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Administrative Appeals Tribunal of Australia |
Last Updated: 26 June 2002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/389-390
GENERAL ADMINISTRATIVE DIVISION )
Re UNITING CHURCH HOMES - BETHAVON HOSTEL
Applicant
And SECRETARY, DEPARTMENT OF HEALTH AND AGEING
Respondent
Tribunal Associate Professor S D Hotop, Deputy President Mr R D Fayle, Senior Member Dr P A Staer, Member
Date 19 June 2002
Place Perth
Decision The Tribunal: pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), affirms the reviewable decision in respect of care recipient 298936. pursuant to s 42C(2) of the AAT Act, sets aside the reviewable decision in respect of care recipient 411901 and, in substitution therefor, decides that the appropriate classification level, in accordance with Schedule 2 to the Classification Principles, is level 3. ...........(sgd S D Hotop)........... Deputy President
CATCHWORDS
HEALTH AND COMMUNITY SERVICES - Aged Care - classification of aged care recipient - applicant (an approved provider) reappraised level of care needed by care recipient - respondent renewed classification of care recipient - respondent subsequently changed classification of care recipient - applicant requested reconsideration of decision - respondent made decision on reconsideration - applicant applied to Tribunal for review - whether respondent's decision to change classification of care recipient correct - whether respondent's decision to renew classification of care recipient based on inaccurate or incorrect reappraisal by applicant or otherwise made incorrectly - material to which Tribunal may, and may not, have regard in reviewing reviewable decision - whether reviewable decision correct on material to which Tribunal may have regard
Aged Care Act 1997 ss2-1, 25-1, 26-1, 27-1, 28-1, 28-2, 28-3, 29-1, 41-3, 85-1, 85-5, 85-8, Schedule 1
Aged Care Principles - Classification Principles 1997 Parts 4, 5, 9, Schedule 1 Part 1, Schedule 1 Part 2, Schedule 2
Comptroller-General of Customs v Members of Administrative Appeals Tribunal (1994) 123 ALR 140
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
19 June 2002 Associate Professor S D Hotop, Deputy President Mr R D Fayle, Senior Member Dr P A Staer, Member
Introduction
1. Uniting Church Homes - Bethavon Hostel ("the applicant") has applied to the Tribunal, pursuant to s 85-8 of the Aged Care Act 1997 ("the Act"), for a review of two "reviewable decisions" within the meaning of the Act (see s 85-1). Each of those "reviewable decisions" was a decision, made under s 29-1(1) of the Act, to "change the classification of a care recipient" (see s 85-1, item 31) and each "reviewable decision" was subsequently reconsidered by a delegate of the Secretary to the Department of Health and Ageing ("the respondent") under s 85-5 of the Act. One "reviewable decision" (namely, a decision dated 1 July 1999 relating to care recipient 298936) was confirmed on 15 October 1999, and the other "reviewable decision" (namely, a decision dated 1 July 1999 relating to care recipient 411901) was set aside, and a new decision substituted therefor, on 15 October 1999, on reconsideration under s 85-5 of the Act.
2. At the hearing the applicant was represented by Dr J T Schoombee of counsel, and the respondent was represented by Mr M T Ritter of counsel. The Tribunal had before it the statement and documents ("T documents", numbered T1-T20) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the following documentary exhibits tendered in evidence by the applicant (numbered A1-A5) and by the respondent (numbered R1-R9):
* Outline of Evidence of Diane Fergusson-Stewart dated 20 April 2001 (A1)
* Outline of Evidence of Alex Murphy dated 20 April 2001 (A2)
* File comprising the applicant's records relating to care recipient 298936 (A3)
* File comprising documents (numbered B1-B23) to be referred to in the evidence of Alex Murphy (A4)
* "RCS Query Sheet" faxed by Alex Murphy to the (former) Department of Health and Family Services on 22 February 1999 and "RCS Query Answer Sheet" faxed by the (former) Department of Health and Aged Care to Alex Murphy on 5 March 1999 (A5)
* Chapter 5 ("Classification Appraisal") of the Documentation and Accountability Manual issued by the Department of Health and Family Services in November 1997 (comprising 48 pages) (R1)
* Chapter 5 ("Classification Appraisal") of the Documentation and Accountability Manual and The Residential Care Manual issued by the Department of Health and Family Services on 1 October 1998 (comprising 56 pages) (R2)
* Statement of Bruce Malcolm Wight dated 1 May 2001 (including Annexures A-D and F-K) (R3)
* Statement of Jennifer Susan Hefford dated 30 April 2001 (R4)
* Statement of Raino Perring dated 22 June 2001 (including Annexure A) (R5)
* Bundle of documents comprising copies of Determinations made under the Act by the Minister for Family Services (dated 29 June 1998) and by the Minister for Aged Care (dated 17 June 1999) (R6)
* Statement of Barbara May dated 30 April 2001 (including Annexures A-C) (R7)
* Extract (comprising cover page and page 107) from The Resident Classification Scale Training Workbook published by the Department of Health and Family Services in 1998 (R8)
* Statement of Linda Mack dated 30 April 2001 (including Annexures A-E) (R9).
Oral evidence was given by Diane Fergusson-Stewart and Alexander Murphy (who were called as witnesses by the applicant) and by Bruce Wight, Barbara May and Linda Mack (who were called as witnesses by the respondent).
The Legislative Framework
3. Before referring to the factual background and the evidence in this matter, it is convenient to outline the relevant legislative framework. That legislative framework is primarily comprised of Part 2.4 of the Act, together with the Classification Principles 1997 ("the Classification Principles") made by the Minister under s 96-1 of the Act. Part 2.4 (comprising Divisions 24-29) of the Act is headed: "Classification of care recipients", and the Classification Principles provide for matters that are "necessary or convenient to be provided in order to carry out or give effect to" Part 2.4: see s 96-1(1)(b) of the Act. The Classification Principles are "disallowable instruments" for the purposes of s 46A of the Acts Interpretation Act 1901: see s 96-1(2) of the Act.
The Act
4. Before outlining the relevant provisions of Part 2.4 of the Act reference should be made to the objects of the Act. Section 2-1 of the Act provides:
"(1) The objects of this Act are as follows:
(a) to provide for funding of aged care that takes account of:
(i) the quality of the care; and
(ii) the type of care and level of care provided; and
(iii) the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and
(iv) appropriate outcomes for recipients of the care; and
(v) accountability of the providers of the care for the funding and for the outcomes for recipients;
(b) to promote a high quality of care and accommodation for the recipients of aged care services that meets the needs of individuals;
(c) to protect the health and well-being of the recipients of aged care services;
(d) to ensure that aged care services are targeted towards the people with the greatest needs for those services;
(e) to facilitate access to aged care services by those who need them, regardless of race, culture, language, gender, economic circumstance or geographic location;
(f) to provide respite for families, and others, who care for older people;
(g) to encourage diverse, flexible and responsive aged care services that:
(i) are appropriate to meet the needs of the recipients of those services and the carers of those recipients; and
(ii) facilitate the independence of, and choice available to, those recipients and carers;
(h) to help those recipients to enjoy the same rights as all other people in Australia;
(i) to plan effectively for the delivery of aged care services that:
(i) promote the targeting of services to areas of the greatest need and people with the greatest need; and
(ii) avoid duplication of those services; and
(iii) improve the integration of the planning and delivery of aged care services with the planning and delivery of related health and community services;
(j) to promote ageing in place through the linking of care and support services to the places where older people prefer to live.
(2) In construing the objects, due regard must be had to:
(a) the limited resources available to support services and programs under this Act; and
(b) the need to consider equity and merit in accessing those resources."
The phrase "aged care" is relevantly defined in Schedule 1 to the Act to mean:
"care of one or more of the following types:
(a) residential care;
(b) ...
(c) ...".
The word "care" is also defined in Schedule 1 to mean:
"services, or accommodation and services, provided to a person whose physical, mental or social functioning is affected to such a degree that the person cannot maintain himself or herself independently."
The meaning of the phrase "residential care" is given by s 41-3 of the Act as follows:
(1) Residential care is personal care or nursing care, or both personal care and nursing care, that:
(a) is provided to a person in a residential facility in which the person is also provided with accommodation that includes:
(i) appropriate staffing to meet the nursing and personal care needs of the person; and
(ii) meals and cleaning services; and
(iii) furnishings, furniture and equipment for the provision of that care and accommodation; and
(b) meets any other requirements specified in the Residential Care Subsidy Principles.
(2) However, residential care does not include any of the following:
(a) care provided to a person in the person's private home;
(b) care provided in a hospital or in a psychiatric facility;
(c) care provided in a facility that primarily provides care to people who are not frail and aged."
5. The Act provides for, inter alia, the payment of subsidies to "approved providers" for the provision of residential care. A person must be approved as a "care recipient" under Part 2.3 of the Act to receive residential care before an approved provider can be paid "residential care subsidy" pursuant to Part 3.1 of the Act for providing that care: see s 19-1 of the Act. Care recipients approved under Part 2.3 for residential care are classified, pursuant to Part 2.4, according to the level of care they need and such classification affects the amount of residential care subsidy payable to an approved provider for providing that care.
6. Division 25 (ss 25-1-25-5) in Part 2.4 of the Act prescribes the manner in which care recipients are classified. First, an appraisal of the level of care needed by a care recipient, relative to the needs of other care recipients, must be made by the approved provider that is providing care to the care recipient: s 25-3(1). The appraisal must be in a form approved by the Secretary to the Department of Health and Ageing ("the Secretary"), and must be made in accordance with the procedures specified in the Classification Principles: s 25-3(3). Secondly, upon receipt of an appraisal made under s 25-3 in respect of a care recipient who is approved under Part 2.3 for residential care, the Secretary must classify that care recipient according to the level of care the recipient needs, relative to the needs of other care recipients: s 25-1(1). In classifying the care recipient, the Secretary must take into account:
* the appraisal made in respect of the care recipient under s 25-3; and
* any other matters specified in the Classification Principles: s 25-1(3).
Such classification must specify the appropriate classification level (as set out in the Classification Principles) for the care recipient: s 25-1(2). Division 26 of the Act sets out the date of effect of a classification.
7. Division 28 (ss 28-1-28-5) in Part 2.4 of the Act prescribes the manner in which classifications are renewed. An approved provider may reappraise the level of care needed by a care recipient. In that event the reappraisal must:
* be in a form approved by the Secretary (s 28-2(3));
* be made in accordance with the Classification Principles applying to an appraisal under Division 25 (s 28-2(1)); and
* generally be made during the reappraisal period for the classification set out in s 28-3 (s 28-2(4)).
The reappraisal period set out in s 28-3 is generally the period beginning one month before the expiry date of the relevant classification (that is, the day that occurs 12 months after the classification took effect: s 27-1(2)(a)) and ending one month after that expiry date. If, however, the care needs of a care recipient have "changed significantly" during the period during which the classification has effect, the reappraisal may be made at any time during that period: s 28-2(5). The circumstances in which care needs are taken to have "changed significantly", for the purposes of s 28-2(5), are, pursuant to s 28-2(6), specified in the Classification Principles: see s 9.33 of the Classification Principles. If notified of a reappraisal made under s 28-2 by an approved provider the Secretary may renew the classification: s 28-1(1). In renewing the classification, the Secretary must take into account:
* the reappraisal made under s 28-2; and
* any other matters specified in the Classification Principles: s 28-1(3).
A renewal of a classification must specify the appropriate classification level (as set out in the Classification Principles) for the care recipient: s 28-1(2). Section 28-4 sets out the date of effect of a renewal of a classification.
8. Division 29 (ss 29-1-29-2) in Part 2.4 of the Act prescribes the manner in which classifications are changed. Section 29-1 provides:
" (1) The Secretary must change a classification if the Secretary is satisfied that:
(a) the classification was based on an incorrect or inaccurate appraisal under section 25-3 or reappraisal under s 28-2; or
(b) the classification was, for any other reason, made incorrectly.
Note: Changes of classifications are reviewable under Part 6.1.
(2) A classification cannot be changed in any other circumstances, except when classifications are renewed under Division 28.
(3) Before changing a classification under subsection (1), the Secretary must review it by examining:
(a) the material on which the classification was based; and
(b) any other material or information of a kind specified in the Classification Principles;
and considering whether the material supports the classification.
(4) If the Secretary changes the classification under subsection (1), the Secretary must give written notice of the change to the approved provider that is providing care to the care recipient."
9. Part 6.1 of the Act provides for the reconsideration and review of "reviewable decisions" made under the Act. According to the "Dictionary" in Schedule 1 to the Act, "reviewable decision has the meaning given in section 85-1". Section 85-1 sets out in tabular form an exhaustive list of the decisions made under the Act which are "reviewable decisions" for the purposes of Part 6.1. Included in the list of "reviewable decisions" is (relevantly) a decision "to change the classification of a care recipient" made under s 29-1(1) of the Act (see item 31 in the table in s 85-1). Sections 85-4 and 85-5 of the Act deal with reconsideration of reviewable decisions. Section 85-5 relevantly provides:
"(1) A person whose interests are affected by a reviewable decision may request the Secretary to reconsider the decision.
(2) ...
(3) The person's request must be made by written notice given to the Secretary:
(a) within 28 days, or such longer period as the Secretary allows, after the day on which the person first received notice of the decision; or
(b) ...
(4) The notice must set out the reasons for making the request.
(5) After receiving the request, the Secretary must reconsider the decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
...".
Finally, s 85-8 provides:
"An application may be made to the Administrative Appeals Tribunal for the review of a reviewable decision that has been confirmed, varied or set aside under section 85-4 or 85-5."
The Classification Principles
10. The relevant provisions of the Classification Principles are as follows:
"Part 4 Appraisal procedures
9.16 Purpose of Part (Act, s 25-3)
This Part specifies procedures for making an appraisal of the level of care needed by a care recipient (other than a care recipient who is being provided with care as respite care), relative to the needs of other care recipients.
9.17 Appraisal procedures
(1) The steps in Table 3 must be taken, by the person appraising a care recipient (the appraiser) and by the Secretary, to work out an aggregate figure, and a classification level, for the care recipient.
(2) The appraiser must take the steps in Table 3 for a care recipient from the first day when the care recipient enters the residential care service.
(3) However, for Questions 9 to 16 in Part 1 of Schedule 1, the appraiser should not include care needs of the care recipient for the period of 7 days starting on the first day when the care recipient enters the residential care service.
(4) Subsection (3) does not apply if section 9.23 applies to allow an appraisal to be made over a shorter period.
Step 1 For each question in Part 1 of Schedule 1, the appraiser must consider the extent to which the care recipient needs care, assistance or support.
Step 2 For each question, the appraiser must note, on the appraisal form, the level of care, assistance or support mentioned in the Part (ie A, B, C or D) is needed by the care recipient. (sic) The appraiser must use the comments for each question to decide the most appropriate choice.
Step 3 For the response to each question, the Secretary must identify the score for the response. The scores are mentioned in Part 2 of Schedule 1.
Step 4 The Secretary must add up the scores to work out an aggregate figure for the care recipient.
Step 5 The Secretary must use Schedule 2 to identify the aggregate figure range for the aggregate figure worked out under Step 4.
Step 6 The Secretary must use Schedule 2 to identify the classification level for the aggregate figure range identified under Step 5. The classification level identified by the Secretary is the classification level for the care recipient.
Part 5 How care recipients are classified
Division 1 Classification levels for non-respite care
9.18 Purpose of Division (Act, s 25-2)
This Division sets out classification levels for care recipients being provided with residential care or flexible care, other than care recipients who are being provided with residential care as respite care.
9.19 Classification levels - care that is not provided as respite care
(1) The classification levels are mentioned in column 3 of Schedule 2.
...
Part 9 How classifications are renewed
Division 1 Basis for reappraisal
9.30 Purpose of Division (Act, s 28-1)
This Division provides for reappraisal of a care recipient under Division 28 of the Act.
9.31 Records to be used in reappraisal
A reappraisal may be made using existing records about the care recipient's needs for care, assistance and support for the matters mentioned in Part 1 of Schedule 1.
...
Schedule 1 Appraisal procedures
(section 9.17)
Part 1 Matters to consider in appraising a care recipient
Guidelines for the interpretation of resident classification scale questions
The resident classification scale is a relative resource allocation instrument
The resident classification scale consists of 20 questions, each having 4 ratings. The allocation of the 20 ratings, based on the assessed care needs of each care recipient, results in a score which places them on a nationally consistent scale, relative to all other people living in residential aged care facilities throughout Australia.
The elements in the resident classification scale have been selected as those elements of care that best discriminate between relative care needs. Therefore, the resident classification scale provides a ranking, ranging from people with the highest care needs to those with the lowest care needs.
Using the Questions
Although the description for recording A for most questions is summarised as 'No assistance' or 'Not applicable', this does not, in general, mean that no care is given. It may mean that 'minimal care' is given. The weightings have been zero rated for statistical reasons since the scale is designed to measure relative care need.
The requirements of the B, C and D ratings are minimums for attaining that level. Where a care recipient's care needs are above the minimum for that rating, that will remain the applicable rating if they do not meet the criteria of the higher rating.
Where questions list examples, they are listed as an indicative guide and are not exhaustive.
The scale has been developed, and the weights calculated, to reflect supervision, observation, support, prompting and encouragement in the provision of care as well as physical resistance. It incorporates the need for continuing assessment and the monitoring and review of care plans.
The resident classification scale is completed against a clearly defined and documented plan of care which has been based upon an assessment of the care needs of the care recipient. The care needs will have been documented and the care plan will state what services are to be provided to meet these care needs.
Volunteers/purchased services
The resident classification scale takes into account care provided by volunteers or purchased at market rates by the facility for provision to care recipients. If the care recipient meets the cost of any service then the facility cannot claim for that service. Similarly, where services are provided by a government-funded service (either State or Federal) at a subsidised rate, or for free, they cannot be claimed for through the resident classification scale.
...
Q7 Bowel management
This question relates to continence of faeces and maintenance of continence of faeces and the reduction of incontinence.
Stoma care (including colostomy care) is covered in Question 18. Routine emptying of colostomy drainage bags, personal hygiene and adjustment of clothing are covered in Question 5.
If the care recipient maintains continence of faeces independently and needs no program to remain continent, record A.
If the care recipient is able to remain continent of faeces, or to have incontinence reduced only because of the care provided by the staff, record B, C or D.
If appropriate appliances such as pads are the only procedure used, record B.
If the care recipient is on a bowel management program for the prevention of constipation, record C. A bowel management program includes monitoring and recording bowel activity, and may include any of the following:
* maintaining adequate fluid intake;
* laxatives and aperients;
* stool softeners or fibre supplements;
* high fibre diet;
* suppositories or enemas;
* exercise or massage.
If the care recipient would usually be incontinent but has an individualised continence program in place to optimise his/her continence level, record D. For this care recipient, a bowel management program may also be in place.
A continence program is based on an individualised assessment of the continence state, with planning, implementation and evaluation guidelines. A program means more interventions than pads only, or prompting only - for example, individualised habit training or scheduled toileting, and be drawn from information in the care recipient's continence assessment. (sic)
In this question:
prompting means reminding care recipient to go to the toilet.
habit training means using a flexible toileting schedule based on a care recipient's pattern of incontinence. Reinforcement techniques may be used.
scheduled toileting means toileting to a fixed schedule while care recipient is awake.
Ratings Q7 Bowel management
Not applicable A Continent of faeces.
Some support B Wears continence aids at all times related to frequent incontinence that cannot be improved by a continence program.
Major support C Constipation is prevented or continence level maintained by a bowel management program.
Extensive support D Would usually be incontinent but has an individualised continence management program in place to optimise continence level.
...
Q19 Therapy
This question relates to therapy provided to care recipients where the facility provides the therapy, or the facility pays for the therapy, and the therapy is documented as a care need. The therapist should meet the requirements for full membership of the therapist's national or state body OR be a registered nurse for physical therapy. The therapies include:
* physiotherapy;
* physical therapy developed by registered nurses, for example:
passive movements for unconscious or severely disabled care recipients;
techniques such as pelvic floor exercises to promote continence;
* occupational therapy;
* diversional therapy;
* speech therapy.
Music therapy and aromatherapy are not claimed for in this question, but are covered in Question 20.
The therapist's role is to individually assess the care recipient's need for the therapy and to develop a personalised therapy plan.
The program does not need to be implemented by the therapist, but may be implemented by a staff member at the direction of the therapist. However, it is the role of the therapist to regularly evaluate, by assessment, the effectiveness of the therapy program.
If the care recipient requires no therapy, record A.
If a therapy program is provided 1 or 2 times a week, record B. This might be to maintain the care recipient's existing level of function.
If a therapy program is provided 3 or more times a week, but not daily, record C. This might be to improve, or to minimise, loss of the care recipient's existing level of function, correct a deficit, or, in the case of physiotherapy, maintain or minimise loss of joint range of movement or prevent contractures.
If a therapy program is provided in either daily blocks, or 3 or more times a week in large blocks of time (at least 30 minutes duration), record D.
Therapy provided by different categories of therapists are added together to determine the frequency of the provision of therapy.
Ratings Q19 Therapy
No support A No therapy required.
Some support B Therapy provided 1 or 2 times a week.
Major support C Therapy provided 3 times a week.
Extensive support D Therapy program provided either daily or at
least 3 times a week in large blocks of time.
...
Column 1 Column 2 Column 3 Column 4
Question Question description Level of support Score
Q1 Communication A 0.00
B 0.28
C 0.36
D 0.83
Q2 Mobility A 0.00
B 1.19
C 1.54
D 1.82
Q3 Meals and drinks A 0.00
B 0.67
C 0.75
D 2.65
Q4 Personal hygiene A 0.00
B 5.34
C 14.17
D 14.61
Q5 Toileting A 0.00
B 5.98
C 10.65
D 13.70
Q6 Bladder management A 0.00
B 2.22
C 3.82
D 4.19
Q7 Bowel management A 0.00
B 3.32
C 5.72
D 6.30
Q8 Understanding and A 0.00
undertaking living B 0.79
activities C 1.11
D 3.40
Q9 Problem wandering or A 0.00
intrusive behaviour B 0.80
C 1.58
D 4.00
Q10 Verbally disruptive A 0.00
or noisy B 1.19
C 1.75
D 4.60
Part 2 Scores to be applied to the appraisal
Q11 Physically aggressive A 0.00
B 2.34
C 2.69
D 3.05
Q12 Emotional dependence A 0.00
B 0.28
C 1.50
D 3.84
Q13 Danger to self or others A 0.00
B 1.11
C 1.54 D 1.98
Q14 Other behaviour A 0.00 B 0.91 C 1.82 D 2.61
Q15 Social and human A 0.00 needs - care B 0.95
recipient C 1.98 D 3.01
Q16 Social and human A 0.00
needs - families B 0.28
and friends C 0.55
D 0.91
Q17 Medication A 0.00 B 0.79 C 8.55 D 11.40
Q18 Technical and A 0.00
complex nursing B 0.79
procedures C 5.54
D 11.16
Q19 Therapy A 0.00
B 3.64
C 6.10
D 7.01
Q20 Other services A 0.00
B 0.71
C 1.46
D 2.93
Schedule 2
Classification levels
(section 9.17)
Column 1 Item
Column 2
Aggregate figure range
Column 3 Classification level
1 2 3 4 5 6 7 8
0 - 10.60
10.61 - 28.90 28.91 - 39.80 39.81 - 50.00 50.01 - 56.00 56.01 - 69.60 69.61 - 81.00 81.01+
Classification level 8 Classification level 7
Classification level 6 Classification level 5
Classification level 4 Classification level 3
Classification level 2 Classification level 1
Note: Column 3 of the Schedule indicates the range of classification levels that apply to a care recipient according to the aggregate figure for the care recipient in an item in Column 2. The classification levels are indicated on a numerical scale from the lowest level (classification level 8) to the highest (classification level 1).
...".
Deparmental Policy
11. Chapter 5 of the Documentation and Accountability Manual and The Residential Care Manual, as issued by the (former) Department of Health and Family Services (a predecessor of the Department of Health and Ageing) on 1 October 1998, contains policy guidelines as applied by the Department in the administration of Part 2.4 of the Act and the Classification Principles. Chapter 5 of the abovementioned Manuals contains the following relevant material:
"
5.1 INTRODUCTION
Funding for the care of residents is varied based on their relative care needs. Through the Resident Classification Scale, all residents are categorised into a care category. The category determines a level of subsidy. The appraisal used for the Resident Classification Scale does not consider all of a resident's care needs. It considers those factors that have been identified as contributing the most to differences in the cost of care.
5.2 LEGISLATION
Funding for the care of recipients is varied based on their relative care needs. Through the Resident Classification Scale all residents are categorised into a care category and accordingly a level of subsidy. The appraisal used for the Residential (sic) Classification Scale does not consider all of a recipients' (sic) care needs but those that have been identified as contributing the most to the total cost of care.
Aged Care Act 1997, Part 2.4 Classification of Residents, the Classification Principles 1997 and the Classification Amendment Principles 1998 (No.1).
5.3 POLICY
Different residents need different levels of care. Commonwealth subsidies are provided to services based on eight categories of relative care needs of residents.
The level of Commonwealth subsidy for each resident is determined by the Resident Classification Scale (the Scale), and the resident's financial status. The Scale is completed by the approved provider or someone acting on the approved provider's behalf. It contains questions about a resident's clinical needs, ability to do various daily tasks, personal care needs, communication or sensory assistance, and the need for social or emotional support.
5.4 THE STEPS TO CLASSIFICATION
Where a new resident enters a facility, there are 4 steps which you must complete before the Department can classify a resident for funding purposes. These steps are:
* assess the resident's abilities and problems in writing;
* determine the strategies to deal with the resident's needs and to facilitate the maintenance of their abilities. The strategies or interventions should be clearly written into the resident's care plan;
* after the care plan has been updated, complete the Application for Classification form. Section 1 of the form requires the care needs from the care plan to be rated against the classification scale. Section 2 and 3 record the details of the resident and facility; and
* forward the Application for Classification form to the Department.
For a resident whose classification requires re-appraisal, there are also 4 steps you must complete before the Department can classify a resident.
* assess whether the resident's care plan covers all aspects of their care needs and evaluate whether the strategies on their care plan require revision. The evaluations should be recorded in the resident's progress notes, assessment forms or the care plan;
* the updated assessments and strategies or interventions should be clearly written into the resident's care plan;
Note: Where facilities regularly evaluate and update residents' care plans, as outlined in the Documentation and Accountability Manual, then these steps should already be completed when it is time to re-appraise a resident's classification.
* after the care plan has been updated, complete the Application for Classification form. Section 1 of the form requires the care needs from the care plan to be rated against the classification scale. Section2 and 3 record the details of the resident and facility; and
* forward the Application for Classification form to the Department.
The scores recorded by the facility in Section 1 of the Application for Classification must be drawn from written evidence about the care needs of the resident and the interventions in place to meet those needs, ie. from the assessment and care planning documentation for the resident.
...
5.5 DOCUMENTATION AND ACCOUNTABILITY
The Department has provided copies of the Documentation and Accountability Manual to all residential aged care facilities. The manual provides guidance on professional care practice and documentation.
The processes involved in the assessment of residents is detailed in the Documentation and Accountability Manual at Sections 2.2 and 3.2. The Care Planning process is described in Sections 2.3 and 3.3.
The processes of assessment, care planning and implementation and evaluation provide the basis for care delivery and also provide written evidence on which a facility bases its applications for resident classification.
5.6 ACCOUNTABILITY FOR FUNDING CLAIMS
Applications for classification must be based on written evidence about the care needs and care interventions provided for the resident. ...
...
5.9 REVIEWS OF RESIDENT APPRAISALS
5.9.1 Objectives of Reviews
The Department can review the accuracy of resident appraisals. All reviews look at the facility's appraisal against the Resident Classification Scale using the Resident Classification Scale guidelines which were in force at the time of original appraisal.
When the appraisal conducted by the facility is not accurate, the resident's classification will be corrected. A review classification applies for the same period as the classification that was being reviewed, with the exception that a review will not be backdated more than six months. Adjustments will be made to subsidy to reflect changed funding categories.
5.9.2 Authority for Reviews of Resident Classifications
The Department may review the appraisal of a resident at any time. Division 29 of the Aged Care Act 1997 provides the authority for the Secretary to change a classification where it is inaccurate.
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5.9.5 The Review Process
During a review, the Review Officer(s) checks the accuracy of a resident appraisal by reviewing the documentation on which the facility based its application for classification. This will focus on the assessment of relevant resident needs and the interventions in place to meet those needs. This may include:
* looking at the resident's care plan, ongoing case notes and other documents about the resident's care before and during the assessment period; and
* other sources of information such as an assessment by an Aged Care Assessment Team.
The Review Officer may also:
* observe the resident and interview him/her about his/her care needs; and
* consult with the supervisor and other care staff who know the resident's care needs to clarify details which appear in the resident's care plan.
5.9.6 Review Outcomes
Where the Review Officer agrees with the facility's appraisal of the resident, the Review Officer will record that the resident's appraisal has been reviewed and confirmed.
Where the Review Officer does not agree with the facility's appraisal of the resident, the Review Officer will:
* complete a new Resident Classification Scale for the resident in consultation with the approved provider or his authorised agent for the purposes of completing Scale assessments;
* explain why the facility's appraisal has not been confirmed;
* sign and date the Declaration at the bottom of the assessment form. The approved provider of agent is not required to countersign this Declaration; and
* explain to the approved provider or agent the right to appeal against a review decision within 28 days of the written notification of that decision.
The Review Officer may provide advice on how to improve documentation practices or help the staff better understand the interpretations of the Scale questions.
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5.10 APPEALS
If an organisation is dissatisfied with a review, it may appeal for reconsideration of that review decision.
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5.10.3 Assessment of Appeals
The Appeal Officer, who assesses the appeal, will not have been involved in the review decision that is being appealed. The appeal appraisal is made using the guidelines in force at the time of the original appraisal by the facility.
In most cases, an appeal will require a visit to the facility.
5.10.4 Appeal Responsibilities
The Appeal Officer will:
* compare the original and review appraisals;
* examine the documentary evidence for the facility's classification application (including care plans, ongoing personal care notes) and the worksheet compiled by the Review Officer during the original review of the appraisal;
* interview the resident whose appraisal was under review, if necessary; and
* speak with facility staff if necessary, regarding the resident's condition at the time of the original appraisal.
The Appeal Officer may:
* interview the parties involved in the appeal to find out why:
* the Review Officer's review of the appraisal differed from the facility's original appraisal of those needs; and
* the facility lodged the appeal.
The Appeal Officer will write a report on his/her findings and make a recommendation about the appeal. The report of the appeal visit includes the following information:
* the resident's name and name of the facility;
* the date of the appeal visit;
* the original, review and appeal classifications;
* details of responses to all Scale questions where there is a difference between the original application and review decision;
* an analysis of the resident's needs and care interventions against each of the Scale questions where a difference occurred, an overall assessment based on this analysis; (sic)
* any other material which the Appeal Officer considers relevant to the appeal; and
* a recommendation as to whether the appeal should be allowed or disallowed.
5.10.5 Documentation
Where the Appeal process reveals poor care documentation, the appeal officer may:
* advise the facility staff of the requirement to keep residents' records to meet their duty of care obligations and conform with professional and best practice; and
* refer the senior care staff to another facility in the area with a good standard of documentation.
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5.10.7 Decision by Delegate
The delegate considers the material and usually makes a decision within 10 working days of receiving the report of the Appeal Officer.
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5.11 ADMINISTRATIVE APPEALS TRIBUNAL
If an approved provider is not happy with a decision of the appeal decision maker, he/she may make an application within 28 days to the Administrative Appeals Tribunal (AAT) for review of the decision.
Note that an approved provider may not appeal directly to the AAT, he/she must firstly have sought an internal review of the decision.
...".
The Factual Background
12. The relevant factual background to the present applications for review, as appears from the T documents, is as follows.
13. A Departmental form entitled "Application for Classification" in respect of care recipient 298936 was completed by Maxine Smith, Assistant Manager, Bethavon Hostel, for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating "score" was entered in each of the 21 boxes there set out. Relevantly, a rating "score" of "B" was entered in the boxes numbered 7 and 19. The form was signed by Ms Smith and dated "23/2/99", and was lodged with the (former) Department of Health and Aged Care ("the Department") on 12 March 1999. (T14; T2, p13)
14. A similar form in respect of care recipient 411901 was also completed by Maxine Smith for the purpose of an annual reappraisal of the level of care needed by that care recipient. In section 1 of that form a rating "score" was likewise entered in each of the 21 boxes, including, relevantly, a "score" of "B" in the box numbered 7. The form was signed by Ms Smith and dated "18/3/99", and was lodged with the Department on 23 March 1999. (T15; T2, p13)
15. On 1 July 1999 Barbara May and Lynn Jones, Departmental Review Officers, visited Bethavon Hostel for the purpose of reviewing the existing classifications regarding various care recipients, including care recipients 298936 and 411901. The review of the classification of care recipient 298936 was conducted by Ms May, and the review of the classification of care recipient 411901 was conducted by Ms Jones.
16. In the case of care recipient 298936, Ms May decided on 1 July 1999 to change some of the rating "scores" entered by Ms Smith in the 21 boxes set out in section 1 of the "Application for Classification" form referred to in paragraph 13 above. Relevantly, Ms May changed Ms Smith's rating "score" of "B" in each of the boxes numbered 7 and 19 to a rating score of "A" in each box. The changes to the rating "scores" made by Ms May on 1 July 1999 resulted in a change in the classification level of care recipient 298936 from level 4 to level 5. (T10-T11; T2, p15)
17. In the case of care recipient 411901, Ms Jones decided on 1 July 1999 to change several of the rating "scores" entered by Ms Smith in the 21 boxes set out in section 1 of the "Application for Classification" form referred to in paragraph 14 above. Relevantly, Ms Jones changed Ms Smith's rating "score" of "B" in the box numbered 7 to a rating "score" of "A". The changes to the various rating "scores" made by Ms Jones on 1 July 1999 resulted in a change in the classification level of care recipient 411901 from level 3 to level 6. (T12-T13; T2, p17)
18. By letter dated 16 July 1999 Ms L Jones formally notified the Administrator of Bethavon Hostel of the abovementioned decisions by Ms May and Ms Jones to change the classifications of, among others, care recipients 298936 and 411901. (T9)
19. By letter dated 23 July 1999 the applicant requested the respondent to reconsider the abovementioned decisions. (T8)
20. On 1 September 1999 Linda Mack and Julie Breen, Departmental Appeal Officers, visited Bethavon Hostel for the purpose of evaluating the abovementioned decisions and the materials on which they were based and making recommendations to the respondent's delegate regarding the confirming, varying or setting aside of those decisions. The evaluation of the decision regarding care recipient 298936 was undertaken by Ms Mack, and the evaluation of the decision regarding care recipient 411901 was undertaken by Ms Breen.
21. On 3 September 1999 Ms Mack made a report in which she stated, inter alia, that her assessment was that the appropriate rating for care recipient 298936 on Question 7 (Bowel Management) was "A" and on Question 19 (Therapy) was also "A". Ms Mack's report concluded with a recommendation to the delegate that the decision of the review officer (Ms B May) to change the classification level of care recipient 298936 from level 4 to level 5 be confirmed. (T5)
22. On 3 September 1999 Ms Breen made a report in which she stated, inter alia, that her assessment was that the appropriate rating for care recipient 411901 on Question 7 (Bowel Management) was "A". Ms Breen's report also set out her ratings on four other Questions which, in three cases, differed from the ratings as assessed by the review officer (Ms L Jones), and concluded with a recommendation to the delegate that the decision of the review officer to change the classification level of care recipient 411901 from level 3 to level 6 be set aside and a new decision be substituted therefor, namely, a decision to change that classification level from level 3 to level 5. (T6)
23. By Departmental Minute dated 14 October 1999 Ms A McNeill referred the abovementioned reports and recommendations of Ms Mack and Ms Breen to a delegate of the respondent, Ms J Hefford, for decision. (T4)
24. On 15 October 1999 Ms J Hefford made the following decisions:
* a decision to confirm the decision of the review officer, dated 1 July 1999, to change the classification level of care recipient 298936 from level 4 to level 5; (T16)
* a decision to set aside the decision of the review officer, dated 1 July 1999, to change the classification level of care recipient 411901 from level 3 to level 6, and to substitute therefor a decision to change that classification level from level 3 to level 5. (T17)
By letter dated 15 October 1999 Ms Hefford notified the applicant of those decisions and the dates of their effect - namely, in the case of the former decision, 23 February 1999, and in the case of the latter decision, 19 March 1999. (T3)
25. On 27 October 1999 the applicant lodged with the Tribunal applications for review of Ms Hefford's decisions of 15 October 1999. (T1, pp5-8) (The Tribunal notes that, in terms of s 85-8 of the Act, the reviewable decisions in this matter are not Ms Hefford's decisions of 15 October 1999 (although the abovementioned applications for review could not validly be lodged with the Tribunal until those decisions had been made), but rather Ms May's and Ms Jones' decisions of 1 July 1999 referred to in paragraphs 16 and 17 above - see paragraph 29 below.)
The Matters for the Tribunal's Determination
26. Prior to the hearing the parties reached agreement regarding the only matter that was in dispute in relation to the decision under review concerning care recipient 411901, namely, the appropriate rating on Question 7 (Bowel Management). The parties agreed that the appropriate rating on that Question is "C" and they subsequently executed (on 2 July 2001), and filed with the Tribunal (on 16 July 2001), an Agreement to that effect, which included a request that the Tribunal, pursuant to s 42C of the AAT Act, make a decision in accordance with that Agreement. The parties executed a further Agreement on 12 June 2002, a copy of which was filed with the Tribunal on 18 June 2002, whereby they requested that the Tribunal, pursuant to s 42C of the AAT Act, set aside the decision under review, in respect of care recipient 411901, and in substitution therefor decide that "Classification Level 3 be assigned to" that care recipient.
27. As regards the decision under review concerning care recipient 298936, the matters which remain in dispute between the parties, and which must now be determined by the Tribunal, are the appropriate rating on Question 7 (Bowel Management) and the appropriate rating on Question 19 (Therapy). The respondent now contends that a rating of "B" is appropriate on Question 7, whereas the applicant contends that the appropriate rating is "D" or, at the very least, "C". With respect to Question 19 the respondent maintains that a rating of "A" is appropriate, whereas the applicant contends that the appropriate rating is "C" or, at the very least, "B".
A Preliminary Issue
28. Before embarking on a consideration and determination of the abovementioned matters concerning care recipient 298936, the Tribunal must first consider and determine a preliminary issue which was raised by the parties, namely: what material may the Tribunal have regard to - and what material may the Tribunal not have regard to - in determining those matters? Specifically, Mr Ritter (for the respondent) contended that the material to which the Tribunal may have regard is limited to relevant material which was in existence at the date of the applicant's reappraisal of the level of care required by care recipient 298936, namely 23 February 1999 (T4); whereas Dr Schoombee (for the applicant), on the other hand, contended that the material to which the Tribunal may have regard is not so limited and includes all relevant material which was in existence as of October 1999 (when the respondent's review and reconsideration process was completed) (T3, T4). Each counsel elaborated on his contention by extensive oral and written submissions and those submissions have been carefully considered by the Tribunal.
29. In order to test counsels' contentions and submissions it is necessary first to restate and consider the relevant provisions of the Act. The decisions under review in this matter are, in terms of s 85-8 of the Act, the "reviewable decisions" (as referred to in, relevantly, item 31 in the table in s 85-1 of the Act) that have been confirmed or set aside under (relevantly) s 85-5 - namely, the decisions of Ms B May and Ms L Jones, dated 1 July 1999, to change the classification levels of care recipients 298936 and 411901, respectively, under s 29-1 of the Act, each of which decisions has been reconsidered under s 85-5 of the Act and, in the case of the decision of Ms May regarding care recipient 298936, confirmed on 15 October 1999 and, in the case of the decision of Ms Jones regarding care recipient 411901, set aside (and a new decision substituted therefor) on 15 October 1999. Had the legislature intended that the decision to be reviewable by the Tribunal be the decision made by the Secretary (or delegate) under s 85-4(4) or s 85-5(5), rather than the decision made by the Secretary (or delegate) under s 29-1(1), it would have been a very simple matter expressly so to provide in s 85-8 of the Act (cf, eg, ss 60(1), 62(1) and 64(1) of the Safety, Rehabilitation and Compensation Act 1988; s 175 of the Veterans' Entitlements Act 1986; s 179 of the Social Security (Administration) Act 1999). Accordingly, the critical provision of the Act for present purposes is s 29-1 which relevantly states:
"(1) The Secretary must change a classification if the Secretary is satisfied that:
(a) the classification was based on an incorrect or inaccurate appraisal under section 25-3 or reappraisal under section 28-2; or
(b) the classification was, for any other reason, made incorrectly.
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(3) Before changing a classification under subsection (1), the Secretary must review it by examining:
(a) the material on which the classification was based; and
(b) any other material or information of a kind specified in the Classification Principles;
and considering whether the material supports the classification.
...".
It is common ground that each of the abovementioned decisions to change classifications under s 29-1(1) of the Act was made on the basis that the relevant Departmental Review Officer (acting as the delegate of the respondent) was satisfied that the existing classification was, in terms of s 29-1(1)(a), "based on an incorrect or inaccurate...reappraisal" under s 28-2 of the Act.
30. Section 29-1(3) prescribes 2 categories of material which must be examined in the review process which is required to be undertaken before a classification can be changed under s 29-1(1), namely:
"(a) the material on which the classification was based; and
(b) any other material or information of a kind specified in the Classification Principles"
and requires the decision maker, for the purpose of that review, to consider whether that material "supports the classification". Section 29-1(3) does not expressly state that the decision maker may not examine material other than that referred to in paras (a) and (b) of that subsection but, in the Tribunal's opinion, the review which subs (3) requires to be undertaken by the decision maker is, by necessary implication having regard to the terms of that subsection, limited to an examination of the categories of material or information referred to in paras (a) and (b). Accordingly, in reviewing a classification pursuant to s 29-1(3) of the Act the decision maker may examine only material or information which falls into either or both of the two categories referred to in paras (a) and (b) of that subsection.
31. The category of material referred to in para (a) of s 29-1(3) of the Act is:
"the material on which the classification was based".
It necessarily follows from the literal terms of para (a) - in particular, the use of the past tense ("was based") - that the category of material referred to in that paragraph is limited to material which was in existence at the time when the relevant classification was made and which formed the basis of that classification.
32. The content of the category of material referred to in para (b) of s 29-1(3) of the Act is, however, more problematic. That category of material is literally described in para (b) as:
"any other material or information of a kind specified in the Classification Principles".
The question instantly arises as to whether such a specification of "other material or information" has been made in the Classification Principles. Dr Schoombee (for the applicant) submitted that the Classification Principles do "specify" such "other material or information" for the purposes of s 29-1(3) of the Act. He referred in particular to s 9.31 of the Classification Principles and also to the following paragraph in the Guidelines for the interpretation of resident classification scale questions set out in Part 1 of Schedule 1 to the Classification Principles:
"The scale has been developed, and the weights calculated, to reflect supervision, observation, support, prompting and encouragement in the provision of care as well as physical assistance. It incorporates the need for continuing assessment and the monitoring and review of care plans."
Mr Ritter (for the respondent) submitted that in the Classification Principles there is no specification of material or information for the purposes of s 29-1(3) of the Act - that is, material or information which must be examined in reviewing a classification before a decision to change that classification may be made. He referred, by contrast, to other provisions in the Classification Principles (namely, ss 9.16, 9.23A, 9.24, 9.26, 9.29A, 9.32 and 9.36) wherein certain matters are specified expressly for the purposes of certain provisions of the Act.
33. The Tribunal accepts Dr Schoombee's submission on this point. The Tribunal acknowledges, as submitted by Mr Ritter, that there is no discrete Part or section in the Classification Principles which expressly purports to specify the matters referred to in s 29-1(3)(b) of the Act for the purposes of that paragraph (cf Parts 4 (ss 9.16, 9.17), 6A (ss 9.23A, 9.23B), 7 (ss 9.24, 9.25), 8 (ss 9.26-9.29B), 9 (ss 9.32, 9.33, 9.36, 9.37)). The Tribunal notes, however, that the matter referred to in s 29-1(3)(b) of the Act is very broadly described as:
"any other material or information of a kind specified in the Classification Principles". (emphasis added)
The Tribunal also notes that in the Explanatory Memorandum relating to the Aged Care Bill 1997 (to which the Tribunal has had regard pursuant to s 15AB of the Acts Interpretation Act 1901) it was stated (at p54) that sub-clause (3) of clause 29-1 of that Bill (which became subs (3) of s 29-1 of the Act) was
"intended to give the Secretary access to a broad range of information and material particularly in the case where it is suspected that false and misleading information has been used in providing the appraisal."
It is apparent that that intention could not be fulfilled if the material which must be examined by the respondent in reviewing a classification pursuant to s 29-1(3) of the Act were confined to the material used by the approved provider to make the appraisal or reappraisal (as the case may be) on which the classification was based. Similarly, it is apparent from the literal words of para (b) of s 29-1(1) of the Act, when read with para (a) of that subsection, that the respondent, for the purposes of exercising the power conferred by that subsection, may consider material other than the appraisal or reappraisal material on which the classification was based.
34. In the Tribunal's opinion, subs (3) of s 29-1 of the Act authorises and requires the respondent, before changing a classification under subs (1), to examine not only the material on which that classification was based (para (a)), but also any other material or information of a kind specified (in the ordinary sense of that word, namely, mentioned specifically or explicitly) anywhere throughout the Classification Principles (para (b)). The Tribunal accepts Dr Schoombee's submission that the Classification Principles specify material or information of the following kinds:
* "existing records about the care recipient's needs for care, assistance and support for the matters mentioned in Part 1 of Schedule 1" to the Classification Principles: see s 9.31;
* "care plans": see the paragraph in the Guidelines for the interpretation of resident classification scale questions in Part 1 of Schedule 1 to the Classification Principles quoted in paragraph 32 above.
The Tribunal notes, furthermore, that the resident classification scale questions in Part 1 of Schedule 1 to the Classification Principles, which are relevant for present purposes, specify the following kinds of material of information:
* "bowel management program"; "continence program"; "individualised continence management program": see Q7 - Bowel Management;
* "personalised therapy plan"; "therapy program": see Q19 - Therapy.
35. Accordingly, the Tribunal finds, for the purposes of this case, that the category of material referred to in para (b) of s 29-1(3) of the Act includes the kinds of material or information specified in the Classification Principles which are referred to in paragraph 34 above.
36. The Tribunal is also of the opinion, however, that the category of material referred to in para (b) of s 29-1(3) of the Act must be limited (like the category of material referred to in para (a) thereof) to material or information which was in existence when the relevant classification was made. That is because the focus of s 29-1(1) of the Act is on the making of the relevant existing classification - specifically, whether that classification was made on the basis of "an incorrect or inaccurate...reappraisal" under s 28-2 (s 29-1(1)(a)) or whether it was, "for any other reason, made incorrectly" (s 29-1(1)(b)). The focus of s 29-1(1) is not simply on the relevant existing classification itself and whether that classification is correct or incorrect. In other words, in conferring power to change an existing classification, s 29-1(1) of the Act requires the repository of that power to look back to the making of that classification and determine whether that classification was made correctly or incorrectly at that time, rather than to look at the existing classification itself and determine whether it is correct or incorrect. That being the case, it necessarily follows that the material or information which, pursuant to s 29-1(3), must be examined in reviewing an existing classification before a decision may be made to change that classification under s 29-1(1) is limited to material or information which was in existence at the time that classification was made. The Tribunal notes (as previously mentioned) that s 29-1(3) goes on to require the decision maker under s 29-1(1) also to consider whether the material referred to in paras (a) and (b) "supports" the existing classification. The use of the present tense ("supports"), rather than the past tense ("supported"), in s 29-1(3) is not, in the Tribunal's opinion, inconsistent with the above analysis and interpretation of s 29-1(1) and s 29-1(3)(b) of the Act. In the Tribunal's opinion s 29-1(3), properly construed, requires the repository of the power conferred by s 29-1(1) to consider whether relevant material of the kinds referred to in paras (a) and (b) of s 29-1(3), which was in existence at the time the existing classification was made, does, or does not, support that classification.
37. In the present case the dates on which the existing classifications - more specifically, the renewals of the classifications under s 28-1(1) on the basis of the reappraisals under s 28-2 of the Act - in respect of care recipients 298936 and 411901 were made do not appear clearly from the T documents. Additional documentation in relation to those dates was, following a directions hearing, filed with the Tribunal by the respondent on 15 February 2002 and on the basis of that documentation, together with section 5 of the relevant "Application for Classification" (or reappraisal) forms (T14 and T15 - see paragraphs 13 and 14 above), the Tribunal infers, and finds, that the respondent made the decisions renewing the relevant classifications on the dates those "Application for Classification" (or reappraisal) forms were lodged with the Department - namely, 12 March 1999, in the case of care recipient 298936, and 23 March 1999, in the case of care recipient 411901. Although the critical dates for present purposes are the dates those decisions were made (as stated above), the Tribunal notes that, pursuant to s 28-4 of the Act, the dates of effect of those decisions were 23 February 1999, in the case of care recipient 298936, and 19 March 1999, in the case of care recipient 411901. The parties were, by direction of the Tribunal made on 26 February 2002, given the opportunity to file written submissions in relation to the abovementioned documentation filed by the respondent on 15 February 2002 and the preliminary issue referred to in paragraph 28 above. Such submissions were filed on 12 March 2002 (by the applicant) and on 26 March 2002 (by the respondent) and have been carefully considered by the Tribunal.
38. The Tribunal, in exercising the review jurisdiction and power conferred upon it by s 85-8 of the Act together with s 25(4) of the AAT Act, "stands in the shoes" of the person who made the relevant decision which is under review and, by s 43(1) of the AAT Act, is authorised, for the purpose of reviewing that decision, to exercise all the powers and discretions that are conferred by the Act on the person who made that decision. By the same token, however, the Tribunal's power on review is subject to any relevant statutory limitations and restrictions to which the decision maker's powers are subject. The ultimate question for the Tribunal's determination on review is whether the decision under review is, on the material before the Tribunal, the correct or preferable decision, and, if not, what is the correct or preferable decision on that material: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419, 429-430. In determining what material may properly be taken into account by the Tribunal, however, the nature of the decision under review must be considered, it being borne in mind that in reviewing that decision the Tribunal is obliged to address the same question as was before the decision maker: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 345; The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234. Similarly, in Comptroller-General of Customs v Members of Administrative Appeals Tribunal (1994) 123 ALR 140 the Federal Court of Australia (Hill J) said (at 151):
"...the review to be conducted by the tribunal is a review of a specific decision and if that decision has to be made by reference to a particular point of time the tribunal will be limited to deciding the question by reference to that point of time."
39. Having regard to the abovementioned principles the Tribunal finds that, in reviewing the relevant decisions to change the classifications of care recipients 298936 and 411901 under s 29-1(1) of the Act, and determining the correct or preferable decisions, the material which it may examine is limited to relevant material which was in existence at the time when those classifications - more specifically, the decisions to renew those classifications under s 28-1(1), on the basis of the reappraisals pursuant to s 28-2, of the Act - were made, namely, 12 March 1999 in the case of care recipient 298936, and 23 March 1999 in the case of care recipient 411901.
The Applicant's Case
40. The applicant's case comprised the oral evidence of Diane Fergusson-Stewart and Alex Murphy, documentary outlines of their evidence (Exhibits A1 and A2, respectively), and other documentary exhibits (A3-A5).
The Evidence of Diane Fergusson-Stewart
41. Ms Fergusson-Stewart, Executive Manager of Caring Services, Uniting Church Homes, gave brief, general evidence regarding the role of Uniting Church Homes as a provider of aged care (including residential care) in Australia (including Western Australia).
The Evidence of Alex Murphy
42. Mr Murphy, Care Manager of Bethavon Hostel ("Bethavon"), gave extensive oral evidence. He told the Tribunal that Bethavon is a 31-bed hostel in Northam, Western Australia, which is owned by Uniting Church Homes, and that he took up his present appointment with Bethavon in April 1998.
43. In his Outline of Evidence (Exhibit A2) Mr Murphy referred (at para 11) to the various categories of material held by Bethavon on the basis of which the care needs of individual residents are assessed by Bethavon staff and individual care plans for those residents are developed. Those categories of material were described in para 11 of Mr Murphy's Outline of Evidence as follows:
"(a) Assessments by the Aged Care Assessment Team (referred to as 'ACAT'). This Team is independent of Bethavon;
(b) Professional assessments including assessments by specialists in geriatric medicine, treating general practitioners and physiotherapists;
(c) Outcomes of appointments with treating doctors (usually treating general practitioners);
(d) Progress notes;
(e) Medication charts;
(f) Treatment charts;
(g) Therapy activity notes;
(h) Statistics of attendance at activity programs;
(i) Program outlines;
(j) Invoices;
(k) Hand-over sheets;
(l) Call-out logs;
(m) Information from the resident and/or the resident's family members;
(n) Duty statements of staff."
In his oral evidence Mr Murphy said that, on the basis of the abovementioned kinds of material which have been accumulated over the relevant assessment period, an individual care plan is developed for each resident which sets out the problems that have been found in relation to the resident over that period, the goal that is to be aimed for regarding the resident, and the "interventions" that are to be used to try to attain that goal. He added that, once a care plan is in place, the aim is then to try to minimise the documenting of progress notes in relation to the relevant resident by resorting to "exception reporting" only - that is, the reporting only of matters which fall outside, or are different from, the matters referred to in the care plan. He said that the practice of "exception reporting" was first adopted at Bethavon in 1999 and arose out of the Department's Documentation and Accountability Manual and discussions with Departmental staff.
44. In the course of Mr Murphy's oral evidence Dr Schoombee (for the applicant) tendered 2 bundles of documents, namely, a voluminous file containing the whole of the applicant's documentary records relating to care recipient 298936 for the period of her residence at Bethavon commencing on 4 July 1995 (Exhibit A3), and a bundle of 23 documents (numbered B1-B23) to be referred to specifically in Mr Murphy's evidence (Exhibit A4).
45. Paragraphs 15-19 of Mr Murphy's Outline of Evidence address matters relevant to Question 7 ("Bowel Management") in the "resident classification scale" set out in Part 1 of Schedule 1 to the Classification Principles (see para 10 above), insofar as they relate to care recipient 298936. Those paragraphs (in which care recipient 298936 is referred to as "X") state as follows:
"15 In respect of the assessment of the level of care required for bowel management in X's case, the following documentation existed and was available to the Respondent at the time of the review in July 1999 and/or at the time of the reconsideration in September/October 1999:
* Report from the Department of Geriatric Medicine of the Royal Perth Hospital dated 1 February 1999;
* Care Plan relating to "Continence - faecal" in respect of the period 1 October 1997 to 13 August 1998;
* Care Plan in respect of "Continence - faecal" for the period 13 August 1998 to 22 February 1999;
* Progress notes relating to bowel management summarised for the period 26 September 1995 to 18 February 1999;
* Medication chart - indicating regular provision of 1 x 2 milligram Imodium daily and listing on the Webster pack;
* Doctors' (general practitioners') orders;
* Personal care assessment forms completed on 12 July 1995, 23 February 1996 and 22 August 1996;
* Application for admission to a hostel dated 4 July 1995;
* Application for classification under Aged Care Resident Classification Scale completed on 23 February 1999;
* Bowel assessment dated 9 April 1999;
* Progress notes from 26 February 1999 and continuing;
* Invoices confirming the purchase of incontinence pads used by X;
* Treatment charts;
* Duty statements.
I will refer to these documents during my evidence.
16 Documentation available clearly indicates that X suffered incontinence of both urine and faeces. In respect of her faecal incontinence X wore pads both day and night. In addition to this, her level of incontinence was monitored by staff and controlled by the use of Imodium. Imodium is an anti-diarrhoeal medication used for the control and symptomatic treatment of chronic diarrhoea. The monitoring of X's bowel activity is evidenced in the progress notes, as is the administration of additional Imodium when required. X was given 1 x 2 milligram Imodium per day on a regular basis at the direction of her general practitioner. When she experienced bouts of diarrhoea she was given additional Imodium. In addition to the use of pads and Imodium, X was prompted to toilet and was also prompted to drink fluids to prevent dehydration. At times consultation was necessary with X's treating general practitioner and/or a continence nurse. Such consultations are evidenced in the progress notes. X also required substantial emotional/social support aimed at maintaining her dignity and as much independence as possible. As shown in the progress notes, X was frequently aware of her faecal incontinence and embarrassed and upset at its occurrence. At these times, she required support, reassurance, tact and understanding from Bethavon's staff.
17 The management of X's faecal incontinence was individualised in that it was designed specifically for X to meet her pattern of incontinence and with the objective of maintaining continence as much as possible. X's level of continence was constantly monitored. The use of pads, prompting to toilet, the administration of Imodium and prompting to take fluids was planned and implemented as required (with pads being utilised on a continual basis). The continence program provided to X was specific to her and did not relate to residents generally. The efficacy of the plan was evaluated as shown in the Care Plans and also as shown by referral to the treating general practitioner and continence nurse for advice when required. Bethavon certainly utilised more interventions than pads only or prompting only. Both pads and scheduled prompting were utilised, as well as the administering of Imodium, the assessment of the need for and administering of additional Imodium as required, the maintenance of fluid level, the maintenance of exercise and emotional/social support.
18 There was considerable physical work involved in managing X's faecal incontinence. Notably the following work was involved:
* Bethavon's staff assessing the requirement for, ordering, receiving and storing pads;
* The provision of assistance to change pads;
* Personal washing and other personal hygiene care;
* Emptying pad bins and disposing of pads;
* Extra laundry (clothes, bedding, towels, kylies and upholstery on chairs);
* Regularly prompting to exercise;
* Provision of fluids and prompting to drink;
* Administering of Imodium;
* At times, bouts of incontinence required call-outs to the staff members at night for assistance (for example, call-out on 11 January 1999 at 4:00am.
19 In assisting X after bouts of incontinence, staff often found it difficult to move her, as she is quite a heavy person. She required considerable physical and emotional care from staff following incontinence. Staff would talk with her, explain what had happened (if necessary) and what they were doing, undress her, change the pad and her pants and also change her clothes if necessary. She would also be washed and dried and powdered, and if necessary, cream would be applied to maintain skin integrity. Whilst dealing with bouts of incontinence, staff would talk to X all of the time, in an attempt to minimise her distress and to take her mind off the cleaning up process. They would re-assure her that it happens to other people as well. Staff would talk to X about her favourite things to take her mind off the episode. They would use a frame over the toilet seat and shower her to clean up, if necessary. The work was usually completely hands-on, as X could not be left alone due to the risk of falling. Initially, X was aware of her incontinence, however, over time, there were episodes when she did not realise that she had been incontinent and this needed to be noticed by staff and explained to X. She needed assistance in using pads, changing pads, dressing, washing and re-dressing. She of course was also completely dependent upon having her bedding and upholstery cared for by staff and her overall level of hygiene monitored and maintained by staff. Bouts of incontinence were such that often clean up involved showering, using a shower chair and the cleaning of floors and bedding. Incontinence chair pads were used and changed daily. A 'kylie' was placed on X's bed and changed as required. On occasion carpet in her bedroom needed to be steam cleaned. The largest size incontinence pads were used on advice from Stephanie Bain, the continence nurse from the Northam Regional Hospital."
46. Paragraphs 20-29 of Mr Murphy's Outline of Evidence address matters relevant to Question 19 ("Therapy") in the "resident classification scale" set out in Part 1 of Schedule 1 to the Classification Principles (see paragraph 10 above), insofar as they relate to care recipient 298936. Those paragraphs (in which care recipient 298936 is referred to as "X") state as follows:
"20 From as early as 1994 it had been noted that X had poor mobility. For example, it is noted in a report of Dr Peter Goldswain, physician, of the Royal Perth Hospital Department of Geriatric Medicine dated 3 February 1994. It was noted that X reported feeling unsteady and required a frame to ambulate.
21 In January 1999, X suffered a fracture to her pubic ramus. She was admitted to the Northam Regional Hospital for treatment in this regard. While she was in hospital, there was concern as to whether she would remain hostel fit. A geriatric assessment was undertaken, at least in part, for the purpose of assessing X's level of function. The report from the Department of Geriatric Medicine of the Royal Perth Hospital dated 1 February 1999 refers to X's poor mobility and the issue of whether she would be hostel fit, but noted that she was ambulating on her own with a zimmer frame and that Bethavon's staff had confirmed an improvement in her mobility. It was noted that since discharge from hospital she had been able to walk from her room to the dining room with a zimmer frame.
22 The discharge plan from the Northam Regional Hospital dated 5 February 1999 refers specifically to the need for the provision of physiotherapy to X. The plan stated that X should be encouraged to participate in an exercise group at Bethavon, that she should continue walking with a frame regularly each day and that there should be on-going assessment by a physiotherapist at Bethavon. It was also noted that in respect of physiotherapy X could be reviewed at the Northam Hospital on request. The discharge plan also refers to occupational therapy and advises on-going monitoring for equipment or aids required by X by the Occupational Therapist at Bethavon. Occupational therapy aids provided included a zimmer walking frame, a bed rail and a 'goose-neck' (to assist X when lifting herself while in bed).
23 X was consistently encouraged by Bethavon staff to walk using her frame. In particular, she was consistently encouraged and supported to walk to and from the area in which exercise groups were being held. Persistence in encouraging X to walk and supporting her in making the effort to walk on a daily basis was important therapy for her well-being. It was her exercise as specified in her physiotherapy plan dated 4 March 1999. The progress notes show that X was very regularly prompted and encouraged to walk to the Bethavon exercise group. The activity program attendance statistics show that X regularly attended the morning exercise group.
24 The Care Plan in respect of X dated 22 February 1999 provided for therapy. The problem (sic) identified included poor mobility, a previous fracture of the neck of the femur and a fractured pubic ramus. The goal of therapy was to maintain X's mobility and if possible, improve it slightly, after hospitalisation. The intervention identified was to encourage X to participate in group exercises and to walk with her frame. This intervention entailed the occupational therapy assistant going to X's room each day on which exercises were held (Monday to Friday) and prompting and encouraging her to walk to the exercise group (approximately 35 metres). The occupational therapy assistant accompanied X both to and from the group. X's participation in the actual exercises was minimal, however, her attendance at these groups resulted in her walking on her own and thereby exercising on a regular basis. While walking to and from the group the occupational therapy assistant would encourage X to stand up straight in the frame and to walk on her own, without assistance.
25 X was assessed by a physiotherapist employed by Bethavon on 4 March 1999. A written physiotherapy assessment was provided. It noted that X exhibited some impairment in mobility and had reduced motivation to be active. The plan involved improving her level of physical functioning through a graduated individualised exercise program because X had indicated that she felt embarrassed exercising with the group. This assessment also further endorsed the plan to maintain and if possible, improve X's ambulation through encouragement to walk more and encouragement to stand up tall.
26 The physiotherapy notes and the progress notes also indicate that low back pain was addressed through massage, mobilisation and the application of heat beads. The progress notes also indicate that heat beads were provided regularly to X and provided her with some pain relief. The use and efficacy of heat beads is referred to in the progress notes. The use of heat beads is also confirmed in the treatment charts.
27 On 18 March 1999 the physiotherapist employed by Bethavon prepared a specific plan of exercises for X. The physiotherapist, regularly offered to assist X in performing these exercises, however, X was reluctant to do so.
28 Considerable effort was required to consistently prompt and encourage X to continue walking and to attend group exercises. Whilst it is noted in the physiotherapy report/notes dated 30 March 1999 that X was disinterested in walking, doing exercises or having her back treated, the progress notes and activity attendance statistics indicate that Bethavon staff consistently succeeded in convincing X to walk to group exercises, and did massage and apply heat beads to her back. X very regularly walked to and from group exercises, although she rarely participated in them. The progress notes and activity attendance statistics show that the effort and encouragement provided to X resulted in her walking at least three times per week.
29 X's walking required personal attention from Bethavon staff and was prompted/encouraged and undertaken at the direction of a qualified physiotherapist following and individual assessment of X's physical condition and therapy needs. It was a personalised plan in that it related specifically to X, and in particular, her need to continue to walk after the fracture to her pubic ramus."
47. In his oral evidence-in-chief Mr Murphy was referred to each of the "B documents" comprising Exhibit A4, and to certain related documents contained in Exhibit A3, and he commented on the contents of those documents. The Tribunal will refer to the contents of those documents for the purpose of making its findings later in these reasons. As regards the matter of therapy, however, Mr Murphy gave certain evidence which it is appropriate to record at this point. Mr Murphy said that a physiotherapist was employed at Bethavon in 1998 but that she resigned in December 1998. He said that, owing to difficulties in hiring a physiotherapist in Northam (which he described as "a small town of 5,000 people"), it was not until 4 March 1999 that a new physiotherapist (Ms T Fisher) commenced employment at Bethavon. Mr Murphy was referred to document B15 (part of Exhibit A4) which he confirmed was a Discharge Plan from the Northam Regional Hospital, with respect to care recipient 298936, signed by "JA Barnes" and dated 5 February 1999. Mr Murphy said that Ms Barnes is a registered nurse and is the clinical co-ordinator of the "day-hospital" section of the Northam Regional Hospital. He explained that that Discharge Plan recorded the essential requirements as regards physiotherapy for the discharge of care recipient 298936 from the Hospital back to Bethavon, and that that Plan would have been prepared with input from the Physiotherapy Department of the Hospital. Mr Murphy also explained that he and Ms Smith (the Assistant Manager of Bethavon) had delayed sending to the Department the "Application for Classification" form regarding care recipient 298936, dated 23 February 1999 (T14), until the new physiotherapist (Ms T Fisher) had commenced employment at Bethavon and had confirmed the abovementioned Discharge Plan from the Northam Regional Hospital and had prepared a physiotherapy assessment and plan for care recipient 298936. Mr Murphy was referred to document B16 (part of Exhibit A4) and he confirmed that that document was the physiotherapy assessment and plan for care recipient 298936 prepared by Ms Fisher on 4 March 1999, the day she commenced employment at Bethavon. Mr Murphy also confirmed that document B21 (part of Exhibit A4) records an exercise program for care recipient 298936 drawn up by Ms Fisher on 18 March 1999 for the purpose of implementing the abovementioned physiotherapy plan dated 4 March 1999.
The Respondent's Case
48. The respondent's case comprised the written statements (Exhibits R3, R7 and R9) and oral evidence of Bruce Malcolm Wight, Barbara May and Linda Mack, written statements of Jennifer Susan Hefford and Raino Perring (Exhibits R4 and R5), Chapter 5 ("Classification Appraisal") of the Department's Documentation and Accountability Manual (Exhibits R1 and R2), and other documentary exhibits (R6 and R8).
The Evidence of Bruce Malcolm Wight
49. Mr Wight told the Tribunal that he is the Director of the Accountability Section of the Department and the National Manager of the Resident Classification Scale which is set out in Part 1 of Schedule 1 to the Classification Principles. He said that he is a qualified accountant and has been employed within the Department (and its predecessors) for the last 10 years. He said that in 1996 he worked with The University of Western Australia's Aged Care Research and Evaluation Unit in developing the Resident Classification Scale and he was subsequently actively involved in its introduction in 1997. He has also been responsible for the development and distribution of the Department's Documentation and Accountability Manual and Resident Classification Scale Training Workbook.
50. Mr Wight's evidence consisted, for the most part, of his opinions on the proper interpretation of the relevant provisions of the Resident Classification Scale in Part 1 of Schedule 1 to the Classification Principles - namely, Question 7 - Bowel Management , and Question 19 - Therapy - and on the appropriate rating for care recipient 298936 on those Questions having regard to the material he considered was relevant and "admissible". In the Tribunal's opinion, notwithstanding Mr Wight's expertise in relation to the Resident Classification Scale, it is not appropriate for the Tribunal to give any weight to his opinions on those matters other than to note them. It is the Tribunal's function to form its own opinions and to make findings on those maters on the basis of what it considers to be the appropriate material before it.
The Evidence of Barbara May
51. Ms May told the Tribunal that she is an Executive Officer in the Compliance Section of the Department in Perth. She said that she is a registered nurse and has worked as a clinical nurse in the geriatric field since 1982 and has been employed in the Department for the last 9 years. She confirmed that on 1 July 1999 she conducted a review visit at Bethavon for the purpose of reviewing the reappraisal by Ms M Smith (of Bethavon), dated 23 February 1999, of the level of care required by care recipient 298936, and that she completed a "Resident Classification Scale Worksheet" dated 1 July 1999 (T11) stating her findings on that review.
52. Ms May's evidence consisted, for the most part, of an outline of her standard practices in conducting review visits, including the review visit at Bethavon on 1 July 1999 for the purpose of reviewing the reappraisal of the level of care required by care recipient 298936. Ms May also explained her understanding of the relevant Questions in the Resident Classification Scale (namely, Question 7 - Bowel Management, and Question 19 - Therapy) and her reasons for arriving at a rating on each of those Questions, in relation to care recipient 298936, different from the rating made by Ms Smith (of Bethavon) in the reappraisal dated 23 February 1999. It is not the function of the Tribunal in this matter, however, to review Ms May's reasons for making the relevant ratings and ultimately deciding to change the classification level in relation to care recipient 298936 on 1 July 1999. Accordingly, the Tribunal, while noting Ms May's evidence, does not attach any weight to it for the purpose of performing its proper function in this matter - namely, determining for itself, on the basis of the appropriate material, the correct ratings for care recipient 298936 on Questions 7 and 19 in the Resident Classification Scale for the purpose of deciding the correct classification level of that care recipient.
The Evidence of Linda Mack
53. Ms Mack told the Tribunal that she is presently a Commonwealth Nursing Officer employed in the Payments Assessments and Complaints Section of the Department in Perth. She said that she has worked in aged care for approximately 18 years and has been employed in the Department since 1996. She confirmed that on 1 September 1999 she conducted an "appeal visit" at Bethavon for the purpose of undertaking a reconsideration, pursuant to s85-5 of the Act, of Ms May's decision of 1 July 1999 to change the classification level in relation to care recipient 298936, and that she prepared a report dated 3 September 1999 (T5) setting out her findings and the material on which they were based.
54. Ms Mack's evidence consisted, for the most part, of an outline of her standard practices in conducting appeal visits, including the abovementioned appeal visit at Bethavon on 1 September 1999, together with an explanation of her understanding of the relevant Questions in the Resident Classification Scale (namely, Question 7 - Bowel Management, and Question 19 - Therapy) and her reasons for making the findings and recommendation set out in her appeal report of 3 September 1999. The Tribunal's function in this matter, however, is not to review Ms Mack's reasons for making the abovementioned findings and recommendation (which, the Tribunal notes, was adopted by the respondent's delegate, Ms J Hefford, in her decision of 15 October 1999 (T3) to confirm Ms May's decision of 1 July 1999 to change the classification of care recipient 298936). Rather, the Tribunal's function is, as mentioned in paragraph 52 above, to make its own determination, on the basis of the appropriate material, regarding the correct ratings for care recipient 298936 on Questions 7 and 19 in the Resident Classification Scale for the purpose of deciding the correct classification level of that care recipient. Accordingly, the Tribunal, while noting Ms Mack's evidence, does not attach any weight to it for present purposes.
The Statement of Jennifer Susan Hefford
55. In a written statement dated 30 April 2001 (Exhibit R4), Ms Hefford confirmed that she, in the capacity of delegate of the respondent, made the relevant decision under s 85-5 of the Act on 15 October 1999 confirming the decision of Ms B May, dated 1 July 1999, under s29-1 of the Act to change the classification of care recipient 298936. She also confirmed that she made that decision on the basis of the reports of the appeal officer (namely Ms L Mack) and review officer (namely, Ms B May).
The Statement of Raino Perring
56. In a written statement dated 22 June 2001 (Exhibit R8), Mr Perring stated that, for the last 11 years, he has held senior positions in the Department's Aged Care Division and is presently the Acting Assistant Secretary in the Accountability and Quality Assurance Branch which is responsible for distributing the Department's Documentation and Accountability Manual. He confirmed that Bethavon was included in the Branch's mail-out list of aged care providers for the purpose of distributing the Manual (and periodic revisions thereof) and other relevant Departmental communications. He also confirmed that, in accordance with the Branch's standard mail-out practice, a copy of the 1998 revision of Chapter 5 of the Manual (Exhibit R2) would have been sent by mail to Bethavon.
Findings
57. The Tribunal will now proceed to make findings as to the appropriate ratings of the care needs of care recipient 298936 in respect of Question 7 - Bowel Management, and Question 19 - Therapy, in the Resident Classification Scale set out in Part 1 of Schedule 1 to the Classification Principles.
Question 7 - Bowel Management
58. The respondent has conceded that the care recipient was frequently incontinent of faeces and that, accordingly, a rating of "A" is inappropriate. Having regard to the relevant material, that concession was, in the Tribunal's opinion, rightly made. As regards that material the Tribunal notes that:
* a report on the care recipient by Drs P Loh and P Goldswain of the Department of Geriatric Medicine, Royal Perth Hospital, dated 1 February 1999 (Exhibit A3, pp 316-317; Exhibit A4, document B11), states that she "continues to be incontinent of faeces and urine";
* the progress notes made by Bethavon staff with respect to the care recipient record intermittent episodes of "loose bowels", diarrhoea and faecal incontinence over the period from September 1995 to February 1999 (Exhibit A3, pp 346-452; Exhibit A4, document B8); and
* care plans for the care recipient in respect of faecal incontinence ("very loose bowels (diarrhoea)") were prepared by Bethavon staff for the periods from 1 October 1997 to 13 August 1998 and from 13 August 1998 to 22 February 1999 (Exhibit A3, pp 311,312; Exhibit A4, documents B5 and B6).
On the basis of that material the Tribunal finds that the care recipient was unable to maintain continence of faeces independently and that, accordingly, a rating of "A" on Question 7 - Bowel Management is inappropriate. The Tribunal also finds that the care recipient was able to maintain continence of faeces, or her incontinence was reduced, only because of the care provided by the staff of Bethavon. The question thus arises, in terms of the Classification Principles, whether a rating of "B", "C" or "D" is the appropriate rating on Question 7 - Bowel Management in this case. That matter is to be determined in accordance with the "Guidelines for the interpretation of resident classification scale questions" set out in Part 1 of Schedule 1 to the Classification Principles. Those guidelines relevantly state:
"The requirements of the B, C and D ratings are minimums for attaining that level. Where a care recipient's care needs are above the minimum for that rating, that will remain the applicable rating if they do not meet the criteria of the higher rating.
Where questions list examples, they are listed as an indicative guide and are not exhaustive."
59. According to the relevant material before the Tribunal - namely, the Bethavon progress notes and care plans referred to in the preceding paragraph - the relevant care provided to the care recipient by Bethavon staff comprised:
* the administering of one 2mg imodium tablet at 8.00am each day;
* the administering of an additional 2mg imodium tablet when required;
* the provision of continence pads each day and night;
* the provision of assistance to change continence pads when necessary and the giving of encouragement to seek such assistance;
* washing, drying and powdering the care recipient, reassuring the care recipient, cleaning or changing her clothing and bedding and generally cleaning up, after episodes of incontinence; and
* the periodic evaluation of the above "interventions".
According to the Bethavon medication charts, scheduled toileting, together with prompting and assistance to go to the toilet, did not commence until 16 April 1999 (see Exhibit A3, p236; Exhibit A4, document B4A) - that is, after the date of the decision to renew the classification of care recipient 298936, namely, 12 March 1999 - and, accordingly, the Tribunal has not had regard to those forms of care provided by Bethavon staff.
60. In terms of the Classification Principles a "D" rating is appropriate where "extensive support" is required by, and provided to, a care recipient in circumstances where that care recipient "would usually be incontinent but has an individualised continence management program in place to optimise continence level". According to the Classification Principles, a "continence program is based on an individualised assessment of the continence state, with planning, implementation and evaluation guidelines"; such a program "means more interventions than pads only, or prompting only - for example, individualised habit training or scheduled toileting, and be (sic) drawn from information in the care recipient's continence assessment." The phrases "prompting", "habit training", and "scheduled toileting" are defined in the Classification Principles (see paragraph 10 above). In the Tribunal's opinion the "interventions" of Bethavon staff, as itemised in paragraph 59 above, together with their periodic evaluation (which, the Tribunal notes from the relevant care plans, was neither frequent nor regular), fall well short of the minimum required to constitute a "continence program" and the kind of "extensive support" necessary to make a "D" rating appropriate.
61. In terms of the Classification Principles a "C" rating is appropriate where "major support" is required by, and provided to, a care recipient in circumstances where "constipation is prevented or continence level maintained by a bowel management program". According to the Classification Principles a "bowel management program includes monitoring and recording bowel activity, and may include any of the following:
* maintaining adequate fluid intake;
* laxatives and aperients;
* stool softeners or fibre supplements;
* high fibre diet;
* suppositories or enemas;
* exercise or massage."
It seems to the Tribunal that a "C" rating is inappropriate in a case (such as the present) where the care recipient suffers from incontinence, but not from constipation. The kind of "bowel management program" contemplated by the Classification Principles as necessary to support a "C" rating on Question 7 in the Resident Classification Scale is, in the Tribunal's opinion, one which is aimed at preventing constipation and maintaining an appropriate "continence level". The respondent was, however, prepared to concede that a rating of "C" may be appropriate in a case where the relevant care recipient is suffering from incontinence, but not from constipation, provided that such care recipient is on a "bowel management program". Although the Tribunal does not regard that concession as correct, it will nevertheless express its opinion on whether a "C" rating is supported in this case on the basis that it is open to it to determine such a rating. In the Tribunal's opinion, the "interventions" of Bethavon staff, as itemised in paragraph 59 above, together with their periodic evaluation, are insufficient to constitute a "bowel management program" and the kind of "major support" necessary to make a "C" rating appropriate. There is evidence before the Tribunal that Bethavon staff, in addition to the abovementioned "interventions", carried out the following "interventions" in the case of care recipient 298936:
* the providing of fluids and prompting to drink to maintain hydration
* prompting and encouraging to exercise
* providing emotional support
but those additional "interventions" did not form part of any care plan for bowel management or any "bowel management plan" for the maintenance of continence level. In the Tribunal's opinion the abovementioned "interventions" of Bethavon staff do not constitute a "bowel management program" of the kind necessary to support a "C" rating.
62. Finally, in terms of the Classification Principles a "B" rating is appropriate where "some support" is required by, and provided to, a care recipient in circumstances where the care recipient "wears continence aids at all times related to frequent incontinence that cannot be improved by a continence program". The respondent now concedes that a "B" rating is appropriate in the case of care recipient 298936. The Tribunal, having regard to the relevant evidence and material before it, is of the opinion that that concession was rightly made. Accordingly, the Tribunal finds that the appropriate rating of the care needs of care recipient 298936 in respect of Question 7 - Bowel Management in the Resident Classification Scale set out in Part 1 of Schedule 1 to the Classification Principles is "B".
Question 19 - Therapy
63. According to the Classification Principles this question "relates to therapy provided to care recipients where the facility provides the therapy, or the facility pays for the therapy, and the therapy is documented as a care need". Such therapy includes, relevantly, physiotherapy, "physical therapy developed by registered nurses", and "occupational therapy". The role of the therapist - who "should meet the requirements for full membership of the therapists' national or state body OR be a registered nurse for physical therapy" - is "to individually assess the care recipient's need for the therapy and to develop a personalised therapy plan". The therapy program need not be implemented by the therapist - it may, instead, be implemented by a staff member of the facility "at the direction of the therapist". It is, however, "the role of the therapist to regularly evaluate, by assessment, the effectiveness of the therapy program". The determination of the appropriate rating - namely, "A", "B", "C", or "D" - on this question depends on the frequency with which the therapy is provided to the care recipient either by, or at the direction of, the qualified therapist in accordance with the "personalised therapy plan" or program developed by that therapist.
64. The first question to consider is whether, in the case of care recipient 298936, therapy was "documented as a care need", and her need for therapy was individually assessed, and a "personalised therapy plan" was developed, by an appropriately qualified therapist. Clearly, in the case of the care recipient, therapy was documented by Bethavon as a care need: see, for example, the Care Plan dated 22 February 1999 (Exhibit A3, p321; Exhibit A4, document B20) prepared in response to the Discharge Plan dated 5 February 1999 (Exhibit A3, p323; Exhibit A4, document B15) signed by Ms J A Barnes of the Northam Regional Hospital. Furthermore, the care recipient's need for therapy was individually assessed, not only by staff at the Northam Regional Hospital prior to the preparation of the abovementioned Discharge Plan dated 5 February 1999, but also by Ms T Fisher, the physiotherapist employed by Bethavon, on 4 March 1999: see Physiotherapy Assessment dated 4 March 1999 signed by Ms T Fisher, Physiotherapist (Exhibit A3, pp324-325; Exhibit A4, document B16). Finally, a "personalised therapy plan" for the care recipient was developed by Ms Fisher (who, the Tribunal is prepared to assume in the absence any suggestion by the respondent to the contrary, is an appropriately qualified physiotherapist) and was set out at the end of the abovementioned Physiotherapy Assessment dated 4 March 1999. That plan comprised the following program:
* improving the current level of physical functioning through a graduated individualised exercise program (as the care recipient is "embarrassed to exercise with the group");
* maintaining/improving ambulation through encouragement to walk more and encouragement to stand up tall;
* addressing reduced range of movement of the right hip through active/ assisted exercises; and
* addressing low back pain through massage, mobilisation and heat beads.
The Tribunal, however, is not prepared to regard the Discharge Plan dated 5 February 1999 prepared by staff at the Northam Regional Hospital as a "personalised therapy plan" for this purpose because it is very brief and general and there is no direct evidence before the Tribunal regarding the identity and qualifications of the author of that document.
65. The next question to consider is whether therapy was in fact provided to care recipient 298936 in accordance with the abovementioned therapy plan or program and, if so, the frequency with which it was provided. The evidence before the Tribunal, and the Tribunal's observations thereon, are as follows:
* an individualised exercise program for the care recipient was not prepared by Ms Fisher until 18 March 1999 (Exhibit A3, p322; Exhibit A4, document B21) - that is, after the date of the relevant classification renewal decision (namely, 12 March 1999), although the Tribunal notes that, in any event, the care recipient, despite encouragement by Ms Fisher, generally declined to perform those exercises;
* the care recipient attended general group exercises at Bethavon 4-5 times per week in November 1998 and December 1998 - the Tribunal notes, however, that this period preceded the development of a personalised therapy plan for the care recipient and, accordingly, her participation (which, in any event, was minimal) in those group exercises cannot be said to constitute therapy provided by Bethavon in accordance with such a plan;
* between December 1998 and 4 March 1999 no physiotherapist was employed by, or in attendance at, Bethavon - accordingly, any therapy provided at Bethavon to the care recipient during that period was not provided either by a qualified therapist or by a staff member at the direction of such a therapist, as required by the Classification Principles;
* between 4 March 1999 and the date of the relevant classification renewal decision (namely, 12 March 1999), the care recipient did not perform exercises either with Ms Fisher's assistance or with the assistance of Bethavon staff at the direction of Ms Fisher;
* between 4 March 1999 and the abovementioned date of the classification renewal decision the care recipient was provided with "heat beads";
* the Bethavon progress notes refer to the care recipient's being prompted to attend, and attending, "activities" on a regular basis - the Tribunal, however, regards those references to "activities" as referring to group activities, such as bingo, quizzes, singing, board games, church attendance and the like, and not to exercises (the Tribunal notes that such group activities are covered by Question 15 in the Resident Classification Scale, on which the care recipient has been rated "C" ("major support")).
66. Having regard to the relevant evidence and material before it, the Tribunal is not satisfied that, during the period prior to the date of the relevant classification renewal decision (namely, 12 March 1999), care recipient 298936 was provided, at Bethavon, with therapy in accordance with a "personalised therapy plan" - namely, the plan prepared by Ms Fisher on 4 March 1999 set out in paragraph 64 above - at least once per week, or at all. Accordingly, the Tribunal finds that the minimum requirement for a rating of "B" in respect of Question 19 - Therapy in the Resident Classification Scale set out in Part 1 of Schedule 1 to the Classification Principles is not met in the case of care recipient 298936 and that the appropriate rating in respect of that Question in this case is, therefore, "A".
Conclusion
67. As regards the matters in dispute in respect of care recipient 298936 the Tribunal has found that the appropriate rating on Question 7 - Bowel Management in the Resident Classification Scale set out in Part 1 of Schedule 1 to the Classification Principles is "B", and that the appropriate rating on Question 19 - Therapy therein is "A". According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, those ratings, together with all of the other ratings (which are not in dispute), produce an aggregate score of 47.75. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 47.75 falls within the range of scores (namely, 39.81 - 50.00) for classification level 5. Accordingly, the Tribunal determines that the appropriate classification level for care recipient 298936 is level 5. That, the Tribunal notes, was the appropriate classification level as determined in the relevant reviewable decision of 1 July 1999 which was confirmed on reconsideration on 15 October 1999. Accordingly, that reviewable decision will be affirmed by the Tribunal.
68. As regards care recipient 411901 the parties, as stated in paragraph 26 above, have reached agreement on the only matters that were in dispute, namely, the appropriate rating on Question 7 - Bowel Management in the Resident Classification Scale set out in Part 1 of Schedule 1 to the Classification Principles, and the appropriate classification level in accordance with Schedule 2 to the Classification Principles, and they have requested the Tribunal to make a decision, pursuant to s 42C of the AAT Act, in accordance with that agreement. The Tribunal's finding, in accordance with that agreement, is that the appropriate rating on that Question is "C". According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, that rating, together with all of the other ratings (which are not in dispute), produces an aggregate score of 61.52. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 61.52 falls within the range of scores (namely, 56.01 - 69.60) for classification level 3. Accordingly, the Tribunal determines, in accordance with the abovementioned agreement, that the appropriate classification level for care recipient 411901 is level 3. The Tribunal notes, however, that in the relevant reviewable decision of 1 July 1999 it was determined that the appropriate classification level was level 6, and that that decision was set aside on reconsideration on 15 October 1999 and a new decision was substituted in which it was determined that the appropriate classification level was level 5. Accordingly, that reviewable decision will be set aside by the Tribunal and a new decision will be substituted therefor that the appropriate classification level for care recipient 411901 is level 3.
Decision
69. For the above reasons the Tribunal:
* pursuant to s 43(1) of the AAT Act, affirms the reviewable decision in respect of care recipient 298936;
* pursuant to s 42C(2) of the AAT Act, sets aside the reviewable decision in respect of care recipient 411901 and, in substitution therefor, decides that the appropriate classification level, in accordance with Schedule 2 to the Classification Principles, is level 3.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of
Associate Professor S D Hotop, Deputy President
Mr R D Fayle, Senior Member
Dr P A Staer, Member
Signed: ..............(sgd V Wong)........................................
Associate
Date/s of Hearing 3 May, 25 June 2001
Date of filing of last Submission 26 March 2002
Date of filing of last document 18 June 2002
Date of Decision 19 June 2002
Counsel for the Applicant Dr J T Schoombee
Solicitor for the Applicant Downings Legal
Counsel for the Respondent Mr M T Ritter
Solicitor for the Respondent Phillips Fox
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2002/479.html