brett was left alone in the bath and that the water would come up to about the bottom of his ears. He indicated that a check would be made of Brett in the bath every five or up to ten minutes or so and that he would be left in the bath for between twenty to thirty minutes. He indicated that Brett was left alone in the bath because of privacy reasons.

Mr Churchill gave particular evidence concerning an incident between T and Brett and I will return to this evidence in due course.

He indicated that Brett moved around in the bath and he thought he had a slight capacity to move to one side. He further indicated not withstanding his description of the water coming up around the back of Brett’s ears and under his chin that he had never seen water get into his mouth or nose.

Mr Churchill had also provided a statement to an investigator employed by the ACT and this statement was provided on 11th January 2001. In this statement he again spoke of the incident involving Brett and T. He indicated in this conversation that the practice he had given evidence

about was the practice that he had adhered to namely, of leaving Brett alone in the bath and he indicated further that he had been surprised when he was told that it was alright to leave Brett alone in the bath. His procedure was to run the bath while Brett was being undressed and that the bath would be up to eight inches deep. Once Brett was in the bath they usually turned the tap off.

He again stated in this interview that the water came up to the same level as he had described in his evidence and in particular that when Brett laid in the bath the water would have come just under his chin. He thought there was a gap of between eighteen inches to two feet between the end of Brett's feet and the end of the bath. He didn’t believe that Brett tendered to slip on the spa mat. He further indicated in relation to observations that it could be probably ten minutes between checks but he personally himself liked to do it every five minutes, these checks were carried out by walking past the bathroom rather than by going in. He stated that he had never worked at Nangor House with a carer who had remained in the bathroom at all times with Brett.

A perusal of the daily attendance sheets relating to Nangor group house commencing on the 5th January 2000 until the 6th August 2000 indicates that Mr Churchill was on duty on 7 occasion and that he had worked with Robyn Page, Robert Fraser, David Maher-Smith and Judy Hofmeier. He indicated that it had never been raised with him by anybody that one of the carers was supposed to remain in the bathroom with Brett at all times.

Judith Ellen Hofmeier M/S Hofmeier was the DSO2 at Nangor House on the 6th August and had been in that position for about twenty months prior to February 2001 the time at which she gave evidence. M/s Hofmeier gave evidence initially that her understanding of the instruction concerning full assistance required two staff to assist preparing and placing Brett in the bath and that one staff member was to stay in the bathroom with him and then it required two to remove him from the bath and dry and dress him.

M/s Hofmeier’s view concerning her personal practice in relation to leaving Brett alone in the bath was somewhat unclear from her oral evidence. She initially seemed to be suggesting that she remained in the bathroom with him at all times. She ultimately conceded however that she did leave the bathroom for periods which may be as short as five seconds or longer as she said in her evidence: "Well I did leave and I – it’s really difficult because I know I did leave- leave the room and whether it was for 5 minutes, I’m not sure, at times, to be truthful, but when I – I was very much alert to the circumstances of Brett being in the bath" (T154 9th February 2001).

M/s Hofmeier also accepted that she was aware of the practice of other carers, particularly those who had looked after Brett for a long time, of leaving him alone in the bath for considerable periods of time. She accepted that as the DSO2 in Nangor House it was her responsibility to ensure that if she regarded that practice as unacceptable, which she seemed to do, then she had to alter it. She had taken no action to alter that practice, as I understand her evidence, other than to hope that by the example that she set of being more regularly in the bathroom than others were, that that might create a new practice. This form of management does not seem to have worked in relation to Mr Fraser and Mr Parmar.

She was asked the following question: "So accepting that to be so, would you think that its perhaps possible that you did, indeed, accept the existing practice to leave him in the bath for long periods of time, unobserved? That is visually, like not being in the bathroom with him?" Answer: "I must’ve. I did with the old staff but when I started to get new staff, I did change it." (T154) She added that she accepted what Mr Fraser was doing.

During the cause of her evidence, from time to time, she made mention of the door to the bathroom being closed. At T155 she indicated to Mr Constance, who appeared on behalf of Mr Ponting, that she had made a specific ruling for the door to be left open. This would suggest that

there had been a practice perhaps engaged in by those described by M/s Hofmeier as being long serving, for example Mr Fraser, of closing the door when Brett was left alone in the bathroom.

M/s Hofmeier also gave evidence about the physical activity of Brett in the bath and also indicated that his whole body used to move when he was in the bath in addition to him banging on the side. He had a capacity, to lift up his back side off the bottom of the bath. She also indicated that she was aware of his capacity to kick the hose out of the spa machine.

She was asked the following question by Mr Constance: "And if you had seen him in the water – when he was lying in the correct position on the spa mat – water that was up behind his ears but under his chin, would it have concerned you that if he managed to move down the bath enough to kick out the hose, that he could have had his head under the water?" Answer: "Yes, yes, I wouldn’t have liked that. I would have released some water out of the bath. As I said, the bath was for fun, it wasn’t to wash him". (T157) M/s Hofmeier indicated that she had attended at Nangor House on the evening of the 6th August and that the ambulance had just left upon her arrival. There was no water in the bath. She was shown photograph marked 6A and says that that is her memory of the position of the spa mat when she saw it after the ambulance had left.

M/s Hofmeier was also interviewed by the investigation police and this interview took place on the 25th September 2000. Her comments to the police are much in line with the evidence that she gave orally to the inquest. She again reiterated that she was aware of the practice of leaving Brett alone in the bath and that while she didn’t like it she had not done anything to change it, other than in relation to new staff members, whom she regarded as being better trained than longer serving staff members and that they perhaps, of their own training, applied a different standard of safety to their work.

She accepted that it was not written down anywhere that someone had to stay in the bathroom with Brett while he was in the bath but she thought it was a matter of common sense that such a practice should occur. She also agreed that there was a practice that Brett was sometimes bathed before dinner if he was smelly. She was not aware of any occasion, save for the presence of A in the bathroom with carers, of any other resident ever being in the bathroom when Brett was having a bath.

She indicated to the investigating police that when she arrived at the house, while there was no water in the bath, it was her memory that there were markings on the bath that indicated the water had not been "very high at all". She further indicated that Mr Fraser was in a very distressed state when she arrived at the house that evening and that she had not been told on that evening that Brett had been on his side. She only found this out later on.

M/s Hofmeier further indicated that she had learnt much of what she knew about running the house from Mr Fraser who had been there for so long.

Robyn Betty Page M/s Page gave evidence to the inquest and indicated that she is a DSO1 and is a casual worker.

She had been employed for approximately three years with Disability Services and had contact with Nangor House for approximately four years. She had contact with Nangor House while she had been employed with an agency prior to her employment with Disability Services.

M/s Page’s understanding of the bathing routine was that Brett was left in the bath alone and that checks were made on him from time to time. She had obtained this understanding from previous staff members. The approach adopted by M/s Page was very much in line with that adopted by

Mr Fraser. She indicated that she had indeed discussed this matter with M/s Hofmeier but did not recall when that had occurred. She was aware however, that M/s Hofmeier wished to change the routine and she thought that some staff had changed but others hadn’t. She indicated that the bath would be filled up to ear level and that Brett was flat in the bath. She was also aware that Brett had in the past disconnected the pipe from the spa mat. She did not regard the presence of a worker in the bathroom as desirable because Brett could have his time in the bath which he enjoyed and this freed up the staff to do other things in the house.

She indicated that Brett was able to move his body on the mat in the bath and that she had seen situations in which he had moved both up and down the bath.

She was asked a number of questions concerning her discussion with M/s Hofmeier and referred to certain portions of the interview she had with the investigating police officers particularly in relation to the timing of the discussion that she had had with M/s Hofmeier. Her final position seemed to be that she had the discussion before the death of Brett Ponting but that nothing had come out of that discussion.

She was further asked about the placement of Brett in the bath and indicated that he was flat on the horizontal part of the bath and not in any way on the sloping end of the bath. She continued to state that Brett was indeed flat on the bottom of the bath and that the back of his head was on the bottom of the bath and that she would put him in with the water running and it would only be a few inches deep. She also indicated that she had observed occasions when bubbles had splashed over his face.

She gave evidence that she had worked with Mr Fraser, Mr Parmar and M/s Hofmeier on occasions when Brett had his bath and it was her memory Brett was always laid in the same way in the bath namely, flat on his back. She had never seen a situation in which he had been placed in a more normal position, namely with his back against the curved end of the bath and following the contour of the bath. She also agreed that he was left alone in the bath for periods of between five and ten minutes while the carers did other activities in the house and that he was observed more by ear than by sight. She also accepted that she was familiar with incidents where Brett made no noise at all in the bath. She said that if this occurred someone would go and check him.

She indicated further that the door to the bathroom was not always shut prior to M/s Hofmeier’s direction but that some of the old staff used to close the door. She denied that Mr Fraser was included in the group of the old staff who closed the door. It was specifically put to her that the general practice of bathing Brett was to put Brett with his back against the end of the bath and she said this was not so.

M/s Page was also interviewed by the investigating police on the 25th September 2000. Her comments to the police were generally in agreement with the evidence that she gave to the inquest. She indicated, however that the maximum time Brett would stay in the bath was about thirty minutes and that he would be checked on every five to ten minutes. She further indicated that there was a practice that the water was changed while Brett was in the bath. She stated that the water came up around his ear just under the back part of his ear, and that his head sort of rested on the curved part of the bath. She again indicated that she was aware of occasions when Brett slid down in the bath and when this occurred he was merely lifted back up again, but she did go on to indicate that she was not aware of him ever having slid on the spa mat.

She accepted that A could be taken into the bathroom while Brett was there but she had never seen any of the other residents in the bathroom while Brett was in the bath. She was aware of R having a habit of closing doors but she had never seen him close the bathroom door, indeed she had seen him go past the bathroom door look in on Brett and indicate that he was OK.

John Joseph Howe Mr Howe gave evidence orally on the 19th February and indicated that he was a DSO1 and that he had first worked at Nangor House in about June 2000. He was a permanent employee at Nangor House. His understanding of the bathing routine was that a staff member stayed in the bathroom with Brett. He was shown the IP concerning the instruction and indicated that he couldn’t remember having seeing it before but that he had read the IP plan when he had joined Nangor House.

He indicated that the bathing practice varied in that on some occasions the water was running when Brett was put in the bath and on other occasions he was put in the bath first and the water was put in thereafter. He denied that Brett was ever laid flat in the bath and that his experience was that he sat in the bath in a more normal fashion following the contour of the bath and that the water came up to just above his navel.

He indicated that if he had to leave the bathroom for any reason he would call the other carer to replace him when he did so. He denied that he had ever seen any carers leave Brett alone in the bathroom. A perusal of the daily attendance sheets between June and August 2000 indicate that Mr Howe had worked with the following carers: Mr Parmar, M/s Page, Mr Maher-Smith, M/s Burns, M/s Hofmeier and Mr Fraser.

He further agreed that there were occasions when Brett lay quietly in the bath but generally speaking he splashed and made a lot of noise, this noise could be heard from the kitchen. He agreed also that A was sometimes taken into the bathroom while Brett was being prepared but this did not happen very often. The bathroom door was always fully open when Brett was in the bath.

He stated that he had done a number of shifts with Mr Fraser and that the practice he described concerning being in the bathroom with Brett applied even when he was partnered with Mr Fraser. His decision to remain in the bathroom was his own decision and not based on any instruction or advice from anyone else.

He stated that while he had been watching Brett in the bath he had never observed him to move up and down or sideways in the bath tub. The only movement was hitting his arms against the side of the bath.

When it was suggested to him that his evidence was perhaps different to at least four other people concerning the bathing regime he indicated that his version was correct. In fact, he appeared quite aggressive about his answers in this area.

He did not recall any direction or advice from M/s Hofmeier concerning staying in the bathroom and he did not recall any instruction being given by M/s Hofmeier requiring the door to be left open.

Mr Howe was also interviewed by the investigating police on the 24th September 2000. He again indicated to the police that he used to stay in the bathroom, that he had never seen an instruction written down requiring him to do so but believed that it come by word-of-mouth. This perhaps is contrary to his oral evidence that it was based upon his own decision. He indicated that the water was generally no higher than the belly button and that perhaps there was three to four inches of water in the bath. He indicated to the investigating police that he had seen Brett on some occasions with his face to one side feeling the bubbles on his face. He had never seen any of the other residents with the exception of A coming into the bathroom while Brett was there.

He indicated to the police that he believed his understanding that he ought to stay in the

bathroom had come in part from his training but also was based upon the fact that he became aware that Brett had had seizures some years ago and that he thought it was appropriate that he not be left alone in the bath with that history. He thought everybody in the house would follow the same procedure.

He again stated to the police as he had done in his oral evidence that his practice was precisely the same as Mr Fraser.

Mary Josephine Burns Mrs Burns gave evidence that she was a Disability Support Worker and had been in that position since June 2000 although she subsequently changed this to June 1999. She first began to work at Nangor House about June 2000.

M/s Burns understanding of the bathing arrangement was that someone was to stay with Brett while he was in the bath. She accepted that it did not say so in the IP and that no body had ever discussed the matter with her. She stated that her understanding had come from her training. She indicated that Brett lay at an angle in the bath and that the water was about three to four inches deep and that it would come up to the bottom of his sternum or just above his tummy.

She also described observations she had made concerning Brett’s capacity to move in the bath which included a capacity to bend forwards so that his back might be washed and to lift his bottom up off the bath.

She indicated that she was aware of a practice of some carers to leave Brett alone in the bath but that it did not occur while she was on shift. She indicated that when she was on shift she would always be the one to stay in the bathroom.

A perusal of the daily attendance sheets between June and August 2000 indicates that M/s Burns worked with Mr Maher-Smith, M/s Hofmeier, Mr Howe, Mr Parmar, M/s Page and Mr Fraser.

She further indicated that it was her work practice that she always stayed in the bathroom with anyone who was in her care in any of the houses that she worked in.

M/s Burns did not seem to have any concern about any issues of privacy or individual dignity relating to her particular work practice.

M/s Burns was interviewed by the investigation police on the 26th September and indicated that she first started working at Nangor House on or about 22nd June 2000. Prior to that date she had no contact with Brett. She again indicated to the police that it was her practice to stay in the bathroom with Brett and then if for some reason she had to leave the bathroom she would have another carer come and replace her. She was not aware of any circumstances apart from the presence of A in the bathroom of any other resident ever having gone into the bathroom while anyone was taking a bath.

She was asked by the investigation police whether everybody adopted the same practice of bathing that she did and she indicated that she didn’t know but that she had heard of a practice where Brett was left in the bath by himself. When pressed by the investigating police as to who they were she was not able to identify anyone who followed the practice of leaving Brett in the bath. She had not received any instructions from management that required her to stay in the bathroom with Brett.

David Alwyn Maher-Smith Mr Maher-Smith gave evidence to the inquest and indicated that he was a carer and had been so for some three years. He had worked at Nangor House basically through the winter period of

2000. He indicated that it was his understanding of the bathing practice that one member of the staff was to stay in the bathroom with Brett.

He stated that his first shift was with a Mark Ferguson, who did not give evidence to the inquest, and that it was he who explained to him the need to stay in the bathroom.

A perusal of the daily attendance sheets for Nangor House indicates that on the 26th February Mr Maher-Smith and Mr Ferguson did a shift of 0700-1500, or in Mr Ferguson’s case until 1400.

This would seem to be the first reference to the employment of Mr Maher-Smith.

Mr Maher-Smith indicated that if he was in the bathroom with Brett the door was always shut but if he had to leave the bathroom the door was always left open. He went on to say however, that notwithstanding the evidence that he had already given that indeed it was his understanding and his practice that you could leave the bathroom for periods up to two to five minutes and during that time you could hear Brett from the kitchen. He was asked the following question: "So it was your understanding of the arrangement that you could leave the bathroom while Brett was in there?" Answer: "Yes, because I was informed that he was to be allowed to have some time to have his – it was classified as his play time in the bath, for his recreation, and for him to enjoy himself."(T223 12 February) He indicated further at T223 that the longest period he would stay out would be two to five minutes.

He indicated that there was no particular routine about the filling of the bath, that sometimes it was pre-run and other times Brett would be placed in the bath and they would then put the water in. His evidence was that the water never came much above the bottom of the rib cage and that he was always propped up against the end of the bath away from the taps.

Mr Maher-Smith indicated that by reason of the fact that he was by training a chef, he generally made the dinner in the evening. He agreed that he had experienced occasions when Brett was quite in the bath and that these lasted only two to three minutes before he made a noise or somebody spoke to him. If somebody spoke to him he always answered by making noises, whistling or hitting the bath.

Mr Maher-Smith was asked to comment on how Brett died or drowned in the bath and he made the following comment: "But my personal – from my experience with Brett was that the way he was positioned in the bath, the way his arms and legs were and the way – the amount of movement that gave him in the bath was just enough to rock backwards and – side to side. He could turn his face towards the water but because we always ensure that the water level was where it was, it was only his ear that was ever getting in the water". (T230) He went on to describe what he thought the mechanism was that enabled Brett to get his ear into the water and it seemed to involve the bubbles in the spa and the capacity that he thought Brett had to push himself down. He didn’t believe however that because of Brett’s actual physical situation that he would be able to get his whole face into the water in those circumstances. He accepted however, that if there was more water in the bath than he indicated he put in the bath then the risk of Brett’s face coming into contact with the water was greater.

He indicated at T232 that he thought that Brett deliberately put his ear and face into the water as when he did it he used to laugh.

Mr Maher-Smith was also interviewed by the investigating police on the 21st September 2000.

He indicated to the police that he thought someone stayed in the bathroom with Brett about 90-

99% of the time but that he did the cooking about 70% of the time and was not required to stay in the bathroom. When pressed by the police he indicated that he did indeed leave the bathroom and there were periods of between one to five minutes when he would be responsible for Brett that he was not present in the bathroom and relied upon being able to hear him.

He indicated to the police as indeed he had indicated in his evidence that there had been odd occasions when, for example Mr or Mrs Ponting might be in attendance at the House and he was responsible for Brett in the bath that he would leave the bathroom and stand outside the bathroom door talking to those persons for up fifteen to twenty minutes.

He again reiterated to the police his understanding of the practice in the same terms basically as he had indicated in his evidence namely "that one person was to stay with Brett for the majority of the time that he was there but that he was to be given some time alone, quite often while you’d be on the phone or going to get something, but that varied between staff members" (Q52) At Q57 he indicated that he was aware that T would go into the bathroom and annoy Brett. He stated that on two occasions he had had to tell T to get out of the bathroom but he had never seen anyone touch Brett in the bath but had heard that resident T had done it in the past. He indicated to the police that he had heard that someone had gone into the bathroom and had actually seen T over the bath and that the staff had dragged him out.

He further stated that he had heard Brett start to scream and that there was a particular scream that he had use. If however T was involved with him and annoying him then he would scream in a different way so as to attract attention.

He was asked about the spa mat in the bath and indicated that it required actual physical effort to remove the spa mat from the bath because of its suction. He thought the water when he put it in was about six to eight inches deep.

Tracey Leeanne Henderson M/s Henderson was the accommodation support manager responsible for Nangor House. Ms Henderson had worked at Nangor House as a DSO2 between March 1998 and September 1998 and she indicated that during that period she had not become aware of a practice whereby Brett was left unattended in the bath for periods between five and up to fifteen minutes. She indicated that she would have been on a rostered shift with Mr Fraser during that time and notwithstanding this she had not become aware of Mr Fraser’s stated practice. She was asked to comment upon the current state of the evidence namely that it appeared to be a long and established practice that Brett was left alone in the bath and she indicated that she could only comment upon what she had observed and that she had never observed anybody leaving Brett alone in the bath for those periods of time. She denied that she fell into the same situation as M/s Hofmeier of becoming aware of the practice and accepting it.

M/s Henderson also gave evidence concerning the interpretation of the direction concerning bathing and indicated that she believed that the wording indicated that somebody was to stay in the bathroom with Brett while he was having his bath and that based upon this belief the house was staffed accordingly. She accepted however, that the phrasing of the instruction left room for different interpretations. She not aware that M/s Hofmeier had unease about the practice of

leaving Brett alone in the bath although she did concede that she had a memory of M/s Hofmeier raising with her concerns that M/s Hofmeier had "about her inability to have staff change practices".

M/s Henderson was interviewed by investigating police on the 9th August 2000 and indicated that she had never observed Brett in the bath with his spa mat. Her comments to the investigating police relating to her experience in March to September 1998 related to periods prior to the purchase of the spa mat. Her memory was that he was put in the bath and actually took up the whole length of the bath with his feet right up to the end of the bath and that he held himself quite rigid. The water level was usually just sort of over his tummy coming up to the height of his shoulders and he would usually kick up and that he loved his bath and that he would constantly move around in the bath and continually bang on the sides of the bath and make a lot of happy noises. She again reiterated to the police that the work practice in existence during her period at Nangor House was that someone would stay in the bathroom with him and she had not become aware of any change to that work practice after her departure from the house.

CONCLUSION IN RELATION TO BATHING PRACTICE AND THE EVENTS OF THE 6TH AUGUST 2000 The evidence above indicates a number of difficulties relating to the bathing practice of Brett as it operated at Nangor House in August 2000. The nine carers who gave evidence had varying degrees of experience at Nangor House ranging from four years for Mr Fraser and M/s Page to two months for Mr Parmar. I accept that during Brett’s residence at Nangor House, the instruction concerning bathing remained in much the same terms as set out in the most recent IP, that is to say, "full assistance required – two staff members needed". The staffing arrangement of two carers being on duty, particularly in the evening bath period, also seems to have been consistent during this period. It is clear from all of the evidence that workers interpreted the IP instruction in their own particular way and it is also accepted by everybody involved in the Disability Services Division who gave evidence that the wording of instruction was unclear and lent itself to individual interpretations.

The evidence concerning the practice of leaving Brett in the bath is somewhat inconsistent but of the nine carers who gave evidence Mr Fraser, Mr Churchill, Mr Parmar, M/s Page and to some extent M/s Hofmeier, all accepted the practice which occurred on the evening of the 6th August, namely that Brett was left alone in the bath for considerable periods of time and that he was checked basically by ear rather than by sight. Most of the above mentioned witnesses did indicate however that their usual practice was to carry out a visual check every five to ten minutes or so.

In fairness to M/s Hofmeier she clearly indicated that while she accepted the practice that had been of such long standing she did not always follow it herself and that she was uneasy with the practice but regrettably unable to ensure from her management position that the practice changed.

Mr Maher-Smith was employed as a carer at Nangor House for approximately six months and his position seemed to be that he accepted that Brett should not be left alone in the bathroom but that his instruction which he received from a Mr Ferguson was that it was alright to leave Brett alone for extended periods of time so for privacy and pleasure reasons.

M/s Henderson who at the date of giving evidence was the accommodation support manager had been employed for some seven months in 1998 at Nangor House in a period where the spa mat was not yet purchased and she indicted that it was her understanding of the work practice at that time that Brett was not left alone in the bath.

Mr Howe and M/s Burns had both been employed for about three months at Nangor House and both those carers indicated that their personal practice was to stay in the bathroom. Mr Howe indeed indicated that he had never seen anyone leave Brett alone in the bath during the period that he was employed at Nangor House. It is not necessary, I believe, in the particular circumstances of the evidence of the carers for me to make a final determination as to whether I accept the views put forward by Mr Howe and M/s Burns when it is compared with the over whelming body of evidence from six other workers suggesting an entirely different practice. I must say however, that I was not impressed by the evidence given by Mr Howe, in particular, as it seemed to me at the time to be forcefully given with a view perhaps to protect his personal position. Something of the same criticism might be attached to M/s Burns.

However, I feel in view of the over whelming body of evidence it is clear that the practice which had existed for many years at Nangor House was that that all carers with perhaps isolated exceptions accepted the practice that Brett was left alone in the bath for considerable periods of time. The reasoning behind this seems quite clear in that the individual carers were of the view that Brett’s privacy was an issue and also it is clear that he enjoyed his bath and the view seemed to be that it was not appropriate to interfere with his enjoyment. The long safe history of the practice also induced a sense that there was indeed no risk attached to Brett being left alone in the bath.

A number of other issues arise out of the evidence of the carers which cause difficulty in attempting to ascertain with any degree of certainty what may have occurred in the bathroom on the 6th August which led to the death of Brett Ponting.

It is not clear from the evidence of Mr Fraser and Mr Parmar as to what procedure was followed concerning the filling of the bath nor is it clear from their evidence as to who turned the tap off.

Indeed, there is no evidence at all of anybody turning the tap off on this particular evening. There is no evidence from any source, other than M/s Hofmeier, who indicated that when she saw the bath empty it did not appear to her to have been very high at all, as to the level of water which ultimately ended up in the bath on the evening of the 6th August. There is a considerable body of descriptive evidence from all carers as to the amount of water which was put in from time to time varying from a few inches to the description of Mr Churchill of it coming up to a level at the back of Brett’s ears and just under his chin.

There is a dispute in the witnesses as to how Brett was placed in the bath. M/s Page has an entirely different memory of the process from everybody else. The balance of the evidence however clearly indicates that the spa mat was firstly placed in the bath and the documentation from the manufacturer of the spa mat indicates that its construction required portion of it to be on the contoured end of the bath and portion of it to be on the flat bottom of the bath. Once the mat was placed in position Brett was then placed into the bath following the contours of the bath.

That is to say that his back was up against the contoured end of the bath and the rest of his body on the bottom of the bath. There is no agreement between the carers as to the process followed in filling the bath. Some witnesses suggest that there was water in the bath, others that there was no water in the bath at the time he was placed into the bath.

Mr Fraser’s evidence is that there was a little bit of water in the bath when Brett was placed in it and then it was filled up about half full and that the water came up to about the middle of Brett’s chest.

Mr Parmars’ memory is that the tap is turned on before Brett was put in the bath and turned off before he was put in the bath. That is to say, that the amount of water in the bath was in the bath before Brett was placed into the bath. These two versions are of course inconsistent and it is difficult to form any view as to which of them may be correct. This uncertainty in relation to the

evidence from all the carers concerning the process of filling the bath and their confused memories as to the level of water which was in the bath at the time Brett was in the bath creates a real problem in forming a concluded view as to what level of water may have been present in the bath on the evening of the 6th August. It is clear on the evidence that the level of water was a decision made by individual carers at the particular time. It is also clear that the level was sometimes quite different. Some suggestion was made, for example by Mr Maher-Smith that the water level was of such a height so as to enable Brett to place the side of his face into the water to feel the impact of the bubbles on his face.

One of the issues which must be ultimately confronted in this inquest is an attempt to ascertain the mechanism which resulted in Brett’s drowning. It is clear that one of the potential causes of his death was the level of water in the bath.

The evidence of all of the carers clearly indicates that Brett enjoyed his bath immensely and perhaps even more so after the purchase of the spa mat. There is evidence from other witnesses that he had a particular fondness for water, and indeed enjoyed the swimming exercises that he participated in at Sharing Places. It is also clear from the evidence that this enjoyment was reflected in a great deal of vocal noise and also banging on the side of the bath. All of the carers agreed that Brett moved around to a considerable degree while he was in the bath notwithstanding that he had a severely restricted capacity for movement. There is evidence that he was able to move his arms and his head and he also had a capacity to lift his bottom off the bottom of the bath and also to bend forward from the waist. It is clear from the evidence that this amount of activity generated a sufficient degree of noise to allow the carers to listen to Brett’s activity as a form of supervising him while he was in the bath. It is also clear from the evidence that Brett was not always noisy in the bath and a number of carers gave clear evidence of periods when he remained quiet and motionless in the bath Some carers evidence indicated that in this situation they would check upon him, indeed the statement or the information provided by Mr Fraser to M/s Hayman indicates that it was a result of Brett becoming quiet that Mr Fraser chose to check on Brett in the bath on the evening of the 6th August.

Such a procedure is of course fraught with potential danger. If as Mr Fraser in particular indicated periods of quiet were not uncommon, then of course over a long period of time even the fact that Brett became quiet would not have necessarily triggered an alarm in the minds of carers like Mr Fraser who were used to such episodes.

There was also a lack of certainty as to the amount of space which Brett occupied in the bath.

There is clear evidence that there was a distance of something up to four inches between Brett’s feet and the tap end of the bath. There was some evidence that Brett had on occasions knocked out the hose, which was part of the spa mat machinery, and that a deliberate effort was made by carers to place him in such a position where his movement would not result in the hose being kicked out by Brett’s activities in the bath. Looking at the material proved by the manufacturer of the spa mat the hose seems to be positioned somewhere in the general vicinity of where the plug would be positioned in the bath. Indeed, looking at the photographs 6 and particular 6A it is clear that the hose is presently there in the bath in the area of the plug. The plug is clearly some little distance from the end of the bath.

There is again a lack of clarity in the evidence as to whether Brett moved down the bath even while seated on the spa mat. There is some evidence to suggest that Brett moved both up and down in the bath and when discovered in a moved position was merely returned to the original position. It would in my view be an inference to be drawn from the evidence that the activities of Brett in the bath may well have resulted in movement of his body either up or down. The lack of certainty concerning the depth of the water in the bath put together with the possibility of movement by Brett in the bath raises the possibility that Brett drowned as a result of some

movement by him in the bath which resulted in his face going under the water.

A further issue relating to the practices of bathing generally and in particular on the 6th August relates to the question of the bathroom door. I have already made some mention of the position in relation to the door but feel it is appropriate to make some further comment at this time. Mr Fraser’s evidence is that the bathroom door was left open when he departed but was closed when he returned. Mr Parmar, despite initially saying that he had seen the bathroom door closed upon his return, clearly resiled from that position and finally indicated that his position was that Mr Fraser had told him the door was closed. Mr Fraser, in the information provided to M/s Hayman, makes no mention of the door other than to say at point 10 "the bathroom door was always kept open and was on this occasion". (Ex 35) There is some evidence from M/s Hofmeier that there had been an existing practice prior to her taking over as the DSO2 to leave the door shut while Brett was in the bath. She indicates that she had issued a direction to prevent this practice continuing. The evidence therefore concerning the position of the door at the return of Mr Fraser is unclear like so much of the evidence in this inquest. The only evidence to suggest the door was indeed closed is from Mr Fraser himself and it is not supported either by the information provided by him at the first opportunity to M/s Hayman or by any other evidence. If the door was indeed shut as Mr Fraser suggests, than this is perhaps consistent with the long term practice with caused M/s Hofmeier concern namely, that the door was as a matter of practice closed. In all of the circumstances of the evidence I am not able to find that the door was indeed closed. As I have already indicated in relation to my concerns with Mr Fraser’s evidence concerning the positioning of Brett in the bath, it is my view that his evidence is not sufficiently reliable to allow me to form a concluded view that the door was shut either at the time Mr Fraser and Mr Parmar left the room or more specifically when Mr Fraser returned to the bathroom.

A further issue relates to the question of the position of the spa mat as shown in photograph 6A.

There is no evidence to indicate how the mat ended up in this disturbed condition. There are a number of possible causes for its depiction in the photograph; either that it was moved by Mr Fraser or that it had somehow moved while Brett was in the bath and that this movement caused Brett to become immersed in the water. Either conclusion would be, in my view, merely a speculation and not able to be satisfactorily inferred from any of the available evidence. In all the circumstances I am not able to form any view as to how the spa mat ended up in the position shown in photograph 6A.

THE ROLE OF MANGEMENT AT NANGOR HOUSE The staffing arrangements at Nangor House were that the workers were either described as DSO1 or DSO2. The DSO2 at all relevant times was M/s Hofmeier. The DSO2 had a dual role in Nangor House in that the carer who held the DSO2 position was required to be a hands on worker in the same way as a DSO1 but also had a managerial role. Special provision was made within the rostering arrangements to allow the DSO2 some particular time for management responsibilities. One of the management responsibilities of the DSO2 at Nangor House was to ensure that all of the workers conducted themselves in such a way as to ensure proper care and supervision of all of the residents. It is clear from the evidence given particularly by M/s Hofmier that this role is a complicated position in that the holder of the DSO2 position must not only be part of the working staff at the house but also part of the management both at the house and externally in the Disability Services Area. M/s Hofmeier was not able to adequately perform the role of a supervision in the sense that she was clearly aware of the accepted practice of leaving Brett alone in the bath and notwithstanding that she disapproved of this practice had not been able to do anything to prevent it occurring other than perhaps in relation to new staff. It may be that the joint role of a DSO2 creates tensions that are very difficult for some holders of

that particular office to adequately manage.

The next level of management above the DSO2 is the accommodation support manager which at relative times was a position held by M/s Henderson. M/s Henderson had had personal experience in Nangor House but indicated in her evidence that she was not aware of the longstanding practice involving leaving Brett alone in the bath. She did indicate that she had some form of discussion with M/s Hofmeier about her particular difficulties in changing the work practice but it is clear from her evidence that not only was she not aware of the practice but had done nothing to support M/s Hofmeier in solving the problem which clearly confronted M/s Hofmeier.

The evidence clearly indicates that there must be a reconsideration of the role of a DSO2 in the day to day operation and management of accommodations provided by the Disability Program.

Either a greater degree of training must be given to the holders of the DSO2 position together with a greater degree of support than has been exhibited in relation to Nangor House or else there must be a change in the role of the DSO2 so as to clearly indicate that they are indeed in a management position and not just one of the workers in the individual house.

I do not wish to be unduly critical of either M/s Hofmeier or M/s Henderson. I indicated on a number of occasions during the inquest that it is clear that the work done by carers in accommodation provided by Disability Services is very challenging and no doubt in many cases extremely difficult. It is not my intention as the Coroner to attempt to impose additional unnecessary burdens on these carers as I feel the burden they already carry is substantial.

However, it is clear on the evidence that both M/s Hofmeier and M/s Henderson together with Mr Fraser and Mr Parmar have failed in their duty to ensure the proper care and supervision of Brett. M/s Hofmeier has failed in her responsibilities to ensure that she instituted management procedures at her level which enabled those working in Nangor House to clearly understand their responsibilities in caring for and in particular protecting the safety of Brett. Her inability to prevent what was clearly an unsafe practice of leaving Brett alone in the bath must be regarded as a serious failure on her part. Similarly, her failure to ensure that the IP was worded in such a way as to make it clear to all workers the precise procedure to be followed in relation to Brett’s bathing and in particular to the requirement to ensure that someone remained in the bathroom with Brett was also a failure on her part.

M/s Henderson has similarly failed in her responsibility as a manager to ensure that procedures were in place to prevent the type of ambiguity which was present in the IP and more importantly to support and be aware of the problems that M/s Hofmeier was having in her management role.

Mr Fraser and Mr Parmar have also failed in their responsibilities to ensure that what was clearly an unsafe practice did not occur.

The conclusion to be drawn from the evidence concerning the management in this restricted way is that there are clearly tensions in the role of a DSO2 which must be looked at to ensure that the holder of that office is properly able to manage the staff below the DSO2 position and to ensure that instructions given are clear and unambiguous. The DSO2 has a particular role in relation to the preparation and finalisation of IP’s. It is clear and accepted by everybody that the instruction in Brett’s IP concerning supervision in the bath was inadequate. One of the critical roles of a DSO2 together with the accommodation support manager and others in the management hierarchy is to ensure that such ambiguity does not occur again.

Evidence was given by M/s Grayson the Director of Disability Services of the employment of

risk managers. No doubt these persons when employed and fully functional will be able to perform an additional role in ensuring that the sort of ambiguity present in the IP does not occur.

Similarly it is essential that the risk managers ensure that the DSO2 and DSO1s do not engage in work practices that vary according to the whim of individual workers. It is clear from the evidence in this inquest that great scope for individual interpretations may exist and that such scope may indeed be undesirable. It is not within the ambit of this inquest to consider what direction ought to be given as to the limitations on individual discretion of carers in such places as Nangor House but it is clear from the evidence that there is a great need to ensure that all carers operate in much the same way. For example in relation to the bathing of Brett Ponting it is clear that there was no universally accepted procedure in relation to any of the activities involving for example, the filling of the bath, the placing of Brett in the bath, the supervision in the bath and it is no doubt desirable, particularly where there is a regular change over of staff in a house, to ensure that there are very clear instructions available and further that the individual carers are required to read and be familiar with all of those instructions. There must also be proper supervision to ensure that the instructions are properly carried out.

PRIVACY This was a issue about which considerable evidence was given and it is necessary to look in a general way at the problems that the concept of privacy presents in relation to the administration of houses such as Nangor House and more particularly to the problems that the concept and its understanding and interpretation by carers presents in relation to the proper care and support of residents in houses such as Nangor House.

The concept of privacy in its application to accommodation provided by the Disability Services is, as I understand it, in two parts.

The first is the privacy legislated in the Commonwealth Privacy Act 1988. This legislation as I understand it restricts information which can be supplied to others about an individual. While this concept was not a particular problem in the inquest it was referred to particularly by Mrs Ponting as a severe handicap when consideration is given to the proper mix of residents in a particular residence. It is not within the scope of this inquest to canvas the issue as raised by Mrs Ponting but it is clear that the restrictions imposed upon management by the Privacy Act do raise a very real and restrictive barrier to what might be regarded as the proper, efficient and sensible running of residences such as Nangor House.

The second concept of privacy is one which flows from the human rights principles which are set out in the Disability Services Act 1991. These principles in a general sense are aimed at ensuring that every individual covered by the provisions of the Disability Services Act is dealt with appropriately and that all actions are conducted, bearing in mind as the Act says that: "people with disabilities are individuals who have the inherent right to respect for their human worth and dignity". This principle is of course highly commendable but its application in an environment such as Nangor House and more particularly the understanding of its application by the carers in residences such as Nangor House raises immediate day to day problems. The scope of this particular problem is clearly evidenced in the confusion displayed by the various carers of what rights, if any, Brett had in relation to his bathing routine. Some carers were of the view that the reason Brett was left alone in the bath was to ensure that his privacy, as understood by the carers to be protected by the Disability Services Act, was not infringed upon. Others, perhaps more appropriately, including Mrs Ponting took the view that Brett’s circumstances were such that privacy was not and indeed never should be an issue in relation to such activities as bathing. As Mrs Ponting so appropriately put it, Brett was not a person who had an understanding of privacy as it applied to himself. From his first days he had been subject to procedures and activities including matters revolving around his personal care which inevitably led to him losing the

privacy that normally abled people would regard as fundamental.

This inquest is not the appropriate place for a careful and considered consideration of the proper application of the laws enacted to protect individuals and their privacy but it is clear that there needs to be a very careful consideration either by the risk managers referred to by M/s Grayson or some other body of the ramifications of implementation in this particular environment of those legislative commands. At the very least there is a need on the part of management to ensure that all carers and all parents/guardians fully understand that there is an inevitable tension between those pieces of legislation and their implementation and the practical administration of a house by the Disability Services Program. It is clear from all of the evidence that this tension is the cause of great concern to many of the stake holders involved in attempting to provide proper care for those members of the community who suffer from various forms of disability.

As a starting point in relation to any consideration of these tensions it is clear that there must be an assessment made in relation to each individual resident of the reality of the need for privacy compared to the reality of the need for safety. Some of the carers who gave evidence before me clearly, and I believe correctly, made that assessment and decided that safety was the prime responsibility of carers in relation to their carrying out of their duty of care to individual residents. This view however, did not necessarily seem to be one that was clearly accepted or indeed understood by all those who appeared before me. There is clearly an urgent need for the management of the Disability Program to ensure that proper training structures are in place to encourage carers to put the safety of the individual before any preconceived idea of the right to privacy of an individual. It is perhaps not clearly understood that what might be occurring is that the views of the workers as to their understanding of what they as an able bodied person would require as a matter of privacy, may be quite different to what a disabled person needs as a matter of safety

HOW DID BRETT PONTING DROWN The Coroner’s Act requires amongst other things that I find, if possible, the manner and cause of death of Brett Ponting. The evidence of Dr Jain clearly indicates that Brett’s death was caused by cerebral hypoxia caused by drowning. The real difficulty in relation to this inquest is to find the manner in which Brett drowned.

There are three possible causes of Brett’s drowning.

The first is a submission made by Mr Bradley who appeared on behalf of Mrs Ponting that Brett’s death was caused as a result of the intervention of a fellow resident more particularly T.

The second suggested possibility is that, bearing in mind Brett’s previous history of epilepsy, he suffered from an epileptic fit in the bath and drowned.

The third possibility is that as a result of the level of the water and movement in the bath by Brett his face became immersed in the water and he drowned.

Before turning to consider these possible causes it is necessary briefly to consider the standard of proof required to make findings in coronial inquests. Gobbo J. in Anderson v Blashki (1993) 2V.R.89 considered this question in some detail. His Honour referred to the general comments concerning the standard of proof to be found in Briginshaw v.Briginshaw (1938) 60 C.L.R.336 and other authorities set out in his decision and gleaned from those authorities a test which is perhaps best summarised by referring to the head note of the decision: "the standard of proof to be applied by the coroner in investigating a death is the civil standard of the balance of probabilities. Because of the gravity of the allegation, however, proof of the criminal act must be clear, cogent and exact, and when considering such proof, weight must be given to the

presumption of innocence. The extremely deleterious effect the finding had upon the applicant’s character, reputation and employment prospects demanded a weight of evidence that was commensurate with the gravity of the allegation." In Anderson v Blashki a coroner had found that a nursing sister had assaulted a patient and by that assault had contributed to the patient’s death. This finding was overturned by His Honour, Gobbo J.

In considering the submission put forward by Mr Bradley on behalf of Mrs Ponting it is necessary to bear in mind the comments made by His Honour, Gobbo J, concerning the need for "clear, cogent and exact evidence". The evidence upon which the submission concerning the involvement of T is based is largely of a speculative and indirect nature. There is no evidence from any of the witnesses to suggest that T was in the bathroom on the evening of the 6th August.

Mr Churchill, who was not on duty on the 6th August, refers to an incident which happened, he thinks, some months before August 2000 when T was found in the bathroom while Brett was in the bath. Mr Churchill’s evidence clearly indicates that the conduct of T at that time was not in any way aggressive but seemed to be playful and an attempt to be helpful. Mr Churchill further states that when he attempted to remove T from the bathroom T was reluctant to go and it required some degree of actual physical movement on the part of Mr Churchill to remove T from the bathroom.

There is also some evidence from Mr Maher-Smith that he had on two occasions seen T in the bathroom while Brett was in the bath and that he believed that T went into the bathroom and annoyed Brett. He also indicated that he had heard that there may have been at least one other incident, perhaps the one referred to by Mr Churchill, in which T had been in the bathroom while Brett was in the bath. Mr Maher-Smith also gave evidence of a particular form of scream that he became familiar with when Brett was being annoyed in any environment by T. There is no evidence from anyone of any difference in any noise levels or type of noise emanating from the bathroom on the evening of the 6th August. Indeed it might be said that there is no evidence of any noise from the bathroom on that particular evening.

There is also some evidence of an incident involving T and Brett in the music room on an earlier occasion when it is said that Brett suffered some injuries. Mr Churchill gave some evidence about this and indicated that his memory of such an incident was that T in fact turned his aggression upon the carer rather than upon any fellow residents.

Mrs Ponting in her evidence and in particular in her statement given to Mr Robert Gray detailed a large number of concerns that she had concerning the contact between her son and T. Much of the material contained in her evidence is of a hearsay nature and some of it, in particular her concern that T had been involved in some incident that resulted in her son’s leg being broken is apparently incorrect. There is little in her evidence which takes her submission beyond the factual material which I have already outlined from Mr Churchill and Mr Maher-Smith.

Significantly, the incidents referred to by Mr Churchill and Mr Maher-Smith all involve the situation in which T was in the bathroom or in the music room with Brett when discovered. In each of the incidents described the carers was required to remove T from the room. This would suggest that if T had gone into the bathroom then his past history would suggest that he would have remained in the bathroom until found by one of the carers. This was clearly not the case.

The submission relating to the involvement of T does not as I understand it, suggest that any action occurred on the part of T which was a deliberate attempt to injure Brett but if there was any involvement on the part of T then it was of such a nature as to cause Brett to become immersed in the water. As I have already indicated the standard of proof required before I could

be satisfied that T either accidentally or deliberately played some role in the death of Brett Ponting is perhaps a higher standard of proof than the normal civil standard but not the standard of beyond reasonable doubt.

His Honour Gobbo J referred to Barten v Williams (1978) 20 A.C.T.R.10 where Blackburn C.J.

regarded the test as being, that the balance of probability standard is not to be applied merely mechanically on a serious issue such as a decision which could lead to the cancellation of a builders licence and determine his capacity to earn his livelihood as a builder. The civil standard is qualified so that the court can regard a fact as established only if it can entertain a reasonable satisfaction of its truth.

While I accept that the impact upon T, particularly because of his intellectual disability, may be regarded somewhat differently to the cancellation of a builders licence with its impact upon the capacity of a builder to earn his livelihood, it seems to me that any finding that suggests that any person has by accident or with deliberation caused the death of another person is a matter of such serious consequence that the concepts considered by both Blackburn C.J. and Gobbo J. require me to have a strong body of evidence upon which a finding might be made adverse to T.

I have already indicated that there is no direct evidence to suggest that T was either in or anywhere near the bathroom at the relevant times on the 6th August. There is indeed some evidence to say that he had on previous occasions been in the bathroom but there is nothing in that evidence that would suggest he ever conducted himself in such a way as to endanger Brett Ponting. The evidence suggests that Brett was upset from time to time with contact that T insisted on having with Brett. There is a body of evidence that suggests that T was a person who wished to be as helpful as he could and to assist other people including carers and indeed other residents. While there may be some slight evidence that he did from time to time act in an aggressive way towards others including carers there is no direct evidence before me to suggest that he ever acted in an aggressive way towards Brett. The evidence generally suggests that the conduct of T towards Brett was more of a caring or playful approach and perhaps might be best described as an invasion of "Brett’s space".

The evidence before me does not allow me to be satisfied, applying the above tests, that T played any role in the death of Brett Ponting.

The second suggested cause of Brett’s drowning, was the possibility that he may have had an epileptic fit. The medical evidence of Dr. Doumani contained in his report (Ex. 30) states that in May 1987 Brett had suffered a generalised seizure. Dr. Doumani indicates that this is the only seizure that he was aware that Brett had ever suffered. Dr. Doumani had been the regular treating general practitioner for a long period of time and it is agreed was familiar with Brett’s medical history. Following the seizure in 1987, Dr. Doumani prescribed anti-seizure medication. This was halved in February 1999 and later in 1999 was again reduced until in June 1999 it was ceased. Over that whole period, as I understand it, Brett had remained seizure free. Based upon this history Dr. Doumani was of the opinion that it was very unlikely that Brett suffered a seizure at the time of his drowning. Of course, as I understand it, it was not a possibility that might be totally ruled out.

Evidence was also given by Dr. Jain who had conducted the post mortem upon Brett and he indicated that he was not able to say as a result of the autopsy that Brett had had a seizure. He stated this on the basis that a seizure may not leave any definitive signs discoverable at post mortem.

The medical evidence therefore indicates that while Brett suffered a past seizure there had been no evidence of any seizures for thirteen years. Notwithstanding this it is of course impossible to

rule out the fact that a seizure may have occurred. There is some evidence of the presence of a piece of pineapple in the bath which may have come from Brett and there is the statement made by Mr Parmar to M/s Hayman that Brett had vomited in the bath. As I understand it vomiting may be a sign that there had been an epileptic seizure.

Bearing in mind the test which I have already enunciated above as to the standard of proof there is no proof to that standard which would allow me to make a finding that Brett died drowned following an epileptic seizure which he had in the bath on the evening of the 6th August.

The third possibility to explain the drowning of Brett is that his face somehow becomes immersed in the water. There is of course no direct evidence as to what occurred in the bathroom after Mr Fraser and Mr Parmar left, but it is clear on the evidence that there is a substantial degree of uncertainty on the part of Mr Fraser and Mr Parmar as to what precisely had occurred in the bathroom before they left. I have covered in some detail the evidence of both Mr Fraser and Mr Parmar and have already commented to some degree upon my views of their evidence.

One of the particular concerns in relation to what occurred in the bathroom before they left is the issue of the level of water. Neither Mr Fraser nor Mr Parmar was able to give direct evidence of who turned off the tap. There is no evidence alternatively to suggest that the tap was not turned off and that it ultimately led to the bath over flowing onto the floor. Some questions were put to various witnesses concerning this issue and the general impression one gains from that evidence is that there was no sign of any flooding in the bathroom observed by anybody who gave evidence before the inquest. M/s Hofmeier who was early on the scene did not recall any such flooding nor did Mr Fraser nor Mr Parmar. It would therefore seem to be a reasonable inference to draw from the evidence that the taps were turned off at some point in time.

There is evidence from a number of witnesses as to the varying levels of water which were in the bath at various times. The level would seem to be left to the individual whim of the carer responsible for the bathing. The level would seem to range from just a few inches to a sufficient depth of water to allow the water to come up behind the ears of Brett and under his chin. There is also evidence to suggest that when the spa mat was activated this generated an increase in the volume of water in the sense the bubbles moved the water in such a way that it may have created an artificially higher level of water in the bath than if the bath had been inactivated.

There is a considerable body of evidence concerning movement capacity which Brett had in the bath. It is very difficult listening to this evidence to form a picture of how Brett moved about in the bath other than to say that it is clear that he had a capacity to move up and down in the bath, to move sideways in the bath, to move his head in the bath and to move his arms in the bath. It is also clear that carers had found him from time to time in a position different to that which they thought they had left him in when he had been placed in the bath. It seems to me to be possible to infer from all of the evidence that the water on this occasion was perhaps higher than Mr Fraser or Mr Parmar may chose to remember and that the activation of the water and the movement in the bath that Brett was capable of caused his face to come into contact with the water in such a way that he drowned.

There was some evidence from the carers at Sharing Places that indicated; if his face or mouth got into the water then he would not have the capacity or the awareness to close his mouth and that he clearly had a degree of restriction in how he might move his head so as to remove his head from the water if he was in risk of drowning.

The real question is whether in the circumstances of the evidence I am able to properly draw an inference to allow me to find that Brett drowned as a result of the combination of the water level

and his movement in the bath. This combination on the evidence would seem to be able to suggest that he may have found himself in a situation where his face became immersed and he subsequently drowned. I have indicted above the nature of the test to be applied in making a finding in an inquest. The real issue is whether I am properly able to draw an inference from the evidence or whether the absence of any direct evidence merely allows me to speculate as to the precise mechanism which caused Brett to drown. I have given this matter careful and serious consideration and while I am attracted to the third theory by inference I am ultimately not able to be comfortable with drawing such an inference as I feel there is a lack of direct evidence which would properly allow me to draw that inference. The cause of Brett’s drowning is in my view one only of speculation and regrettably I am not able to find the manner of the drowning.

CONCLUSION The practice of allowing Brett to remain in the bathroom alone, a practice followed by many of the carers at Nangor House, but particularly by Mr Fraser and Mr Parmar, was clearly fraught with potential danger to Brett’s well being. The uncertainty in relation to the bathing procedures including the ambiguity of the instruction in the IP and the accepted capacity of individual workers to apply their personal discretion to the procedure is obviously unsatisfactory. The carers at Nangor House at all levels had a clear understanding of the activities which Brett engaged in while in the bath and it ought to have been clear to anyone who gave those activities any consideration, in light of their responsibility to ensure the safety of Brett while in their care, that there was a clear and identifiable risk in leaving him alone in the bath. The degree of movement of which Brett was capable clearly suggests the need to ensure that there was supervision so as to prevent any possibility of Brett’s movement in the bath putting him at risk of drowning.

While I am not able to ultimately find the manner of Brett’s drowning, it seems clear, as I have said, that the more likely manner involved his face or head becoming immersed in the water.

Clear signs of this danger had manifested themselves to workers in the past where Brett had been observed placing his face into the water to feel the bubbles on his face, where he had moved in the bath and where he had kicked out the hose. This potential risk together with Brett’s known limitations of movement clearly indicate that greater consideration had to be given to his safety than was the case at Nangor House.

The failure of Mr Fraser with his many years of experience to appreciate as dangerous the practice he followed, of in effect relying upon hearing Brett’s activities rather than observing Brett’s activities, is especially serious. It is also clear that this danger ought to have been apparent to Mr Parmar and indeed the evidence indicates that it was apparent to M/s Hofmeier.

None of these three workers took any appropriate action to ensure that their responsibility to Brett as carers was properly carried out. Each of these three persons have in the ways I have already mentioned failed in their responsibility to ensure that Brett was properly and safety cared for in Nangor House.

M/s Henderson as the immediate supervisor of M/s Hofmeier has also failed in her responsibilities to properly care for Brett as it is clear on the evidence that she was aware at least of concerns on the part of M/s Hofmeier concerning the practice but had done nothing to support M/s Hofmeir or of her own volition to ensure that her management of Nangor House was appropriate to discover the practice which on all of the evidence had been in place for many years, including during the period that M/s Henderson was a worker at Nangor House. She has also failed in her management responsibilities to have in place a system of management which

would ensure that there was no ambiguity in instructions contained in IP’s and also to ensure that written instructions, for example the timing of the bathing of Brett, were adhered to or if inappropriate to have such instructions changed. Similar comments apply in relation to M/s Hofmeier.

I am of the view that adverse comments in the sense that the abovementioned persons have failed in their responsibility to properly care for Brett and to do all things reasonably necessary to ensure his safety must be made.

The evidence indicates that while the systems generally in place for the management of Nangor House and therefore for the supervision and care of Brett were satisfactory, the implementation at the house level was not satisfactory. The evidence of M/s Grayson suggests that she was not aware of the individual practices existing at Nangor House and I would not necessarily expect her to have such a knowledge but ultimately she is responsible for the whole of the administration of ACT Disability Services. I do not believe however in all of the circumstances that it would be appropriate to make any adverse finding against M/s Grayson personally, as the failures in administration are particular rather than general.

The death of Brett Ponting clearly resulted directly from the failure of the carers to properly supervise him while he was in his bath. Notwithstanding that I have been unable to formally ascertain the manner of his drowning it is clear that any of the three possibilities referred to above could have been avoided by adequate supervision.

FINDINGS, RECOMMENDATIONS AND COMMENTS Findings I am required under Section 52 of the Coroner’s Act 1997 to find, if possible,

(a) the identity of the deceased; and

(b) when and where the death occurred; and a. the manner and cause of death I, accordingly, make the following findings: a. The deceased was Brett Ponting b. The deceased died at The Canberra Hospital at 12.30pm on the 7th August 2000 c. The deceased died as a result of cerebral hypoxia caused by drowning. The evidence indicates that the deceased drowned at 44 Nangor Street, Waramanga at about 5.30pm on the 6th August 2000. I am not able on the evidence before me to find the manner of his drowning but I am of the view that the drowning was accidental.

Recommendations (Section 57) Section 57 of the Coroner’s Act allows a Coroner to make recommendations to the Attorney-

General on any matter connected with an inquest including matters relating to public health or safety. Based upon the evidence put before me during the inquest I would make the following recommendations:

1. I would recommend that there be an urgent review perhaps by the risk managers referred to by M/s Grayson of all work practices in houses managed by ACT Disability Services. The evidence in this inquest suggests that there may be situations in which individual workers operate work practices which may be inappropriate. Such an inquiry will no doubt require the complete co-operation of all levels of staff at ACT Disability Services.

(2) I would recommend that there by an urgent review conducted by Disability Services of all individual plans and other written instructions to ensure that instructions contained therein are clear and unambiguous. This review should also give consideration to the issue of the exercise of individual discretion by carers in carrying out such instructions and in the execution of their responsibilities in caring for residents. The differences in approach by the various carers who gave evidence before me relating to the bathing procedure needs to be considered to ascertain if such variances are desirable.

(3) I would recommend that there is a review of the management structures to ensure that all persons in a management role have the proper qualifications and training and more particularly support and supervision to ensure that they are properly able to perform their management responsibilities.

(4) I would recommend that there be a review of all staffing attached to Disability Service homes particularly long term staff members to ensure that all staff employed to care for and supervise residents are properly trained, supervised and fully aware of their duty of care particularly in relation to matters of safety concerning each resident. It may be necessary in some cases to provide re-training for some of the longer serving staff.

1. I would recommend that there is a review of the training processes in relation to the operation of the Commonwealth Privacy Act and the ACT Disability Services Act with particular reference to the entitlements of residents to privacy in circumstances where matters of safety of the individual residents is involved.

COMMENTS (Section 52) Section 52 of the Coroner’s Act allows a Coroner to comment on any matter connected with the death, fire or disaster including public health or safety or the administration of justice. Based upon the evidence before me during the inquest I would make the following comments: (1) Evidence was given by M/s Grayson of the employment of persons described as risk managers. The role of these persons was outlined in detail in M/s Graysons’ evidence and I do not intend to revisit that evidence in this comment.

The evidence led in this inquest however, clearly indicates that any person employed as a risk manager must very carefully and thoroughly examine the actual operations of individual houses and more particularly the work practices of individual carers.

I have made a number of observations and recommendations which I hope will illuminate problems, which may well be present in other houses, which have been exposed in Nangor House. The legislative frame work which controls the

operation of ACT Disability Services is based upon the Human Rights principals enunciated in Schedule 1 of the Disability Services Act. These principals set out, amongst other things, the following aim of the provision of services for disabled people that: "all people with disabilities are individuals who have the inherent right to respect for their human worth and dignity." The evidence in this inquest clearly indicates that there is a practical need particularly in relation to the proper care and supervision of substantially disabled persons of a high level of uniform care and supervision. The challenge facing the providers of services for disabled people is to properly balance the clear need to provide this high level of uniform care and supervision with the inherent right of disabled people "to respect for their human worth and dignity". The tragedy of the death of Brett Ponting clearly illustrates the need for considerations of safety of the individual disabled person to out weight all other considerations including privacy.

I am of the view that the employment of risk managers does of itself perhaps create a risk in the sense that unless the persons employed to perform this role are able to clearly understand, after proper investigation, precisely what occurs in each individual house then any benefit which might flow from their appointment will be lost. The employment of risk managers must not be allowed to become merely another layer of administration in the provision of services to disabled persons in the territory. It must be used as a tool for management to clearly administer and supervise all of the activities of carers in each individual house.

An example of what I am suggesting can be found in the activities of Mr Fraser. It is clear on all of the evidence that Mr Fraser had conducted his activities in relation to Brett’s bathing for a great many years and that his clearly unsafe work practice was known to all other carers and indeed to some level of management.

No action was ever taken to review the practice of Mr Fraser to ascertain whether indeed the apparent unsafety represented a real risk to Brett or whether if it was unsafe, this level of unsafeness was acceptable. I understand that such decisions may be difficult and complex, but it is clear that the result of such failures to investigate and where appropriate correct such work practices can lead to tragedies such as the death of Brett Ponting.

1. I would also wish to follow the above comment by making a further comment in relation to the concept of "dignity of risk". This concept was referred to, from time to time, by a number of witnesses and it appeared to be a significant factor in relation to the care and supervision of disabled people in the Territory. The evidence would tend to suggest that there is a danger that the term "dignity of risk" has become something of a slogan and in many ways may in reality be inappropriate and less than meaningful The right to be safe is a fundamental human right and I have a concern that the concept of "dignity of risk" may in fact be reversing the reality of the "duty of care" which carers have to disabled persons. It may be more appropriate if a term "dignity of safety" was to be considered so that the primary element of the concern for the dignity of a disabled person was the safety of a disabled person and not what degree of risk may be acceptable to the decision maker in relation to each individual.

(3) I would wish to make one final comment in relation to the staff at Nangor House. While I have been critical of one of the work practices engaged in at that place, which tragically has resulted in the death of Brett Ponting, I feel it is appropriate to indicate that the evidence before me clearly shows that the staff who worked at Nangor House operated a caring and indeed loving environment in

which the residents had generally proper care and supervision. I would not wish it to be thought that this one failure of the operation of Nangor House reflects a position in which the residents are not properly cared for. All of the evidence indicates that all of the workers, particularly Mr Fraser, carried out their responsibility in an entirely proper and considerate manner. The one failure which I have criticised does not in my view, reflect other than an isolated situation which existed in the premises. The failure on the part of those who I have criticised to prevent the death of Brett Ponting was not bought about as a result of any ill will on the part of the carers but merely an attempt on their part to provide to Brett Ponting and those other persons who resided in Nangor House with him, the privacy and enjoyment of life which those not disabled would except as a matter of course.

ADVERSE COMMENT (SECTION 55 OF THE CORONER’S ACT 1997) Section 55 provides that before an adverse comment may be made against an identifiable person notice of the proposed comment is to be given to the individual who has a right to make a submission or provide a written statement in relation to the proposed adverse comment. Notices were given pursuant to Section 55 to Robert John Fraser, Jack Singh Parmar, Judith Ellen Hofmeier and Tracey Leeanne Henderson.

The notice to Robert John Fraser indicated that I was presently disposed to make an adverse comment in the following terms:

1. That as the key worker in relation to Brett Ponting you failed to adequately supervise him while he was in the bath so as to ensure that he was kept safe.

2. That as the key worker in relation to Brett Ponting you failed to ensure that the IP was worded in a clear and unambiguous manner so as to ensure that all carers of Brett Ponting clearly understood their responsibilities in relation to his care and supervision.

3. That as a carer of Brett Ponting you failed to ensure that his safety was protected.

4. That as a carer of Brett Ponting you failed to follow written instructions in particular the instructions relating to the bath times of Brett Ponting.

5. That as the senior worker on duty on the 6th August 2000 you failed to ensure that Mr Parmar conducted himself in such a way as to ensure the proper care and safety of Brett Ponting.

The Notice of Jack Singh Parmar indicated that I was presently disposed to make adverse comments in the following terms:

1. That as a carer of Brett Ponting you failed to ensure that the bathing activity in which he engaged was properly supervised.

2. That as a carer of Brett Ponting you failed to comply with written instructions in

particular in relation to the timing of the bathing of Brett Ponting.

3. That as a carer employed by ACT Disability Services you failed to draw to the attention of the management of ACT Disability Services the existence of a clearly unsafe practice relating to the bathing of Brett Ponting.

The notice of Judith Ellen Hofmeier indicated that I was presently disposed to make adverse comments in the following terms:

1. That as the supervisor of Nangor House you failed to ensure that the carers of Brett Ponting carried out their duties in an appropriate manner and with particular emphasis upon the safety of Brett Ponting.

2. That you failed to adequately supervise, in particular Robert John Fraser, to ensure that he carried out his duties in an appropriate manner to ensue the safety of Brett Ponting.

3. That you failed in allowing a system to operate in which written instructions in particular relating to the bathing of Brett Ponting were either ignored or were ambiguous and thereby allowed a system to continue which allowed all carers to conduct themselves in a way which they as individuals thought appropriate.

The notice to Tracey Leeane Henderson indicated that I was presently disposed to make adverse comment in the following terms:

1. That as the supervisor of M/s Hofmeier and the other carers at Nangor House you failed to properly supervise those carers so as to ensure that the procedures followed by them provided a safe environment for Brett Ponting.

2. That you failed to supervise M/s Hofmeier so as to ensure that she was given adequate support to be able to properly carry out her role as a supervisor.

3. That you failed to ensure that written instructions, particularly in the IP were clear and unambiguous.

A statement has been received from each of the above mentioned persons in response to the notice issued pursuant to Section 55.

I have given each statement careful consideration, and while I am sympathetic to a number of the matters raised in those statements I am not of the view that the statements are sufficient to persuade me from making the adverse comments to which I referred in the notices.

I accordingly make the following adverse comments about the conduct of Robert John Fraser:

1. That as the key worker in relation to Brett Ponting you failed to adequately supervise him while he was in the bath so as to ensure that he was kept safe.

2. That as the key worker in relation to Brett Ponting you failed to ensure that the IP was worded in a clear and unambiguous manner so as to ensure that all carers of Brett Ponting clearly understood their responsibilities in relation to his care and supervision.

3. That as a carer of Brett Ponting you failed to ensure that his safety was protected.

4. That as a carer of Brett Ponting you failed to follow written instructions in particular the instructions relating to the bath times of Brett Ponting.

5. That as the senior worker on duty on the 6th August 2000 you failed to ensure that Mr Parmar conducted himself in such a way as to ensue the proper care and safety of Brett Ponting.

I make the following adverse comments about Jack Singh Parmar:

1. That as a carer of Brett Ponting you failed to ensure that the bathing activity in which he engaged was properly supervised.

2. That as a carer of Brett Ponting you failed to comply with written instructions in particular in relation to the timing of the bathing of Brett Ponting.

3. That as a carer employed by ACT Disability Services you failed to draw to the attention of the management of ACT Disability Services the existence of a clearly unsafe practice relating to the bathing of Brett Ponting.

I make the following adverse comments against Judith Ellen Hofmeier:

1. That as the supervisor of Nangor House you failed to ensure that the carers of Brett Ponting carried out their duties in an appropriate manner and with particular emphasis upon the safety of Brett Ponting.

2. That you failed to adequately supervise, in particular Robert John Fraser, to ensure that he carried out his duties in an appropriate manner to ensure the safety of Brett Ponting.

3. That you failed in allowing a system to operate in which written instructions in particular relating to the bathing of Brett Ponting were either ignored or were ambiguous and thereby allowed a system to continue which allowed all carers to conduct themselves in a way which they as individuals thought appropriate.

I make the following adverse comments against Tracey Leeanne Henderson:

1. That as the supervisor of M/s Hofmeier and the other carers at Nangor House you failed to properly supervise those carers so as to ensure that the procedures followed by them provided a safe environment for Brett Ponting.

2. That you failed to supervise M/s Hofmeier so as to ensure that she was given adequate support to be able to properly carry out her role as a supervisor.

3. That you failed to ensure that written instructions, particularly in the IP were clear and unambiguous.

Section 55 (3) is in the following terms: "Where the person so requests, the Coroner shall include in the report the statement given under paragraph (1) (b) or a fair summary of it" No request has been made by any of the above mentioned persons but I feel that in view of the explanations offered in response to the notice, it is in the interest of justice that the statements provided, in response to the notice be attached to my report so that the responses are a matter of public record. These statements are annexure A to this report.

SUPPRESSION ORDERS A number of suppression orders were made during the course of the taking of the evidence in this inquest and these orders are continued.

STATEMENTS MADE BY MR FRASER AND MR PARMAR TO M/S HAYMAN I make reference in the report to the contents of exhibit 35 and as a result of the information contained in that exhibit I caused, after the conclusion of the evidence in this inquest, inquiries to be made of M/s Hayman as to whether any additional statement had been prepared by her and signed by either Mr Fraser or Mr Parmar. M/s Hayman was interviewed by the police and provided a statement indicating that no statements had indeed been made additional to the material contained in exhibit 35. A copy of the statement obtained from M/s Hayman to this effect was provided to all of the parties who appeared at the inquest and no request has been made to take any further action in relation to the material contained in exhibit 35. In those circumstances I do no feel that it is necessary for M/s Hayman to be called before the inquest to give the evidence contained in her statement.

Dated this day of August 2001.

MICHAEL A. SOMES Coroner