Finding into death of Kathryn O'Rourke

IN THE CORONERS COURT OF VICTORIA AT MELBOURNE Court Reference: COR 2018 2296

FINDING INTO DEATH WITH INQUEST Form 37 Rule 60(1) Section 67 oft he Coroners Act 2008 Deceased: KATHRYN O'ROURKE Delivered on: 23 June 2021 Delivered at: Coroners Court of Victoria, 65 Kavanagh Street, Southbank Hearing date: 21 June 2021 Findings of: SARAH GEBERT, CORONER Counsel assisting the Coroner: Vicki Toong, Coroner's Solicitor, Coroners Court of Victoria Page I

HER HONOUR: INTRODUCTION

1. Kathryn O'Rourke1 , born on 18 March 1970, was 48 years old at the time of her death. Kathryn is survived by her parents Claudia and Peter O'Rourke.

2. At the time of her death she resided at 1 James Street, Noble Park in a Department of Health and Human Services (the Department) Residential Supp01t Care Unit (the James Street residence). The James Street residence housed six female residents with high level care needs, which were varied and specific, and they required 24-hour care. The facility was subsequently transferred to Home@Scope._2

3. Kath1yn's medical history included severe intellectual disability, type 2 Diabetes Mellitus, hypercholesterolemia, Obsessive Compulsive Disorder and Bipolar Affective Disorder. She had regular reviews with her psychiatrist and was on a mental health plan. She also had regular reviews with her general practitioner (GP) and six-monthly reviews with her neurologist.

Kathryn had limited verbal language and communicated using a few keys words in sho1t sentences and by using gestures, facial expression and body language. She attended a day service which she had pmticipated in since she was a child.

4. Kathryn enjoyed swimming, animals, knitting, jewellery making, family visits, cooking, eating, having her nails polished, talking to her mother, collecting shells/feathers at the beach and being all dressed up to go out.3

5. On the morning of 10 May 2018, Kathryn choked on a piece of toast which she had taken from the breakfast table. She was transported by ambulance to the Dandenong Hospital but died on 16 May 2018 in the Critical Care Unit at 11.21 am having suffered a hypoxic brain injmy.

The Coronial Investigation

6. Kathiyn's death was rep01ted to the Coroner as it fell within the definition of a rep01table death in the Coroners Act 2008 (the Act). Rep01iable deaths include deaths that are unexpected, unnatural or violent or result from accident or injmy. Kathlyn was also a person placed in custody or care under section 3(1) of the Act. Therefore, her death was also reportable under this category.

1 Referred to as Kath1yn unless more formality is required.

223 June 2019.

3 Person Centred Plan dated May 2017.

7. The role of a coroner is to independently investigate rep01iable deaths to establish, if possible, identity, medical cause of death, and surrounding circumstances. Sunounding circumstances are limited to events which are sufficiently proximate and causally related to the death. The purpose of a coronial investigation is to establish the facts, not to cast blame or determine criminal or civil liability.

8. Under the Act, coroners also have the important functions of helping to prevent deaths and promoting public health and safety and the administration of justice through the making of comments or recommendations in appropriate cases about any matter connected to the death under investigation.

9. Victoria Police assigned Leading Senior Constable Allie Goff (LSC Goff) to be the Coroner's Investigator for the investigation. LSC Goff conducted inquiries on my behalf', including taking statements from witnesses and submitting a coronial brief of evidence. The brief includes statements from Kathryn's father, disability workers who cared for her, ambulance paramedics, treating physicians, Katlu·yn's GP, other relevant health professionals, the forensic pathologist who examined her and investigating officers, as well as other relevant documentation.

10. The Court also obtained Kathryn's medical records from the Dandenong Hospital and the Pakenham Medical Centre, where she had been a patient.

Disability Services Commissioner

11. I also considered the Investigation Report into disability services provided by Department of Health and Human Services to Ms O 'Rourke prepared by the Disability Services Commissioner (DSC) which was provided to the Court on a confidential basis. The DSC investigation was conducted under the auspices of the Disability Services Act 2016 with a different scope to that of a coronial investigation (although it may overlap). In this regard the Act provides that a coroner should liaise with other investigative bodies to avoid unnecessary duplication and expedite investigations. 5

12. I also sought a statement from the Department regarding a range of a matters relevant to the investigation. A comprehensive statement was subsequently provided by Carley Northcott, Director, NDIS Service Delivery, Operations Support, Community Services Operations Division dated 20 July 2020.

4 The carriage of the investigation was transferred from Deputy State Coroner English.

5 S.7 of the Act.

13. After considering all the available evidence, I determined that I had sufficient information to complete my task as coroner and that fmther investigation was not required.

14. As Kathryn died in care a mandatory inquest is required6 but following consideration of Ms Northcott's statement I dete1mined that no witnesses were required to be called.

15. The Comt consulted with Katlu·yn's family regarding this proposal and I was content that it was appropriate to proceed in this manner.

16. This finding draws on the totality of the coronial investigation into the death of Katluyn O'Rourke. Whilst I have reviewed all the material, I will only refer to that which is directly relevant to my findings or necessaiy for narrative clarity. In the coronial jurisdiction, facts must be established on the balance of probabilities. 7 Background

17. Katluyn's father said that Katluyn was born sh01t of Clu·omosome 21 or 22 and this condition became apparent when she was around 5 years old. Katluyn had lived with her pai·ents until aged 40 when they sought alternate residence for her given their advancing age. Mr O'Rourke said that she was first at a residence in NaiTe Wanen (April 2010 until June 2013) following which she spent about 6 months at a psychiatric ward at Casey Hospital. He said that her personality changed dramatically after her admission, and they thought this was due to her medication being too strong.

18. Katluyn moved into the James Street residence in 2014 requiring 24-hour supervision, which her father said she had not needed before.

19. Kathryn had very specific needs with food, including the consumption of only small soft pieces and thickened fluids otherwise, there was a risk she would aspirate. A 'Swallowing and Meal Assistance Care Plan' (reviewed in Februaiy 2018) was available as part of the evidence before the Comt. The Plan set out that Katlu·yn should be discouraged from putting too much food into her mouth at once and to eat slowly. She required assistance during meals, but when she became unwell, one on one assistance was needed.

20. Her Nutrition Review dated 20 September 2017, noted that Katluyn, 6 S52(b) of the Act.

7 Subject to the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336. The effect of this and similar authorities is that coroners should not make adverse findings against, or comments about, individuals unless the evidence provides a comfortable level of satisfaction as to those matters taking into account the consequences of such findings or comments.

tends to not chew and eats ve,y fast ;fshe isn't supervised by staffw henever she is eating. Staff have been sitting by her left s;de and giving her verbal prompts to slow down. Currently Kathryn is eating more textured food that is finely cut up.

21. Kathryn's 'Speech Pathology Dysphagia Assessment Report' dated 5 February 2018 noted that she required limited assistance with self-feeding however does require monitoring throughout her meals to ensure she does not overstiiff. The assessment results recorded that she presented with mild-oropharyngeal phase dysphagia8 characterised by hypoid elevation for fluids along with limited pacing abilities causing overstuffing.

22. The care needs of Kathryn were otherwise described by her disability workers as high, requiring assistance with all areas of her life including her personal care needs.

23. In the weeks leading to her death, Kathryn's mental health had been unstable. When experiencing episodes of mania Kathryn would remain awake and become overactive.

According to Dr Lanka Cooray, Consultant Psychiatrist, in c01Tespondence dated 12 April 2018 to her GP, She has been gradually deteriorating in her mental state for the past six months with significant depressive and manic episodes.

24. Her psychiatrist adjusted her medication and staff had been administering clonazepam, as required (2mg up to 3 tablets per 24 hours, when necessa1y).

25. On 8 May 2018, Kathryn's file notes recorded, Kathryn needed to be picked up this pm ji-om work due to her state ofe scalation. She required P RN on getting home as she startedf ood theft ofo thers & going through wardrobes.

26. On. 9 May 2018, Kathryn did not attend her day service as staff felt that it was not safe for her to travel in a taxi as she was unsettled (Running around the house, removing items from her room, going into other residents' rooms).

27. At a staff meeting on 9 May 2018, the subject of Kathlyn grabbing other residents'food and eating it, was discussed following which staff decided to trial a new seating plan. The arrangement meant that Kathl·yn did not sit directly next to other residents. This would be mean that if Kathlyn did reach over the entire width of the table to take food from other residents, it would take a little longer to reach so staff had a few more seconds to move food away.

8 'Dysphagia' is difficulty with swallowing.

28. The notes record, Kathryn to be trailed [sic] sitting in the opposite position than usual at the dining table (between [A] and [B]) this would give Kath,yn less opportunity to grab food fi'om the plates during meal time. Staff to sit at the table with the ladies during meal times.

CIRCUMSTANCES IN WHICH THE DEATH OCCURRED

29. On 10 May 2018, there were two disability workers rostered to care for the six residents. The House Supervisor of the James Street residence was attending a training session which commenced at 9.00am.

30. Both staff present were employed by the Depaitment as disability workers on a casual basis and worked at various care facilities.

31. Between 8.00am and 9.00am, five of the six residents of the care facility were in the dining room. The sixth resident was in the shower with one disability worker assisting her.

32. Four of the five residents in the dining room, including Kathryn, had already eaten their breakfast. Kathryn was able to feed herself. The fifth resident, refened to as Annie to protect her privacy, required assistance to be fed. She usually ate her medication at the same time as her food (chocolate custard mixed with the medication in between bites) which would take about five minutes. The disability worker assisting her said that Annie hunched over while she was eating which meant that she was also hunched over while giving her the medication. She said that Annie had soiled herself which she immediately attended to as she knew Annie would be uncomfo1table.

33. The disability worker then made a further piece of toast for Annie to eat and also on the dining table was a piece of pumpkin toast she had refused earlier.

34. According to the worker, while she was attending to Annie, Kathryn took the pumpkin toast off the dining table and put it in her mouth without her noticing. Kathryn was seated at the dining table beside the worker, but she was facing the other resident.

35. The worker said that, Kathryn loves food and this type of opportunistic behaviour is not out of character for her. The toast she took was close by to me, I have no idea how she managed to get hold of it. I had the toast close to me due to this behaviour.

36. The worker immediately called for assistance from her colleague, who was in the shower area which was some way from the dining/kitchen so was not immediately able to hear. She tried to force the toast out by putting her arms around Kathryn from behind. She continued to perf01m first aid whilst the other worker called Triple Zero. Cardiac Pulmonary Resuscitation (CPR) was performed under the guidance of the call taker operator after that time.

37. Approximately 3-4 balls ofc hewed food were removed whilst Kathryn was being assisted.

38. During this time, there was concern for the other residents, including [the resident] who was still naked in the shower.

39. The CFA arrived followed by two units of ambulance paramedics (units arrived at approximately 8.55am after the call was received at approximately 8.45am), when further rounds of CPR were conducted. On their arrival, Kathryn was rep01tedly in cardio-respirato1y anest. Paramedics continued CPR including endotr·acheal intubation and 3 bolus amounts of inh·avenous Adrenaline after which she returned circulation after a downtime of approximately 30 minutes.

40. At around 9.00am, the house supervisor was contacted following which she left to attend the James Street residence and advised her managers of the situation.

41. Kathryn was transpo1ted to the Dandenong Hospital and admitted to the Intensive Care Unit (ICU) via the Emergency Department. Despite continuing care, she was diagnosed with a severe hypoxic brain injury and clinical brain death was confirmed on 16 May 2018 at 11.25pm. Kathryn was an organ donor following consent being given by her family.

IDENTITY

42. On 16 May 2018, Peter O'Rourke visually identified his daughter, Kathryn O'Rourke, born on 18 March 1970.

43. Identity is not in dispute and required no further investigation.

CAUSE OF DEATH

44. Specialist forensic pathologist Dr Malcolm Dodd from the Victorian Institute of Forensic Medicine (VIFM) conducted an external examination on 18 May 2018 and provided a written repo1t of the same date.

45. Dr Dodd noted that the immediate cause of death is best regarded as Hypoxic/Ischaemic Encephalopathy (brain death) in a person who has aspirated food, culminating in respiratory arrest.

46. Dr Dodd noted that Kathryn suffered from baseline intellectual disability and required 24-hour care, and further that she suffered from bipolar disorder and also the extrapyramidal side effects from antipsychotic medication as well as Type 2 diabetes.

47. Toxicological analysis showed the antipsychotic medications clonazepam9 and olanzapine 10 in therapeutic quantities.

48. Dr Dodd noted no suspicious circumstances as part of his examination.

49. Dr Dodd provided an opinion that the medical cause of death was 1 (a) Hypoxic/lschaemic Encephalopathy, 1( b) Aspiration ofF ood with Respiratmy Arrest with Contributing Factors - Intellectual Disability.·

50. I accept Dr Dodd's opinion.

FURTHER INVESTIGATIONS

51. Ms N01thcott's statement addressed a number of key queries raised as part of the investigation including:

• The qualifications and role of each staff member involved with the incident;

• Whether the staff members had undergone training or education regatding appropriate care of residents who require assistance / supervision and modified consistency food and fluid.

• Whether there were an adequate number of staff present and available during mealtime on the morning of 10 May 2018 to manage Kath1yn's choking risks.

• Whether Kathryn's choking risks were appropriately managed on the morning of 10 May 2018 during mealtime.

• Had the staff members undergone training m basic life suppo1t/cardiopulmonmy resuscitation (CPR) / first aid.

9 Clonazepam is a nitrobenzodiazepine clinically used for treatment of seizures.

10 Olanzapine is indicated for the treatment of schizophrenia and related psychoses.

• Was a basic life support competency or CPR/ first aid ce1tificate a standard requirement for the staff members attending the incident.

• Whether there have been any changes to DHHS practice as a result of Kathryn's death.

52. It was noted that on 11 July 2019, DSC provided the Final Investigation Report to the Depmtment which highlighted concerns about the adequacy of the disability services provided to Kathryn and included a Notice to Take Action in respect of five matters. The response to those concerns were set out and provided to the Comt by the Depmtment.

Staff qualifications and training, staffing levels .

53. Both staff members present on 10 May 2018 were engaged as Disability Development and Support Officers and one held a Ce1tificate IV in Disability which is the nationally recognised qualification for disability suppo1t workers (although not required for employment in the sector). Neither of the staff had specific training or education relating to the care of residents who required assistance/supervision and modified consistency food and fluid, but they had undergone a 3-day Induction Program. As pmt of this program, the Comt was advised that staff m·e required to become familiar with their obligations as set out in the Depmtment's Residential Services Practice Manual. This manual provides staff with clear practice advice on how to manage specific health conditions, including swallowing and choking risk, safe meal-time management and best practice in the area. 11

54. Both staff members had undergone regular annual training in CPR/First Aid. This training is mandatory for all staff working in Disability Accommodation Services with the Depmtment and as per the National Guidelines, CPR is required to be renewed annually and First Aid every three years.

55. Ultimately, the staff were considered by the Depmtment to be adequately equipped, noting that resident need is continually assessed, and the level adjusted accordingly.

Whether Katluyn's choking risks were appropriately managed on the morning of 10 May 2018 during mealtime?

56. The staff present had worked with Kathlyn for a number of years and were aware of her S·wallowing and Meal Assistance Plan in place at that time.

11 https ://providers.d hbs. v ic. gov .au/residential-services-practices-manual.

57. On the morning of 10 May 2018, she was provided her meal in accordance with the plan that was in place and had finished her meal.

58. A WorkSafe report described that Kathryn was seated along the long side of the table, next to her was the staff member, and next to the staff member was another resident ( on her right side) to whom she was administering medication.

59. According to Ms Northcott's statement it was unable to be established whether the staff present were aware of the trial seating arrangement that had been put in place on 9 May 2018, but it was acknowledged that, when the choking incident occurred, there ·was only one staff member in the room, whose attention was not focused on Ms O 'Rourke. This was not in line with the trial proposed during the staffm eeting on the day prior.

60. In her statement to the Court, the House Supervisor said in relation to the trial seating arrangement that had been developed during the meeting on 9 May 2018, that if Kathryn, did reach over the entire width oft he table to take food from other residents ... it would take a little longer to reach so staff had a few more seconds to move food away. This decision had been noted in the staff meeting minutes however, the staff on duty that morning had not seen the minutes as they had not been typed up yet.

61. I note that having made the acknowledgement noted above, Ms N 01ihcott said, The department wishes it to be noted that during the interviews with staff, it was not felt that the incident was reflective of a careless attitude or approach on behalf of the staff or House Supervisor at the time. The staff involved had worked with Ms O 'Rourke for·a period off ive years and knew her well and were familiar with her behavior. Signfficant steps had been taken to try and address the choldng risks faced by Ms O 'Rourke. The outcome is tragic and traumatic for all involved.

62. I accept the acknowledgement made on behalf of the Department.

63. The evidence in this matter suggests that there was an escalation of Kathryn's behavioural issues identified by the staff, and a new eating trial was developed in response by the staff the day before the choking incident which led to Kathryn's death. The new trial was not communicated to staff and as such it was not adhered to on 10 May 2018.

Page JO

64. Had the trial been in place it would have reduced the risk of the tragic outcome, but I am not able to say that the risk of choking on that day would have been completely eliminated.

Changes to Department's practice as a result of Katluyn's death.

65. Ms Northcott outlined a number of changes which occuned after Katlu·yn's death.

66. These included that the Department unde11ook a review of all Health and Wellbeing records for every resident at the St James Street residence and an 'Improvement Action Plan' was implemented on 11 May 2018. Also following receipt of the DCS Notices to Take Action, the Depai1ment worked with Home@Scope to address the concerns raised and implemented a number of improvement actions, including ensuring that,

• staff are provided training about active supervision and their duty of care obligations in relation to the management of mealtime safety; and

• residents requiring one-on-one supp011 at mealtime are not left unattended, or under the supervision of staff assisting more than one resident.

67. Each staff member also attended training which focused on safe mealtime supp011s, which included reducing the risk of choking, noting that people with an intellectual disability are more likely to choke on food and drink than the general population. This covered critical issues such as the alertness of the resident before eating, following the meal plan, ensuring food is of the right texture, ensuring that food is consumed in small mouthfuls and residents sit upright when eating and the importance of monitoring throughout the eating process.

The importance of one to one support with the resident was also discussed and emphasised with the stafft eam to ensure that no resident is left unattended during meal times.

68. Reference was made to fm1her statewide improvements noting the NDIS transition and the NDIS Code of Conduct which includes a requirement to take all reasonable steps to prevent and respond to all instances of violence, exploitation, abuse and neglect of people with disability.

69. The Department also undertook and participated in a number of activities in conjunction with other agencies which concerned improving safer eating practices for persons with disability, such as the development of an e-lemning package for disability supp011 workers.

70. I note that there is a range of material and suppo11s in this area including the development of the DSC Safe Mealtimes Poster dated 15 September 2020 and the NDIS Quality and Safeguards Commission, Dysphagia, safe swallowing, and mealtime management Practice Ale11 dated November 2020.

71. Impmtantly the Safety Ale11 highlights a number of steps to provide safe and competent supports to people with dysphagia to reduce the risks of choking or aspiration pneumonia (noting that every person will have different suppmt needs for their dysphagia) including, ensure staff know dysphagia symptoms and risks; support pmticipants with possible swallowing difficulties to be assessed for dysphagia; support pmticipants with dysphagia to have a mealtime management plan; support people with dysphagia to eat and drink safely during mealtimes; ensure mealtime management plans are regularly reviewed and ensure medications are regularly reviewed.

FINDINGS AND CONCLUSION

72. Having investigated the death of Kathryn O'Rourke and having held an inquest in relation to her death on 21 June 2021, at Melbourne, I make the following findings, pursuant to section 67(1) of the Act:

(a) the identity of the Deceased is Kathryn O'Rourke, born on 18 March 1970;

(b) Kathryn died on 16 May 2018 at the Dandenong Hospital, 135 David Street, Dandenong, Victoria from 1 (a) Hypoxic/Ischaemic Encephalopathy, 1 (b) Aspiration of Food ·with Respiratory Arrest with Contributing Factors - Intellectual Disability; and ( c) her death occurred in the circumstances described above.

73. I convey my sincere condolences to Kathryn's parents for their loss and I acknowledge the tragic circumstances in which her death occurred.

74. Mrs O'Rourke expressed the following words at the inquest on behalf of the family, It has been a long and emotional three years. Kathryn's passing has helped make changes for clients in CRUs with better support at meal times. With us donating Kathryn's organs and tissues, the recipients now have a better life and Kathryn lives on through them.

We are very proud of our baby girl. Kathryn�'i life did matter.

75. Pursuant to section 73(1) of the Act, I order that this Finding be published on the internet.

76. I direct that a copy of this finding be provided to the following: Mr Peter & Mrs Claudia O'Rourke, senior next of kin Department of Health and Human Services Monash Medical Centre Leading Senior Constable Allie Goff, Victoria Police, Coroner's Investigator Signature: Date: 30 June 2021 NOTE: Under section 83 of the Coroners Act 2008 ('the Act'), a person with sufficient interest in an investigation may appeal to the Trial Division of the Supreme Court against the findings of a coroner in respect of a death after an investigation. An appeal must be made within 6 months after the day on which the determination is made, unless the Supreme Court grants leave to appeal out of time under section 86 of the Act.