Dec 13, 2022

Aged care managers forced to give evidence into facility’s COVID deaths

Senior managers at a Melbourne nursing home, where nearly 50 residents died from COVID-19 and suspected neglect during the height of the pandemic in 2020, have lost their appeal to avoid producing evidence for a coronial inquest.

Yesterday, the Court of Appeal ordered the former Chairman of St Basil’s Home For The Aged in Victoria, Kon Kontis, and Facility Manager, Vicky Kos, to give evidence to State Coroner John Cain despite initially refusing to provide evidence.

The inquest continues to look into the deaths that were reported at the Fawkner facility during a COVID-19 outbreak in July 2020 which saw 45 residents die from COVID-19-related issues. Another five other residents, who did not catch the virus, died of suspected neglect at the same time.

Mr Kontis and Ms Kos have made several attempts to avoid giving evidence since the inception of the inquest in November 2021, formed after workplace health and safety watchdog, Worksafe Victoria, announced it was conducting a separate criminal investigation into the deaths.

John Karantzis from Carbone Lawyers, who is representing the families of the residents who died, told ABC News the decision was a “fantastic result”.

“The families will be over the moon,” he said.

In 2021, the coronial inquest heard testimonies from 55 witnesses who said the facility’s quality of care significantly declined during the 2020 outbreak and that residents were left malnourished and dehydrated.

State Coronor Cain originally ordered Mr Kontis and Ms Kos to give evidence at the start of the inquest, but the pair objected to appearing just days beforehand, arguing that making an appearance would be self-incriminating and interfere with the WorkSafe investigation.

Despite this objection, the senior managers were ordered to give evidence so they escalated an appeal to the decision to the Supreme Court of Victoria, which was dismissed in August 2022.

Mr Kontis and Ms Kos launched another legal challenge in the Court of Appeal following the dismissed case in the Supreme Court of Victoria, claiming that Mr Cain had misinterpreted the law.

Justices Terry Forrest, Kristen Walker and Stephen McLeish yesterday rejected those arguments to the Court of Appeal and ordered Mr Kontis and Ms Kos to pay the legal costs of the Victorian Attorney-General for his involvement.

They said “the appeal must be dismissed”, but the senior managers are still able to appeal yesterday’s decision by escalating the case to the High Court of Australia.

Worksafe investigation adjourned

Outside of the Supreme Court, the Worksafe Victoria criminal investigation was also adjourned yesterday in the Melbourne Magistrates’ Court to March 2023.

The Fawkner facility was charged by WorkSafe Victoria in July this year with nine breaches of the Occupational Health and Safety Act for its poor reaction to the COVID-19 outbreak. 

WorkSafe Victoria alleged that the facility did not notify workers that they had tested positive for COVID-19 during the 2020 outbreak and failed to enforce Personal Protective Equipment (PPE) rules to staff working at the time to stop the virus from spreading.

As a corporate body, St Basil’s Home For The Aged in Victoria could be forced to pay just under $1.49 million in fines if found guilty of the breaches. 

St Basil’s Home For The Aged in Victoria was contacted by HelloCare for a response but has received no reply at the time of publishing.

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