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Brightwater Care Group Inc and Secretary, Department of Health an d Ageing [2003] AATA 124 (7 February 2003)

Last Updated: 27 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 124

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/360, 361, 362, 364, 367, 368, 370, 373, 376

GENERAL ADMINISTRATIVE DIVISION	)
	Re	BRIGHTWATER CARE GROUP INC

Applicant

And

SECRETARY, DEPARTMENT OF HEALTH AND AGEING

Respondent

DECISION

Tribunal

Associate Professor S D Hotop, Deputy President

Dr D Weerasooriya, Member

Date 7 February 2003

Place Perth

Decision

The decision of the Tribunal on each of the applications for review is as follows:

* W1999/360 (Care recipient 187825)

The reconsideration decision of 7 October 1999, setting aside the "reviewable decision" of 1 June 1999 and substituting a new decision, is set aside and the "reviewable decision" of 1 June 1999 is affirmed.

* W1999/361 (Care recipient 393216)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/362 (Care recipient 362793)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/364 (Care recipient 79403)

The "reviewable decision" of about 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/367 (Care recipient 193889)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/368 (Care recipient 53851)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/370 (Care recipient 114387)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/373 (Care recipient 237212)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/376 (Care recipient 160139)

The "reviewable decision" of 1 June 1999, and the reconsideration decision of 7 October 1999 which confirmed that "reviewable decision", are set aside and, in substitution therefor, it is decided that the appropriate classification level, in accordance with the Classification Principles, is classification level 5.

..........(sgd S D Hotop)..........................

Deputy President

CATCHWORDS

HEALTH AND COMMUNITY SERVICES - Aged Care - classification of aged care recipients - applicant (an approved provider) reappraised level of care needed by care recipients - respondent renewed classifications of care recipients - respondent subsequently changed classifications of care recipients - applicant requested reconsideration of respondent's decisions - respondent made decisions on reconsideration - applicant applied to Tribunal for review - whether respondent's decisions to change classifications of care recipients correct - whether respondent's decisions to renew classifications of care recipients based on inaccurate or incorrect reappraisals by applicant or otherwise made incorrectly - material to which Tribunal may, and may not, have regard in reviewing reviewable decisions - whether reviewable decisions 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, 88-1, 88-2, 96-1, Schedule 1

Aged Care Principles - Classification Principles 1997 Parts 4, 5, 9, Schedule 1 Part 1, Schedule 1 Part 2, Schedule 2; Records Principles 1997 s 19.5

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

Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666

The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225

Re Uniting Church Homes - Bethavon Hostel and Secretary, Department of Health and Ageing [2002] AATA 479

REASONS FOR DECISION

7 February 2003

Associate Professor S D Hotop, Deputy President

Dr D Weerasooriya, Member

INTRODUCTION

1. Brightwater Care Group Inc ("the applicant") has applied to the Tribunal, pursuant to s 85-8 of the Aged Care Act 1997 ("the Act"), for a review of nine "reviewable decisions" within the meaning of Act (see s 85-1). Each of those "reviewable decisions" was a decision, made on 1 June 1999 under s 29-1 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 (former) Department of Health and Aged Care (now the Department of Health and Ageing) ("the respondent") under s 85-5 of the Act. Eight of the "reviewable decisions" were confirmed, and the other "reviewable decision" was set aside and a new decision substituted therefor, by the delegate on 7 October 1999 under s 85-5(5) of the Act.

2. At the hearing the applicant was represented by Mr P van Hattem, solicitor, and the respondent was represented by Mr M Ritter of counsel. The Tribunal had before it the statement and documents ("T documents" - T1-T101) 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 (A1-A4) and by the respondent (R1-R9):

* Statement of Marlene Bell dated 28 April 2000 with annexures (comprising 3 volumes) (A1);

* "Brightwater Progress Notes" (comprising 43 pages) (A2);

* bundle of A3 size documents commencing with document entitled "Hierarchic Dementia Scale" (comprising 18 pages) (A3);

* Statement of Toni Michelle Aslett dated 21 February 2001 together with annexures (A4);

* Statements of Meeli Kersti Eriksson dated 5 October 2000 (R1);

* Further Statement of Meeli Kersti Eriksson dated 20 April 2001 (R2);

* Statement of Dianne Scott dated 5 October 2000 (R3);

* Statement of Suzanne Raychel Wallington dated 5 October 2000 (R4);

* Statement of Jennifer Susan Hefford dated 4 October 2000 (R5);

* Statement of Iren Margaret Hunyadi dated 5 October 2000 (R6);

* "RCS Review" report of Dr R Rosewarne dated 23 April 2001, together with brief curriculum vitae and summary of professional activities of Dr Rosewarne (R7);

* document entitled "Revisions to Review prepared by Dr Rosewarne" dated 13 December 2001 (R8);

* The Documentation and Accountability Manual issued by the (former) Department of Health and Family Services (R9).

Oral evidence was given by Marlene Bell and Toni Aslett (who were called by the applicant), and by Meeli Eriksson, Dianne Scott, Suzanne Wallington and Richard Rosewarne (who were called by the respondent).

THE LEGISLATIVE FRAMEWORK

3. Before setting out the factual background and considering 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

...".

Review by the Tribunal is provided for in s 85-8 as follows:

"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."

10. Part 6.3 of the Act sets out the obligations of approved providers to keep certain kinds of records, including the obligation to keep records that will enable claims for payments of subsidy under the Act to be properly verified: see s88-1(1)(a)(i) of the Act. More specifically, s88-2(1) of the Act imposes an obligation on approved providers to "keep records of the kind specified in the Records Principles" made under s96-1(1) of the Act. Section 19.5 of the Records Principles specifies the kinds of records that must be kept by an approved provider pursuant to ss88-2(1) of the Act. These include:

"(a) records of care recipient:

(i) assessment; and

(ii) appraisal for classification; and

(iii) classification;

(b) individual care plans for care recipients;

(c) medical records, progress notes and other clinical records of care recipients;

...

(l) ...".

The Classification Principles

11. 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.

Table 3

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.

Q1 Communication

This question refers to the degree of assistance that the care recipient needs in communicating with staff, relatives and friends and other care recipients, for whatever reason. It measures the additional effort taken by staff to facilitate effective communication where care recipients have:

* hearing loss not remedied by aids (or where there is resistance to the use of an aid);

* visual impairment not remedied by spectacles or contact lenses;

* speech impairments;

* language difficulties (for example, care recipients with little or no English proficiency who do not live in their ethno-specific environment);

* comprehension problems which contribute to communication difficulties.

It also takes into account the effort involved in cleaning and fitting hearing aids, spectacles and lenses.

If the care recipient has no difficulty with communication, record A.

If the care recipient requires assistance with cleaning and fitting of aids, record B.

If facility staff are required to spend additional time listening, speaking slowly and clearly, encouraging the care recipient to communicate or occasionally use non-verbal cues, record C.

If the care recipient requires assistance from facility staff on almost all occasions to communicate by translating or interpreting, or non-verbally - for example, signing, or using communication aids including talking boards or computers, record D.

Ratings Q1 Communication

No difficulty A Requires no assistance

Some difficulty B Requires assistance with cleaning and fitting of aids

Major difficulty C Requires additional time listening, speaking slowly and clearly, encouraging communication or occasionally using non-verbal cues.

Extensive D Requires assistance to communicate by translating difficulty or interpreting;

Requires communication by non-verbal means on almost all occasions.

...

Behaviour

This section, which contains Questions 9 to 14, relates to a care recipient's care needs in addition to support for daily living activities, caused by the care recipient's behaviour.

Ratings are related to staff time and effort in overcoming or reducing the impact of the behavioural problems. Ratings should be based on interventions implemented to prevent or reduce this occurrence. Examples of interventions are vigilant observation, mechanisms to distract the care recipient at times or in circumstances where there is an assessed risk of the behaviour occurring, or special behavioural programs. The interventions should be individually tailored for the care recipient.

The need for the intervention must previously have been determined during assessment and recorded as needing monitoring (for B), or monitoring and supervision (for C or D). Interventions are designed to prevent recurrence or reduce the level of the behaviour.

If the care recipient has no behavioural problems, record A for these questions.

If the resident requires monitoring because of irregular and short-lived occurrences of the behaviour and the interventions are required to be implemented only for these occurrences, record B.

If interventiions are implemented for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.

If supervisiion and intervention are required daily, record D.

In this section:

monitoring means being aware of the circumstances in which the care recipient has engaged in the behaviour in the past and observing the care recipient, to be aware when similar circumstances occur, so that the appropriate intervention may be taken to prevent the recurrence of the behaviour.

supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.

daily means during a twenty four hour period.

An example of monitoring only and therefore a B rating is when a care recipient becomes agitated during stormy weather. The staff would be aware when stormy weather occurred or was forecast and take special care during that time to reassure and calm the care recipient until the stormy weather passed. There is little likelihood of the need for an intervention beyond the duration of the storm.

An example of monitoring for recurrence leading to supervision on less than a daily basis and therefore a C rating is when a care recipient becomes physically aggressive after he or she is visited by a particular relative. The care recipient may need to be supervised after the departure of the relative but, after a few days, the need for supervision would be reduced until it was not required until the next visit (sic).

Q9 Problem wandering or intrusive behaviour

This question relates to the care recipient wandering, absconding or, while wandering, interfering with other people or their belongings. This may include a care recipient who makes repeated attempts to leave the facility or someone who goes uninvited into any areas within or outside the facility where his/her presence is not welcome or is not appropriate - for example, kitchens or other care recipients' rooms. It may also include a care recipient who wanders into areas resulting in staff spending time seeking, finding and guiding the care recipient back to his/her proper location or someone who goes into another room and takes things from drawers or cupboards.

Note that this question does not cover circumstances where a care recipient, through verbal disruption, noisiness or physical aggression, interferes with or disrupts other persons in the facility. These are covered in Questions 10 and 11.

The rating should be based on the effort required to put in place interventions that are taken to prevent potential re-occurrence.

Monitoring the behaviour of all care recipients, as a matter of course, to ensure they do not wander into other care recipients' rooms or interfere with others or others' belongings, would not justify a rating other than A. However, a B, C or D rating would be justified where a care recipient, for example, has been assessed previously as having wandered into other care recipients' rooms causing a disturbance or taking items not belonging to him/her. The rating would, therefore, be appropriate when there is a likelihood of re-occurrence and staff are required to observe the care recipient and to put in place an intervention to prevent him/her from wandering into someone else's room.

A D rating would be appropriate where a care recipient is assessed as being likely to wander or interfere with others or others' belongings at any time of the day or night (this behaviour would have been documented previously) and an intervention is in place to manage this potential occurrence.

If the resident requires monitoring because of occasional, irregular and short-lived occurrences of the behaviour and the interventions are required to be implemented only for those occasional occurrences, record B.

If the interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.

If supervision and intervention are required daily, record D.

In this question:

supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.

daily means during a twenty four hour period.

*Ratings*		Q9	*Problem wandering or intrusive behaviour*
*Not applicable*	A	Does not require monitoring.
*Occasionally*	B	Requires monitoring but not regular supervision.
*Intermittently*	C	Requires monitoring for recurrence and then supervision on less than a daily basis.
*Extensively*	D	Requires monitoring for recurrence and supervision on a daily basis.

Q10 Verbally disruptive or noisy

This question includes abusive language and verbalised threats directed at a care recipient, visitor or member of staff. It also includes a care recipient who indulges in behaviour that causes sufficient noise to disturb other people. That noise may be either, or a combination of, vocal or non-vocal noises such as rattling furniture or other objects.

The ratings should be based on the effort required to put in place interventions that are taken to prevent this potential re-occurrence.

Monitoring the language of all care recipients, as a matter of course, would not justify a rating other than A. However a B, C or D rating would be justified where a care recipient has previously been assessed as having been verbally disruptive, for example, around meal times, requiring staff to ensure that he/she is attended in the manner most likely to avoid or reduce this outcome.

The rating would not be justified merely because all metallic items that can be clanged together have been removed. The rating would be appropriate where a care recipient has previously been assessed as, for example, making significant degrees of noise and the objects used to create that noise are modified by staff intervention to reduce the degree of noise created.

If the care recipient requires monitoring because of occasional, irregular and short-lived occurrences of the behaviour and the interventions are required to be implemented only for these occasional occurrences, record B.

If interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.

If supervision and intervention are required daily, record D.

In this question:

supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.

daily means during a twenty four hour period.

*Ratings*		*Q10*	*Verbally disruptive or noisy*
*Not applicable*	A	Does not require monitoring.
*Occasionally*	B	Requires monitoring but not regular supervision.
*Intermittently*	C	Requires monitoring for recurrence and then supervision on less than a daily basis.
*Extensively*	D	Requires monitoring for recurrence and supervision on a daily basis.

Q11 Physically aggressive

This question includes any physical conduct that is threatening and has the potential to harm a care recipient, visitor or member or staff. It includes, but is not limited to, hitting, pushing, kicking or biting.

The rating should be based on the effort required to put in place interventions that are taken to prevent this potential re-occurrence.

Monitoring the behaviour of all care recipients, as a matter of course, would not justify a rating other than A. However a B, C or D rating would be appropriate where a care recipient has previously been assessed, for example, as having been physically disruptive around bedtime, requiring staff to implement interventions. The rating would also be appropriate if an intervention was put in place to modify the behaviour of the care recipient at times or in circumstances where there is a higher risk of physical aggression.

If interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.

If supervision and intervention are required daily, record D.

In this question:

supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.

daily means during a twenty four hour period.

*Ratings*		*Q11*	*Physically aggressive*
*Not applicable*	A	Does not require monitoring.
*Occasionally*	B	Requires monitoring but not regular supervision.
*Intermittently*	C	Requires monitoring for recurrence and then supervision on less than a daily basis.
*Extensively*	D	Requires monitoring for recurrence and supervision on a daily basis.

Q12 Emotional dependence

This question is limited to the following behaviours:

* active and passive resistance other than physical aggression;

* attention seeking;

* manipulative behaviour;

* withdrawal.

This question does not relate to group activities which are covered in Question 15.

This question applies to one-on-one interventions required to respond to, manage and alleviate demanding behaviours or resistance to other necessary care activities. Such interventions include considerable additional personal attention to calm the care recipient after visitors depart or carefully scheduled activities designed to distract the care recipient when he/she is at particular risk of adopting these behaviours. The rating should be based on the effort required to implement the interventions to prevent the potential re-occurrence of the behaviour. It also applies to one-on-one intervention to manage withdrawal or depression.

If interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.

If supervision and intervention are required daily, record D.

In this question:

supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.

daily means during a twenty four hour period.

*Ratings*		*Q12*	*Emotional dependence*
*Not applicable*	A	Does not require monitoring.
*Occasionally*	B	Requires monitoring but not regular supervision.
*Intermittently*	C	Requires monitoring for recurrence and then supervision on less than a daily basis.
*Extensively*	D	Requires monitoring for recurrence and supervision on a daily basis.

Q13 Danger to self or others

This question covers high risk behaviour which includes behaviour requiring supervision or intervention and strategies to minimise the danger. Examples of such behaviour include unsafe smoking habits, walking without required aids, leaning out of windows, self-mutilation and suicidal tendencies.

This question is about behaviour and does not apply where a care recipient has a medical condition that might lead to injury, for example, through fitting or loss of consciousness. It does not apply to a range of behaviours which might in the longer term be considered as damaging or health reducing such as smoking generally or non-compliance with a specialised diet. It applies where there is an imminent risk of harm.

This question excludes acts of physical aggression that are covered in Question 11.

The rating should be based on the effort required to implement interventions to prevent this potential occurrence.

Monitoring the behaviour of all care recipients, as a matter of course, would not justify a rating other than A. However a B, C or D rating would be appropriate where a care recipient has previously been assessed as, for example, endangering themselves or others requiring staff to supervise the care recipient to identify when this may re-occur and then take preventive action.

If interventions are implemented intermittently, for a period of time and then relaxed, but monitoring and supervision for recurrence are required, record C.

If supervision and intervention are required daily, record D.

In this question:

supervision means ensuring that specific situations or triggers which are likely to give rise to the behaviour do not occur, or are managed in ways to minimise the likelihood of occurrence.

daily means during a twenty four hour period.

*Ratings*		*Q13*	*Danger to self or others*
*Not applicable*	A	Does not require monitoring.
*Occasionally*	B	Requires monitoring but not regular supervision.
*Intermittently*	C	Requires monitoring for recurrence and then supervision on less than a daily basis.
*Extensively*	D	Requires monitoring for recurrence and supervision on a daily basis.

...

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 Column 2 Column 3

Item Aggregate figure range Classification level

1 0 - 10.60 Classification level 8

2 10.61 - 28.90 Classification level 7

3 28.91 - 39.80 Classification level 6

4 39.81 - 50.00 Classification level 5

5 50.01 - 56.00 Classification level 4

6 56.01 - 69.60 Classification level 3

7 69.61 - 81.00 Classification level 2

8 81.01+ 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

12. Chapter 5 of The Documentation and Accountability Manual (Exhibit R9), 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 Manual contains the following relevant material:

5. CLASSIFICATION APPRAISAL

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.

* 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 (sic) 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.

...

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 or 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.

...

5.10 APPEALS

If an organisation is dissatisfied with a review, it may appeal for reconsideration of that review decision.

...

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 the 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;

* 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.

...

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.

...

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

13. The relevant factual background to the present applications for review, as appears from the T documents, is as follows:

14. A Departmental form entitled "Aged Care - Resident Classification Scale - Application for Classification" in respect of care recipient 187825 was completed by Marlene Bell, Documentation Co-ordinator, Brightwater Care Group, 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 D was entered in the boxes numbered 9, 10, 11 and 19. The form was signed by Ms Bell and dated "6/4/99", and was lodged with the (former) Department of Health and Aged Care ("the Department") on 8 April 1999. (T4; T2, p 12)

15. A similar form in respect of care recipient 393216 was completed by Ms Bell 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, including, relevantly, a "score" of D in the box numbered 19. The form was signed by Ms Bell and dated "26/3/99", and was lodged with the Department on 29 March 1999. (T5; T2, p 12)

16. A similar form in respect of care recipient 362793 was completed by Ms Bell 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, including, relevantly, a "score" of D in the boxes numbered 1, 13 and 19. The form was signed by Ms Bell and dated "18/12/98", and was lodged with the Department on 22 December 1998. (T6; T2, p 12)

17. A similar form in respect of care recipient 79403 was completed by Ms Bell 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, including, relevantly, a "score" of D in the boxes numbered 1 and 19. The form was signed by Ms Bell and dated "30/12/98", and was lodged with the Department on 5 January 1999. (T8; T2, p 12)

18. A similar form in respect of care recipient 193889 was completed by Ms Bell 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, including, relevantly, a "score" of D in the boxes numbered 1, 13 and 19. The form was signed by Ms Bell and dated "21/12/98", and was lodged with the Department on 23 December 1998. (T11; T2, p 12)

19. A similar form in respect of care recipient 53851 was completed by Ms Bell 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, including, relevantly, a "score" of D in the boxes numbered 1, 12 and 19. The form was signed by Ms Bell and dated "2/2/99", and was lodged with the Department on 3 February 1999. (T12; T2, p 12)

20. A similar form in respect of care recipient 114387 was completed by Ms Bell 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, including, relevantly, a "score" of D in the boxes numbered 1 and 19. The form was signed by Ms Bell and dated "2/2/99", and was lodged with the Department on 3 February 1999. (T14; T2, p 12)

21. A similar form in respect of care recipient 237212 was completed by Ms Bell 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, including, relevantly, a "score" of D in the boxes numbered 1, 12 and 19. The form was signed by Ms Bell and dated "19/1/99", and was lodged with the Department on 21 January 1999. (T17; T2, p 12)

22. A similar form in respect of care recipient 160139 was completed by Ms Bell 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, including, relevantly, a "score" of B in the box numbered 5, a "score" of D in the box numbered 9, a score of B in the box numbered 13, and a "score" of C in the box numbered 19. The form was signed by Ms Bell and dated "16/3/99", and was lodged with the Department on 18 March 1999. (T20; T2, p 12)

23. On 31 May 1999 and 1 June 1999 Barbara May, Linda Mack, Ann Wilson and Lynn Jones, Commonwealth Nursing Officers, visited the applicant's aged care facility at Inglewood for the purpose of reviewing the existing classifications (under the Resident Classification Scale in the Classification Principles) regarding various care recipients who resided at that facility, including all of the abovementioned care recipients.

24. In the case of care recipient 187825, Ms May decided on 1 June 1999 to change some of the rating "scores" entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 14 above. Relevantly, Ms May changed Ms Bell's rating "score" of D in each of the boxes numbered 9, 10 and 11 to a rating "score" of C in each box, and Ms Bell's rating "score" of D in the box numbered 19 to a rating "score" of B. Those changes in the rating "scores" resulted in a change in the classification level of care recipient 187825 from level 4 to level 5.. (T23, T24)

25. In the case of care recipient 393216 Ms May decided a 1 June 1999 to change one of the rating "scores" entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 15 above. Specifically, Ms May changed Ms Bell's rating "score" of D in the box numbered 19 to a rating "score" of C. That rating "score" change resulted in a change in the classification level of care recipient 393216 from level 1 to level 2. (T25, T26)

26. In the case of care recipient 362793, Ms Wilson decided on 1 June 1999 to change some of the rating "scores" entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 16 above. Relevantly, Ms Wilson changed Ms Bell's rating "score" of D in each of the boxes numbered 1, 13 and 19 to rating "scores" of C in the box numbered 1, A in the box numbered 13, and B in the box numbered 19. Those changes in the rating "scores" resulted in a change in the classification level of care recipient 362793 from level 1 to level 2. (T27, T28)

27. In the case of care recipient 79403, Ms Jones decided on or about 1 June 1999 to change some of the rating "scores" entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 17 above. Relevantly, Ms Jones changed Ms Bell's rating "score" of D in each of the boxes numbered 1 and 19 to a rating "score" of C in each case. Those changes in the rating "scores" resulted in a change in the classification level of care recipient 79403 from level 1 to level 2. (T31, T32)

28. In the case of care recipient 193889, Ms Wilson decided on 1 June 1999 to change some of the rating "scores" entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 18 above. Relevantly, Ms Wilson changed Ms Bell's rating "score" of D in each of the boxes numbered 1, 13 and 19 to rating "scores" of C in the box numbered 1, and B in each of the boxes numbered 13 and 19. Those changes in the rating "scores" resulted in a change in the classification level of care recipient 193889 from level 1 to level 2.. (T37, T38)

29. In the case of care recipient 53851, Ms Wilson decided on 1 June 1999 to change some of the rating "scores" entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 19 above. Relevantly, Ms Wilson changed Ms Bell's rating "score" of D in each of the boxes numbered 1, 12 and 19 to rating "scores" of C in each of the boxes numbered 1 and 19, and A in the box numbered 12. Those changes in the rating "scores" resulted in a change in the classification level of care recipient 53851 from level 1 to level 2. (T39, T40)

30. In the case of care recipient 114387, Ms May decided on 1 June 1999 to change some of the rating "scores" entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 20 above. Relevantly, Ms May changed Ms Bell's rating "score" of D in each of the boxes numbered 1 and 19 to a rating "score" of C in each case. Those changes in the rating "scores" resulted in a change in the classification level of care recipient 114387 from level 1 to level 2. (T43, T44)

31. In the case of care recipient 237212, Ms Mack decided on 1 June 1999 to change some of the rating "scores" entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 21 above. Relevantly, Ms Mack changed Ms Bell's rating "score" of D in each of the boxes numbered 1, 12 and 19 to rating "scores" of C in each of the boxes numbered 1 and 19, and A in the box numbered 12. Those changes in the rating "scores" resulted in a change in the classification level of care recipient 237212 from level 1 to level 2. (T49, T50)

32. In the case of care recipient 160139, Ms Wilson decided on 1 June 1999 to change some of the rating "scores" entered by Ms Bell in the 21 boxes set out in section 1 of the form referred to in paragraph 22 above. Relevantly, Ms Wilson changes Ms Bell's rating "score" of B in the box numbered 5 to a rating "score" of A, her rating "score" of D in the box numbered 9 to a rating "score" of B, her rating "score" of B in the box numbered 13 to a rating "score" of A , and her rating "score" of C in the box numbered 19 to a rating "score" of B. Those changes in the rating "scores" resulted in a change in the classification level of care recipient 160139 from level 4 to level 6. (T55, T56)

33. By letter dated 4 June 1999 Ms Jones formally notified the applicant of the changes in the classification levels of various care recipients, including the abovementioned care recipients, which resulted from the reviews undertaken by Ms May, Ms Mack, Ms Wilson and herself on 31 May 1999 and 1 June 1999. (T57)

34. By letter dated 24 June 1999 the applicant requested the respondent to reconsider the decisions to change the classification levels of, inter alios, the abovementioned care recipients. (T58)

35. On 25 and 26 August 1999 Dianne Scott, Iren Hunyadi, Meeli Eriksson and Suzanne Wallington, Commonwealth Nursing Officers, visited the applicant's Inglewood aged care facility for the purpose of evaluating the abovementioned changes in the classification levels of the relevant care recipients from an examination of the materials on which those changes were based, and making recommendations to the respondent's delegate regarding the confirming, varying or setting aside of those changes in classification levels.

36. In respect of care recipient 187825, Ms Eriksson made a report, dated 24 September 1999, in which she recommended that the following "ratings" were appropriate in relation to the relevant questions in the Resident Classification Scale ("RCS") in the Classification Principles:

Q9 (Problem wandering or intrusive behaviour) B

Q10 (Verbally disruptive or noisy) C

Q11 (Physically aggressive) C

Q19 (Therapy) A.

Having regard to those and the other RCS ratings, Ms Eriksson recommended that the delegate set aside Ms May's decision of 1 June 1999 which changed the classification level from level 4 to level 5, and substitute a new decision that the appropriate classification level is level 6. (T63)

37. In respect of care recipient 393216, Ms Hunyadi made a report, dated 22 September 1999, in which she recommended that the following "rating" was appropriate in relation to the relevant RCS question in the Classification Principles:

Q19 (Therapy) A.

Having regard to that rating, and the other RCS ratings, Ms Hunyadi recommended that the delegate confirm Ms May's decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T64)

38. In respect of care recipient 362793, Ms Eriksson made a report, dated 24 September 1999, in which she recommended that the following "ratings" were appropriate in relation to the relevant RCS questions in the Classification Principles:

Q1 (Communication) C

Q13 (Danger to self or others) A

Q19 (Therapy) B.

Having regard to those and the other RCS ratings, Ms Eriksson recommended that the delegate confirm Ms Wilson's decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T65)

39. In respect of care recipient 79403, Ms Hunyadi made a report, dated 22 September 1999, in which she recommended that the following "ratings" were appropriate in relation to the relevant RCS questions in the Classification Principles:

Q1 (Communication) C

Q19 (Therapy) C.

Having regard to those and the other RCS ratings, Ms Eriksson recommended that the delegate confirm Ms Jones' decision of about 1 June 1999 which changed the classification level from level 1 to level 2. (T67)

40. In respect of care recipient 193889, Ms Scott made a report, dated 3 September 1999, in which she recommended that the following "ratings" were appropriate in relation to the relevant RCS questions in the Classification Principles:

Q1 (Communication) C

Q13 (Danger to self or others) B

Q19 (Therapy) B.

Having regard to those and the other RCS ratings, Ms Scott recommended that the delegate confirm Ms Wilson's decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T70)

41. In respect of care recipient 53851, Ms Eriksson made a report, dated 24 September 1999, in which she recommended that the following "ratings" were appropriate in relation to the relevant RCS questions in the Classification Principles:

Q1 (Communication) C

Q12 (Emotional dependence) A

Q19 (Therapy) B.

42. In respect of care recipient 114387, Ms Scott made a report, dated 3 September 1999, in which she recommended that the following "ratings" were appropriate in relation to the relevant RCS questions in the Classification Principles:

Q1 (Communication) C

Q19 (Therapy) C.

Having regard to those and the other RCS ratings, Ms Scott recommended that the delegate confirm Ms May's decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T73)

43. In respect of care recipient 237212, Ms Scott made a report, dated 3 September 1999, in which she recommended that the following "ratings" were appropriate in relation to the relevant RCS questions in the Classification Principles:

Q1 (Communication) C

Q12 (Emotional dependence) A

Q19 (Therapy) B.

Having regard to those and the other RCS ratings, Ms Scott recommended that the delegate confirm Ms Mack's decision of 1 June 1999 which changed the classification level from level 1 to level 2. (T76)

44. In respect of care recipient 160139, Ms Wallington made a report, dated 31 August 1999, in which she recommended that the following "ratings" were appropriate in relation to the relevant RCS questions in the Classification Principles:

Q5 (Toileting) A

Q9 (Problem wandering or intrustive behaviour) B

Q13 (Danger to self or others) A

Q19 (Therapy) B.

Having regard to those and the other RCS ratings, Ms Wallington recommended that the delegate confirm Ms Wilson's decision of 1 June 1999 which changed the classification level from level 4 to level 6. (T79)

45. By Departmental Minute dated 7 October 1999 Ms A McNeill referred the abovementioned reports and recommendedations of Ms Eriksson, Ms Hunyadi, Ms Scott and Ms Wallington to Ms J Hefford, a delegate of the respondent, for decision. (T80)

46. On 7 October 1999 Ms Hefford made a decision in accordance with each of the abovementioned recommendations. (T83, T84, T85, T87, T90, T91, T93, T96, T99)

47. By letter dated 7 October 1999 Ms Hefford formally notified the applicant of her decisions of that date, and of the respective dates of effect of those decisions. (T81)

48. On 8 November 1999 the applicant lodged with the Tribunal applications for review of Ms Hefford's decisions of 7 October 1999. (T2, pp3-7). [The Tribunal notes that, in terms of s85-8 of the Act, the "reviewable decisions" in this matter are not Ms Hefford's decisions of 7 October 1999 (although the abovementioned applications for review could not validly be lodged with the Tribunal until those decisions had been made), but rather the decisions of Ms May, Ms Wilson, Ms Jones and Ms Mack (referred to in paragraphs 24-32 above) which changed the classification levels of the relevant care recipients pursuant to s29-1(1) of the Act.]

THE MATTERS FOR THE TRIBUNAL'S DETERMINATION

49. The matters for the Tribunal's determination are, in general terms, the appropriate ratings on the relevant RCS questions in the Classification Principles in respect of each of the abovementioned care recipients, and the resulting appropriate classification level, in accordance with Schedule 2 to the Classification Principles, of each care recipient. Two such matters have, however, been the subjects of concessions by the parties since the lodgment with the Tribunal of the relevant applications for review. As regards care recipient 53851, the respondent has conceded on the basis of the RCS Review conducted by Dr Rosewarne (Exhibit R7), that the appropriate rating on RCS Q1 (Communication) is D (as contended by the applicant): see para 58 of the respondent's Statement of Facts and Contentions filed on 20 June 2001. As regards care recipient 160139, during the hearing Mr van Hattem (for the applicant) acknowledged that the matter of the appropriate rating on RCS Q5 (Toileting) had not been mentioned in the applicant's Statement of Facts and Contentions filed on 28 May 2001 but he, nevertheless, initially sought to agitate that matter. Mr Ritter (for the respondent) objected to that course on the ground that the respondent would be prejudiced thereby and submitted that, if the abovementioned matter were to be agitated, a resumed hearing should be held at a future date for that purpose. Mr van Hattem subsequently informed the Tribunal that the applicant no longer wished to agitate that matter and he formally conceded that the appropriate rating on RCS Q5 (Toileting) in respect of care recipient 160139 is A (as contended by the respondent : see Transcript, p126.

50. The Tribunal regards the abovementioned concession by the respondent as rightly made and, accordingly, finds that the appropriate rating on RCS Q1 (Communication), in respect of care recipient 53851, is D. As regards the abovementioned belated concession by the applicant, the Tribunal is, in the circumstances, prepared to accept that concession and, accordingly, finds that the appropriate rating on RCS Q5 (Toileting), in respect of care recipient 160139, is A..

51. The remaining specific matters for the Tribunal's determination are, therefore, as follows:

* care recipient 187825 - the appropriate ratings on RCS Questions 9, 10, 11 and 19;

* care recipient 393216 - the appropriate rating on RCS Question 19;

* care recipient 362793 - the appropriate ratings on RCS Questions 1, 13 and 19;

* care recipient 79403 - the appropriate ratings on RCS Questions 1 and 19;

* care recipient 193889 - the appropriate ratings on RCS Questions 1, 13 and 19;

* care recipient 53851 - the appropriate ratings on RCS Questions 12 and 19;

* care recipient 114387 - the appropriate ratings on RCS Questions 1 and 19;

* care recipient 237212 - the appropriate ratings on RCS Questions 1, 12 and 19; and

* care recipient 160139 - the appropriate ratings on RCS Questions 9, 13 and 19.

The ultimate matter for the Tribunal's determination is the appropriate classification level, in accordance with Part 2 of Schedule 1, and Schedule 2, to the Classification Principles, of each of the abovementioned care recipients, on the basis of the appropriate ratings on all RCS questions in respect of each care recipient.

A PRELIMINARY QUESTION

52. In order to consider and determine the abovementioned matters the Tribunal must first consider and determine a question, the answer to which was a matter of dispute between the parties, namely, what material must the Tribunal have regard to - and what material must the Tribunal not have regard to - for the purpose of determining those matters? Mr Ritter (for the respondent) contended that the material to which the Tribunal may properly have regard is limited, in the case of each care recipient, to relevant material which is in documentary form and which was in existence at the date of the applicant's reappraisal of the level of care required by the relevant care recipient. Mr van Hattem (for the applicant) contended that the material to which the Tribunal may properly have regard, in the case of each recipient, is not limited in the ways submitted by Mr Ritter but, instead, includes all relevant material, whether documentary, oral or otherwise in nature, which was in existence at any material time prior to the Tribunal's decision.

53. The same question was agitated before, and determined by, the Tribunal in Re Uniting Church Homes - Bethavon Hostel and Secretary, Department of Health and Ageing [2002] AATA 479. In the present case the Tribunal proposes to adopt the approach and reasoning of the Tribunal in Re Uniting Church Homes - Bethavon Hostel (at paras 29-39) for the purpose of determining this question.

54. It is necessary, in order to determine this question, to refer to certain provisions of the Act whereby the decisions under review in this matter may be identified and the power to make those decisions is conferred. The decisions under review in this matter are, in terms of s85-8 of the Act, the "reviewable decisions" (as referred to in, relevantly, item 31 in the table in s85-1 of the Act) that have been confirmed or set aside under (relevantly) s85-5 - namely, the decisions of Ms May, Ms Wilson, Ms Jones and Ms Mack (referred to in paragraphs 24-32 above) which changed the classification levels of the relevant care recipients under s29-1 (1) of the Act, each of which decisions has been reconsidered under s85-5 of the Act and, in the case of the decision regarding care recipient 187825, set aside, and in the case of the decisions regarding the other care recipients, confirmed, under s85-5(5). The decisions made on reconsideration pursuant to s85-5(5) of the Act are not themselves "reviewable decisions", although their making is a prerequisite for Tribunal review of the "reviewable decisions" made under s29-1(1). Had the legislature intended that the decision to be reviewable by the Tribunal be the decision made by the Secretary (or delegate) under s85-4(4) or s85-5(5), rather than the decision made by the Secretary (or delegate) under s29-1(1), it would have been a very simple matter expressly so to provide in s85-8 of the Act (cf, eg, ss60(1), 62(1) and 64(1) of the Safety, Rehabilitation and Compensation Act 1988; s175 of the Veterans' Entitlements Act 1986; s179 of the Social Security (Administration) Act 1999). Accordingly, the critical provision of the Act for present purposes is s29-1 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.

...

(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 which changed classification levels under s29-1(1) of the Act was made on the basis that the relevant Commonwealth Nursing Officer (acting as a delegate of the respondent) was satisfied that the existing classification was, in terms of s29-1(1)(a), "based on an incorrect or inaccurate ... reappraisal" under s28-2 of the Act.

55. Section 29-1(3) prescribes two categories of material which must be examined in the review process which is required to be undertaken before a classification can be changed under s29-1(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 s29-1(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.

56. The category of material referred to in para (a) of s29-1(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.

57. The content of the category of material referred to in para (b) of s29-1(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. Mr Ritter (for the respondent) submitted that in the Classification Principles there is no specification of material or information for the purposes of s29-1(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.

58. 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 s29-1(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 s15AB of the Acts Interpretation Act 1901) it was stated (at p 54) 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.

59. 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) in the Classification Principles (para (b)). The Tribunal notes that in the Classification Principles specific mention is made of 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 Guidelines for the interpretation of resident classification scale questions in Part 1 of Schedule 1 to the Classification Principles set out in paragraph 11 above.

The Tribunal notes, furthermore, that RCS Question 19 (Therapy) in Part 1 of Schedule 1 to the Classification Principles, which is relevant for present purposes, mentions specifically the following kinds of material or information:

* "personalised therapy plan"; "therapy program".

60. 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 59 above.

61. 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.

62. 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, is regarded as standing "in the shoes" (per Smithers J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 671) 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."

63. Having regard to the abovementioned principles the Tribunal finds that, in reviewing the relevant decisions which changed the classifications of the relevant care recipients in this case 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. The dates when the "Application for Classification" forms in respect of the relevant care recipients were lodged by the applicant with the Department are set out in the T documents (T2, p 12) and in section 5 of each of those forms it appears that administrative action was taken in response to the lodgment of each form on the date when that form was lodged with the Department (see T4, T5, T6, T8, T11, T12, T14, T17 and T20). The Tribunal infers therefrom, and, in the absence of any evidence or indication to the contrary, finds, that the relevant decision to renew the classification of each care recipient under s 28-1(1) of the Act was made by a delegate of the respondent on the date when the relevant "Application for Classification" form (on the basis of annual reappraisal) was lodged by the applicant with the Department. The relevant dates are specified in paragraphs 14-22 above.

THE APPLICANT'S CASE

64. The applicant's case comprised the oral evidence of Marlene Bell and Toni Michelle Aslett, their written statements and annexures thereto (Exhibits A1 and A4, respectively), and other documentary exhibits (A2 and A3).

The evidence of Marlene Bell

65. The contents of Ms Bell's Statement, dated 28 April 2000, are as follows:

"1 I am employed by Brightwater Care Group Inc (prior to October 1997 known as Homes of Peace Inc) as the Acting Clinical Nurse Consultant/ Documentation Coordinator at its nursing home in Inglewood.

2 I was first employed by Brightwater in June 1974 as a registered nurse, working day, night and evening shifts. In October 1984 I was appointed to a Charge Nurse position at Brightwater Inglewood, Margaret Edis Unit, a 70 bed unit, mainly for elderly ladies. As charge nurse I was responsible for, among other things, coordinating the unit, residents' care, staffing rosters, and budgets.

3 In June 1989 I was appointed by Brightwater as a Clinical Nurse Level 2 in line with the changes to the Nursing Career structure. This position was essentially the same as my previous position. I continued to work in the ward area at Brightwater Inglewood, Margaret Edis Unit but relieved the Clinical Nurse Consultants/Documentation Coordinators during their annual leave.

4 In January 1997 I was appointed Acting Nurse Consultant and Documentation Coordinator for the whole of the Brightwater Inglewood site (excluding the young disabled unit), which then comprised 3 aged care units housing 188 residents.

5 I have updated my clinical skills during my career through attending and completing various courses and seminars. I have also attended education sessions relating to the Resident Classification Scale, organised by the Commonwealth Department of Aged Care. These were specifically designed to provide the necessary information and skills to conduct an assessment of documentation in accordance with the Resident Classification Scale, under the Aged Care Act 1997 and make subsequent application to the Commonwealth, on behalf of Brightwater, for classification of Brightwater's residents.

6 In my position as Acting Clinical Nurse Consultant at Brightwater I give advice to clinical staff on complex clinical issues. As Acting Documentation Coordinator I assess the relevant material in each resident's medical file and prepare Brightwater's application to the Commonweatlh for classification of the residents.

7 Annexed to this Statement are case studies for each of the residents whose classifications are under review, namely:

...

8 Each of the above residents is known to me through my employment at Brightwater. I worked ... as a Documentation Coordinator in relation to all of them.

9 I assessed the documentation provided by the unit staff and prepared the applications to the Commonwealth Department of Aged Care based on this documentation.

10 The annexed case studies were prepared in consultation with me by Vicki Buchanan, and Lynette Leslie who are employed by Brightwater as the Executive Project Officer and Health Information Coordinator respectively. I have read each case study, including the documents attached to each, and in my opinion each case study is a true and accurate record of the status of each resident as at the dates and in relation to the matters set out."

66. In her brief oral evidence-in-chief Ms Bell told the Tribunal that, since the abovementioned Statement was prepared, she had retired and was no longer employed by the applicant. She verified the contents of her Statement and the "case studies" annexed thereto, and confirmed that the documentary attachments to those case studies were extracted from the applicant's records regarding the relevant care recipients. Ms Bell was shown 2 bundles of documents (which were subsequently marked as Exhibit A2 and Exhibit A3) and she also confirmed that those documents were extracted from the applicant's records regarding the care recipients referred to therein.

67. In cross-examination Ms Bell was questioned at length and in detail about the contents of the abovementioned case studies regarding the relevant care recipients. Rather than set out that evidence here, suffice it to say that the Tribunal has had regard to it (and, of course, to the contents of the case studies and attachments) for the purpose of making its own findings in relation to the appropriate ratings on the relevant RCS questions in respect of the relevant care recipients. Likewise, the Tribunal has also had regard to Ms Bell's oral evidence in re-examination for that purpose.

The evidence of Toni Michelle Aslett

68. The contents of Ms Aslett's Statement, dated 21 February 2001, are as follows:

"1 Introduction

1.1 I am employed by Brightwater Care Group (Inc) (Brightwater) as Director, Care Services. Prior to October 1997 Brightwater was known as Homes of Peace (Inc.).

1.2 I was first employed by Brightwater as a Director, Residential and Community Services in May 1996.

2 Qualifications and Professional Education

2.1 Headings 2 and 3 contain a brief overview of my qualifications and experience. A more detailed overview is provided in my Curriculum Vitae which is attached and marked `TMA1'.. I have experience in the aged care field, through my employment at Brightwater (see heading 4 below and page 1 of TMA1), recent professional education (see TMA1 page 7) and the experience which I gained throughout my career in health services generally.

2.2 The aspects of this statement which deal with dementia, behaviour, therapeutic environment in dementia and therapy are drawn from my own knowledge and my discussions with Virginia Moore. Brightwater employs Mrs Moore as our Dementia and Allied Health Services Consultant. Mrs Moore qualified as an Occupational Therapist in 1966 and was an executive member of the Occupational Therapist Association of WA for three years from 1984. In 1999 she was awarded the Churchill Fellowship to train in Dementia Care Mapping at Bradford University in the United Kingdom and to investigate the use of technology with people with dementia in Scandinavia. Mrs Moore has been a board member of the Alzheimer's Association in WA since 1997 and she has held the role of Vice President from October 1997. Mrs Moore is a Board member of Alzheimer's Australia and also on the Board of Alzheimer's Association Research Foundation. In March 2001 Mrs Moore will return to the United Kingdom to complete the advanced course of dementia care mapping which will mean that she is not available to give evidence in these proceedings (Dementia care mapping is a process which allows carers to identify whether their interventions create well-being or ill-being in residents who are unable to explain these effects to their carers).

2.3 1998 ETRS Business Management Services

Aged Care Quality Auditor Training Course

Successfully completed Certificate

2.4 1994 Curtin University of Technology - Western Australia
Graduate Diploma in Business
Cornell University, Ithaca - New York, USA
Health Executives Development Program
2.5 1988 University of Western Australia and Department of Executive Personnel
Executive Development Program No 7, Senior Executive Service
2.6 1977 Western Australian Institute of Technology (Now Curtin University of Technology)
Bachelor of Applied Science (Occupational Therapy)
3 Employment History
3.1 May 1996 - Present
Director, Care Services (previously titled Director, Residential and Community Services)
Brightwater, Western Australia (previously called The Homes of Peace (Inc.))
3.2 April 1995 - April 1996
Director, Ambulatory and Allied Health Services
Austin and Repatriation Medical Centre, Victoria
3.3 July 1989 - April 1995
Director of Allied Health Services
Austin Hospital, Victoria
3.4 April 1988 - June 1989
Acting Allied Health Coordinator
Armadale Kelmscott Health Service
Health Department of Western Australia
3.5 January 1986 - March 1988
Acting Assistant Principal Occupational Therapist
Health Department of Western Australia
3.6 January 1985 - December 1985
Senior Occupational Therapist
Albany Regional Hospital
Health Department of Western Australia
3.7 January 1982 - April 1984
Senior Occupational Therapist
Royal Perth Rehabilitation Hospital Western Australia
3.8 September 1980 - December 1981
Occupational Therapist Western Australia
Independent Living Centre, Western Australia
3.9 October 1979 - June 1980
Occupational Therapist
Queen Mary Hospital, Hong Kong
3.10 May 1977 - September 1979
Occupational Therapist
Royal Perth Hospital, Western Australia
4 Current Role Description
4.1 As Director, Care Services at Brightwater my key responsibilities are to:
(a) provide leadership to:
* Managers, Residential Aged Care;
* Manager Allied Health and Dementia Consulting Service;
* Manager, At Home Services;
* Manager Human Resources; and
* Quality Coordinator and Health Information Coordinator.
(b) be accountable for the proper stewardship of all aspects of residential and community services including development of clinical programs across all 11 Aged Care facilities and at 120 community places.
(c) be responsible for the budget (in excess of $30 million) and resource management (over 770 staff and 770 residential and community places) in all residential and community service areas including the achievement of operating surplus.
(d) ensure Brightwater facilities achieve aged care accreditation via a commitment to total quality management principles and achieving a continuous improvement culture.
4.2 I am also responsible for the complaints handling system and providing leadership in the aged care sector generally.
5 Overview of Brightwater
5.1 Brightwater is one of Western Australia's best-known and largest providers of quality care. Established in 1901, it is a not-for-profit organisation with 1,100 employees who care for aged and younger people with high support requirements. This care is delivered in 18 residential care facilities across the Perth metropolitan area and in 120 peoples' homes in the community.
5.2 The Brightwater mission statement is:
to enrich the lives of elderly and young people with support needs by providing specialised and continuing care services, enabling them to achieve their desired quality of life.
5.3 The Brightwater Vision Statement is:
to be a world leader in providing residential and community based care, including specialised support care for the elderly and people with disabilities.
5.4 The Brightwater Philosophy is:
based on person centred approach or personhood. Personhood is sustained or undermined by the social environment within which a person operates. Creating positive, enabling, social environments is the fundamental role of each worker in Brightwater.
5.5 Brightwater is highly regarded in the aged care sector for its specialist facilities and services. These include specialist dementia programs and services for complex medical, social, rehabilitation, behavioural and palliative care, as well as much needed specialist respite services.
6 Inglewood
6.1 One of our specialist facilities is Inglewood. Each of the residents the subject of the current applications resided at Inglewood at the time of the original RCS audit. Inglewood, like all of our specialist facilities, receives additional funding from the Health Department of Western Austral to take `additional need' residents that other nursing homes may find difficult to manage. Additional need residents are residents with complex medical and psychosocial needs, and/or challenging behaviour requiring specialist nursing and allied health care. In relation to the Inglewood site, allied health care refers to all care provided which is not medical or nursing care. The allied health fields discussed in this statement are occupational therapy, speech pathology and physiotherapy. The funding which Brightwater receives from the State is separately audited by the State on a bi-annual basis and must be used to provide additional specialist support, in particular allied health care.
6.2 Our Inglewood facility is currently undergoing major re-development. At the time of the original RCS audit, it had 196 aged care beds comprising:
* 44 special dementia beds at a special facility within the Inglewood site, known as `The Village';
* 8 beds for people with tracheostomy. These residents have undergone an operation which allows them to breathe and swallow through a hole in their throat which may be used to manage secretions. These residents require specialist nursing and allied health care;
* 15 young people (mainly with acquired brain injury) who have additional needs and who are not in specialist young beds (because of limited state government funding); and
* 129 beds for aged people with additional needs, with complex medical and psychosocial needs, and/or challenging behaviour requiring specialist nursing and allied health care;
6.3 The Inglewood site also houses:
* respite programs for people with dementia and those with additional care needs;
* a seating clinic providing specialised posture seating for all Brightwater clients across all services; and
* administration support staff and other services located at Inglewood, providing services to all Brightwater facilities.
Attached and marked `TMA2' is a map which outlines the layout of the Inglewood facility at the time of the original RCS audit.
6.4 Staff specifically allocated to the Inglewood aged care program at the time of the original RCS audit were as follows:
* allied health staff - (physiotherapist, occupational therapist, speech pathologists, social worker, therapy assistants) 16 employees or 906 hours per fortnight;
* care workers - 32 employees or 2,500 hours per fortnight;
* enrolled nurses - 33 employees or 2,177 hours per fortnight;
* hotel services staff - 18 employees or 1,244 hours per fortnight; and
* Registered Nurses - 25 employees or 1,852 hours per fortnight.
7 Dementia
7.1 Dementia is a term used to describe the symptoms of a large group of illnesses, which cause a progressive decline in a person's mental functioning. It is a broad term, which describes the loss of memory, intellect, rationality, social skills and normal emotional reactions. Most people with dementia are older, but it is important to remember that older people do not normally get dementia. It is not a normal part of aging. Dementia can happen to anybody but is most common after the age of 65 years. People in their 40s and 50s can also have dementia.
7.2 People with dementia differ in the pattern of problems they have, and the speed with which their abilities deteriorate. Their abilities may change from day to day, or even within the same day. What is certain is that the person's abilities will deteriorate, sometimes rapidly over a few months, in other cases, more slowly over a number of years.
Phases of the disease
7.3 Some of the features of the disease are commonly classified into three stages or phases, It is important to remember that not all of these features will be present in every person, nor will every person go through every stage.
Early dementia
7.4 Often this phase is only apparent with hindsight. At the time it may be missed, or put down to old age or to over work. The onset is often very gradual and it is impossible to identify the exact time it began. The person may:
* appear more apathetic;
* lose interest in hobbies and activities;
* be unwilling to try new things;
* be unwilling to adapt to change;
* show poor judgement and make poor decisions;
* be slower to grasp complex ideas and take longer with routine jobs;
* blame others for `stealing' lost items;
* become more self-centred and less concerned with others feelings;
* become more forgetful of details of recent events;
* become more likely to repat themselves or lose the thread of the conversation;
* be more irritable or upset if they fail at something; or
* have difficulty handling money.
Moderate dementia
7.5 Here the problems are more apparent and disabling. The person may:
* be very forgetful of recent events; memory for the distant past generally seems better, but some details may be lost or confused;
* be confused regarding time and place;
* become lost if away from familiar surroundings;
* forget names of family or friends or confuse one family member with another;
* forget saucepans and kettles are on the stove; may leave the gas unlit;
* wander around the streets, perhaps at night, becoming lost;
* become inappropriate, for example going outdoors in nightwear;
* see or hear things that are not there;
* become very repetitive;
* be neglectful of hygiene or eating; or
* become angry or upset or distressed through frustration.
Severe dementia
7.6 Here the person is severely disabled and needs total care. It is the final stage. The person in this phase of dementia is usually referred to a high care facility. The person may:
* be unable to remember, even after a few minutes, that they had, for example, a meal;
* lose their ability to understand the use of speech;
* be incontinent;
* show no recognition of friends and family;
* need help with eating, washing and bathing, using the toilet, dressing;
* fail to recognise everyday objects;
* be disturbed at night;
* be restless, perhaps looking for long dead relatives;
* be aggressive, especially when feeling threatened or closed in;
* have difficulty walking, eventually perhaps becoming confined to a wheelchair; or
* have uncontrolled movements.
7.7 Immobility will become permanent, and in the final weeks or months the person will become bedridden.
7.8 Some abilities will remain, although many are lost as the disease progresses. The person still keeps their sense of touch and hearing and their ability to respond to emotion.
8 Changed behaviours and dementia
8.1 Changes in the behaviour of a person with dementia are very common. There are many reasons why a person's behaviour may be changing. Dementia is a result of changes that take place in the brain and affects the person's memory, mood and behaviour. Sometimes the behaviour may relate to these changes taking place in the brain. In other instances, there may be changes occurring in the person's environment that trigger the behaviour.
Aggression
8.2 This can be physical, such as hitting out, or verbal such as using abusive language. Aggressive behaviour is usually an expression of anger, fear and frustration.
Catastrophic reactions
8.3 Some people with dementia over react to a trivial set back or a minor criticism. This might involve them screaming, shouting, making unreasonable accusations, becoming very agitated or stubborn or crying or laughing uncontrollably and inappropriately. This tendency to over react is part of the disease. Some causes of catastrophic behaviour include:
* stress caused by excessive demands of a situation; and
* frustration caused by misinterpreted messages and underlying illness.
8.4 Catastrophic behaviour can occur very quickly and can make people caring for the person with dementia very frightened. Learning what triggers the catastrophic behaviour sometimes means that the behaviour can be avoided.
Hoarding
8.5 People with dementia may often appear driven to search for something, which they believe is missing, and to hoard things for safekeeping. Some causes of hoarding behaviour are:
* Isolation. When a person is left alone or feels neglected they may become suspicious and distrustful of others. As a result, they may focus completely on themselves and their need to hoard is a common response.
* Memories of the past. Events in the present may trigger memories of the past, such as living with brothers and sisters who took their things or living through the depression or the war with a young family to feed.
* Loss. People with dementia are continually losing parts of their lives. Losing friends, family and a meaningful role in life, and gaining an unreliable memory can increase a person's need to hoard.
* Fear. A fear of being robbed is another common experience. The person will hide something precious, forget where it has been hidden, and then blame someone for stealing it.
Repetitive behaviour
8.6 People with dementia may say or ask things over and over. They may also become very clinging and shadow a person or persons caring for them, even following them to the toilet.
9 The Village
9.1 In keeping with our ethos of enhancing the dignity and independence of residents, Brightwater has developed specialist dementia services and environments designed to help residents and their families feel comfortable and secure.
9.2 The Village at Inglewood, our principal secure dementia care facility, provides a new model of care built around flexibility and sensitivity to the unique needs of people with dementia. Clustered around shared gardens, the facility provides secure accommodation in five home-style units. This design incorporates a trail of sensory cues to help residents find their way around. The Village has attracted much attention and praise from dementia specialists in Australia and internationally (see paragraphs 9.4-10.1 below).
9.3 The Village is an `additional needs' dementia facility and as such receives additional funding from the Health Department of Western Australia to take those residents who might find it difficult to be accommodated in a normal dementia facility. The Village only takes residents who are classified with moderate to severe symptoms of dementia and who demonstrate evidence of complex behavioural challenges. This is one of 4 such facilities funded above normal Commonwealth grants by the Health Department of Western Australia and all of these facilities are operated by Brightwater. As such, many of our residents come to the Village having previously `failed' in other high care facilities. Most are referred because of their specific behavioural problems that require additional support, which is often not available in a normally funded, aged care facility. The additional funding provided by the State is discretionary. It is an ex gratia payment and will not necessarily be granted every year. It is provided as an amount per `additional need' bed across Brightwater's 4 `additional needs' facilities. It is not related to RCS levels or absolute need. Rather it is provided by the State in recognition that additional needs residents would probably otherwise reside in hospitals. This funding is directed at the `additional needs' aspects of these residents' care. These additional needs are not necessarily covered by any of the RCS questions. State funding is routinely audited and must be provided for direct care services. Direct care services are care services provided directly to the resident, rather than indirectly in the form of contact with other carers, or families, in relation to the resident. Most of the funding goes towards additional allied health care, the sessional employment of a medical officer to provide consistent medical advice to this special group of residents and additional specialist nursing care. Some of the funding is used to provide additional training to staff in order to manage this group of residents effectively.
9.4 The Village has participated in Australia wide benchmarking of the therapeutic program for dementia. It has been consistently demonstrated that the type of resident being cared for in The Village would, in other settings, be accommodated in mental health environments with far higher staffing ratios. An independent study in 1995, conducted by Richard Fleming of the Hammond Group (Inc.) using national data, suggested that The Village is significantly different in key respects from all of the facilities used for comparison.
It is closest to a psychiatric hospital but has residents who are much more behaviourally disturbed and with fewer psychiatric symptoms. The Village on average has residents who are much less physically and psychiatrically impaired but much more behaviourally disturbed.

This analysis has been ratified by the Health Department of WA in its two yearly audits of the use of additional need funding for residents which must demonstrate against their criteria that they do have additional needs and therefore warrant the funding allocated above that given by the Commonwealth.
9.5 Dr Penny Flett, Chief Executive Officer of Brightwater has been invited to talk about The Village and Brightwater's approach to the management of dementia at the following conferences:
* International Association of Homes and Services for the Ageing (IAHSA) in Barcelona 1997 `Designer environments - an enabling approach for people with severe dementia'.
* 1998 Bi-annual International Dementia Conference, Manly NSW "Recognising the risks associated with dementia care".
* Dr Flett spoke on the The Future of Dementia Care and the subject Dementia Friendly Long Term Care at the NZ Alzheimer Foundation Conference 2000 in 1999.
* In 1998 Mrs Moore spoke at the International Dementia Conference in Sydney.
* Both Dr Flett (keynote speaker) and Mrs Moore spoke at the 1999 National Alzheimer's Conference in Mandurah and Mrs Moore also spoke at the International Alzheimer's Conference in 2000 run by the Hammond Group where they ran two follow up workshops on dementia care mapping. Mrs Moore has also been asked to speak at the International Alzheimer's conference in New Zealand in 2001.
* In 2000 Dr Flett was invited by the WA Department of Trade and Commerce to attend a trade mission, led by the Deputy Premier to Japan, and she spoke on a number of occasions about Brightwater's approach to the built and therapeutic environment especially relating to Dementia care. Since that trade mission, Brightwater has been approached to provide training to the Japanese Aged Care Providers in this area.
10 The Effectiveness of `The Village' and the therapeutic environment
10.1 In 1998, `The Village' was illustrated in a book called Designed for Dementia published by Journal of Dementia care and written by Stephen Judd, Mary Marshall and Peter Phippen. A copy of the relevant chapter is attached and marked `TMA3'.. In this book Judd et al, illustrate 18 facilities from throughout Australia and Northern Europe because they demonstrate thoughtful and thorough attempts to design a therapeutic environment for groups of people with dementia. The book `Contemporary Environment for People with Dementia' makes a similar comparison for North America. The authors report that the built environment can have a fundamental effect on a person with dementia. Two chapters of this book entitled `Therapeutic buildings for people with dementia' and `Building for dementia: a matter of design' are attached and marked `TMA4'.
10.2 A therapeutic environment, however, is far more than the built environment and requires the consistent use of behaviour management interventions by all staff and the regular monitoring of such programs. There is preliminary research which indicates that the physical environment may have considerably less impact upon the severely impaired person with dementia than is commonly imagined. The critical physical environment for the person with dementia might be perceived as a `bubble', a few feet of personal space, of which he or she is at the centre. Empirical research and observation by various authors on dementia in the clinical setting testify to the overriding importance of the carer's presence to the well being of the person with dementia. Closeness, constancy, playfulness, physical contact and eye contact feature as the most important manifestations of effective intervention. Carers with a capacity to bring these qualities to the dementia care setting, are likely to be able to enter the person's `bubble' and can have a profound impact on the well being of the person they care for. When working with a person who has dementia in a group of people with dementia, the person who is facilitating the group will be the catalyst for each interaction within the dementia `bubble' for that person. This requires considerable skill on behalf of the care worker who is conducting the group to engage the person with dementia and to remain consistent in the management of that person's behaviour whilst trying to enlist their remaining skills and promote their well being.
10.3 It is helpful to perceive dementia and the therapeutic intervention in dementia around the four phases of cognitive development being reflective, symbolic, sensory-motor and reflex. There are clear changes over the course of dementia, in one's perception of and relationship to the world, and the ability to think and to do. Activities may be broadly divided into classes, which help in some measure to `match' cognitive ability. The notion of `matching' activity to cognitive levels is a helpful guide but should not be considered prescriptive. A general rule of thumb is the selection of appropriate activities that most people will derive benefit from, an activity that matches their cognitive ability, or which is at an earlier developmental level. The reverse is not the case, most people who engage in an activity that matches a later developmental level than their own, will find the activity stressful and counterproductive. In late dementia, we need to recognise that actions rather than activities are the focus of the intervention. It can be helpful to understand the engagement of activity over the course of dementia, as a journey in which doing is gradually relinquished to being.
10.4 The foundation of good dementia care lies in an assessment process that informs the practitioners and carers generally about the person's capacity for occupation, along with reliable methods for evaluating the interventions we use. Without these we subject a person to hit and miss interventions and this is professionally irresponsible. People with dementia deserve to have access to specialised services so that their occupational capacity can be assessed and understood in order to achieve optimal well being.
11 Problem wandering or intrusive behaviour
11.1 [Care recipient 187825] and [care recipient 160139] are both residents of The Village and are diagnosed with severe dementia. As discussed above, people with severe dementia require a constant environment where the care is given in a way that will help to ensure the well being of the resident and those other residents with severe dementia with whom they live. There is no cure for dementia. The problems, once assessed, do not just disappear. However an effective therapeutic environment will modify behaviours and encourage residents to use whatever skills they have. Interventions need to occur on a daily basis. Within the Village, supervision is part of every staff member's role to ensure an environment that is constant and caring.
11.2 [Care recipient 18782] has territorial behaviour. She interferes with other residents and becomes aggressive when other residents intrude into her personal space. Staff follow an individual care plan on a daily basis to manage this behaviour. She also requires guidance back to the house from anywhere in the grounds of The Village on every occasion on which she wanders from her house. These behaviours have been evident since her admission and continued from 1994 to 1999 when she was reviewed. Staff in The Village intervene in [her] behaviour throughout the day to ensure that this behaviour is minimised.
11.3 [Care recipient 160139] has a long history of absconding behaviour and was specifically referred to The Village because of the environment, and the ability of the environment (both built and therapeutic) to minimise this behaviour. [He] has a daily care plan to minimise this behaviour to ensure that his sense of well being in this environment is maintained. This behaviour has not disappeared and he has not been cured, but the skills of the staff and the built environment help to reduce his feelings of being imprisoned.
11.4 Without this daily environment his behaviour would re-surface and be as significant as it was when he was absconding from the previous nursing home and being returned by the police. The behaviour in the previous nursing home was poorly managed and the staff were not able to cope with [his] constant absconding behaviour. He was sent for respite to Osborne Park Lodge and he would have been classified by the Department and the Nursing Home as a RCS `D'.. When a daily intervention program manages the behaviour and staff who have skill to deal with this type of behaviour on a daily basis and the therapeutic environment has minimised the number of attempts to abscond, he has been classified by the Department as not requiring regular supervision. It would appear that in this interpretation of the principles there is a monetary reward for not managing his behaviour and for having an environment that helps to ensure this behaviour constantly reoccurs
12 Verbally Disruptive or Noisy
12.1 [Care recipient 187825], as discussed above, has a long history of behaviours related to her diagnosis of severe dementia. She, like many people with this stage of dementia, is intolerant of others and this requires daily management. She is frequently verbally disruptive and verbally abusive and has a long history of this behaviour. As discussed above, she is in an environment that ensures that this behaviour is minimised. She has a daily program in place to manage this behaviour and staff of The Village intervene throughout the day to minimise this behaviour.
13 Emotional Dependence
13.1 This behaviour was briefly described when discussing behaviour and dementia. It is a form of repetitive behaviour associated with loss. The person with dementia frequently requires significant reassurance. The person may be passively or actively resistant, tearful or require lots of reassurance and explanations to be managed effectively.
13.2 Both [care recipient 237212] and [care recipient 53851] have been diagnosed with dementia and were referred to Inglewood. At the time of the original RCS review, [care recipient 53851] was a resident of The Village and [care recipient 237212] was in Edis House in Inglewood. Both demonstrated the requirement for interventions on most occasions to reassure them and to encourage them to participate in any activity.
13.3 There is no evidence in dementia that this type of behaviour requires attachment to a particular person or indeed reassurance from a particular person. ...
14 Danger to Self or Others
14.1 As previously discussed, [care recipient 160139] has been diagnosed with severe dementia. [He] is suspicious of others and this leads him to refuse drinks, as he believes they may be poisoned. He also imposes fasts upon himself. This can be a form of hoarding behaviour as described in `Changed behaviours and dementia' above. These two behaviours, although less frequent than when he was first admitted, require monitoring to ensure that they are not recurring. In addition his dementia is now leading to impairments in mobility and he has fallen on occasions with the potential to hurt himself. He requires increasing supervision of his mobility to prevent falls.
14.2 [Care recipient 362793] is an interesting test of the definition related to danger to self and others. Although he does have a medical diagnosis regarding his fits (he is epileptic), which would generally exclude him from this classification, his behavioural anxiety about his condition can lead to increasing uncontrollable movements. A behavioural program can modify this anxiety and indeed reduce the number and severity of the uncontrolled movements. So it is not his diagnosis of fitting which is being reviewed in this question, but his anxiety and the ability of staff to modify his anxious behaviour, which decreases the incidents of uncontrolled movement and his ability to hurt himself. This severe anxiety leads staff to have to use a behaviour program with him on every intervention to reduce the number of uncontrolled movements that can lead and has led to him hurting himself. If this were just a medical condition the behaviour intervention program that is used by staff would not modify it.
15 Communication
Definition of Effective Communication
15.1 Communication is a two way process and involves sending and receiving messages. While communication primarily happens through talking, it also happens through reading, writing, facial expression, gesture and touch.
15.2 The process of communication involves multiple skills including: cognitive skills (memory, attention, concentration), perceptual skills (hearing, sight, touch) and motor skills (ability to use and co-ordinate muscles for speech, posture and physical movement).
15.3 To facilitate effective communication what is said should be clear and appropriate. The listener also needs to hear and understand what is said.
15.4 Communication is used for simple messages and also helps express opinions and feelings. Through communication we express our personalities and interact with other people.
Communication is primarily broken into 2 main areas:
15.5 Language - the concept of `language' is very complex and does not refer only to a person's spoken language. That is, the concept of language refers to the ability to understand and/or use words, grammar and sentences in a meaningful way.
Language has 2 components:
(a) Receptive language - the ability to understand incoming information.
(b) Expressive language - the ability to put together words and sentences.
15.6 Speech - refers to the ability to produce sounds to make up words eg: the nerves and muscles involved in talking must have the ability to work correctly.
Non-Verbal Communication
15.7 It is also important to mention that non-verbal communication has a very powerful effect on facilitating communication. Particularly in communicating the underlying meaning of what is being said. Research has shown that non-verbals make up a minimum of 70% of the message being sent from one person to another.
15.8 Non-verbal communication is a complex issue and involves a number of components which include: gesture, i.e.: the person making gestures to describe what an object looks like and/or what it is used for, pointing, heading, nodding, eye flickering, finger flickering etc to indicate yes/no facial expression - helps indicate emotional body language, i.e.: posture, touch, physical closeness, eye contact, etc.
15.9 However, if a person is restricted to non-verbal communication alone, they are limited in how much they can communicate i.e.: non-verbal communication (with no or little verbal input) can restrict a person to a `here and now' situation. This results in the person having difficulty expressing complex thoughts and reasons for emotions.
Intonation
15.10 The person's ability to place stress on certain sounds or parts of words or within sentences, also helps facilitate effective communication, eg: `Did you see that movie Spider Man?' could be said with emphasis on the words `Spider Man' indicating a question. Or if the emphasis is placed strongly over the entire sentence, the person is indicating to you what a terrible movie.
Diagnostic Terms and Definitions for Communication Disorders:
15.11 Dysphasia - is a deficit of language. The deficit can relate to difficulties with receptive and/or expressive language. This nearly always includes some degree of difficulty with reading and/or writing.
15.12 Receptive Dysphasia - refers to difficulties in understanding the spoken or written word. Typical problems for a person with receptive dysphasia include difficulties recognising people and/or objects, mild to severe difficulties understanding instructions and conversation and/or reading material.
15.13 Expressive Dysphasia - refers to the difficulty putting thoughts, feelings and ideas into words, sentences and paragraphs. For example, the person may have difficulty naming objects, actions or people. Often sounds in words are substituted to an incorrect sound and/or complete incorrect word substitutes are made. The person may or may not be aware of their expressive difficulties.
15.14 Dysarthria - is a speech disorder that relates to weakness of the muscles and nerves used to produce speech. A dysarthric person may have weak or slurred speech, difficulties with dribbling and have a hoarse voice.
15.15 Dyspraxia - is a difficulty sequencing oral movements and sounds. The person may have difficulty initiating sounds and/or have difficulty saying a sound within a word, or have difficulty sequencing words within a sentence.
15.16 A person with a communication disorder may exhibit one or all of the above communication disorders. With all of the above disorders, a person's ability to communicate may further deteriorate if in an unfamiliar environment, communicating with strangers, when anxious and when tired.
Communication disorder:
15.17 Breakdown in any part of the communication chain eg: a stroke resulting in difficulty in saying words or understanding people or hearing problems etc.
Reasons for communication breakdown:
15.18 Result of disease eg: degenerative (Parkinson's, Motor Neuron, Dementia, Multiple Sclerosis etc).
15.19 Damage to the brain as a result of events eg: stroke, head injury, effects of medication, carbon monoxide poisoning, petrol sniffing, etc.
Frequent consequences of communication breakdown:
15.20 Frustration (which can lead to behavioural problems eg: anger, withdrawal, depression, isolation).
15.21 Impacts on family and staff when always an effort to communicate.
16 Communication - Case examples
16.1 [Care recipient 79403] is a 97 (sic - should be `91') year old woman with Alzheimer's and dementia. [Her] communication skills are both expressively and receptively impaired. She requires individual assistance from carers with all activities. When attempting to express herself [she] is easily distracted, and her speech may be incoherent. At the time of the RCS review, the Speech Pathologist noted that [she] was not consistently able to make her needs known. In terms of receptive ability, [she] is unable to consistently follow even 1 stage commands.
16.2 In order for carers to be understood by [her] and for them to understand her, carers:
* ask questions requiring a 1 word response;
* offer forced choices;
* maintain eye contact; and
* supplement all communication with gestures.
16.3 [Care recipient 114387] is an 85 year old ... man. He has been diagnosed with chronic amnestic syndrome and schizotypal personality. He also has dementia. [He] can be paranoid and delusional and nursing notes record a variety of behavioural problems including wandering and physical aggression.
16.4 [He] is unable to express his needs verbally or to follow simple verbal commands. There are a number of factors to [his] non-comprehension:
* when there is background noise he is unable to hear;
* he is unable to use facial expressions and gestures;
* in terms of auditory comprehension, he is unable to follow simple commands;
* he is unable to initiate or maintain a conversation.
16.5 [He] is at risk of social isolation through his inability to communicate. There is also an impact on [his] family which feels that it has `lost a father'.. [He] himself also suffers frustration at his lack of communication ability which can lead to aggressive behaviour. Carers must:
* touch [him] to gain his attention;
* stand directly in front of him and speak in a loud voice;
* use facial expression and gestures to assist [his] comprehension.
16.6 However, [his] level of comprehension is so low, that carers must physically guide [him] through all activities, again, supplementing this guidance with physical expression and gestures to gain his cooperation.
16.7 [Care recipient 362793] is a .... man who sustained brain damage as the result of an epileptic seizure. [He] experiences both epileptic seizures and other involuntary muscle spasms (or jerking). He has a mild intellectual disability.
16.8 [He] has moderate receptive dysphasia. He can respond to his name and gestures, understand the names of objects and key words, understand 1 step instructions, or even 2-3 step instructions if they are repeated.
16.9 In terms of expression [he] is unable to plan purposeful movement of his larynx (apraxia) which combined with involuntary muscle spasms makes it very difficult for [him] to communicate verbally.
16.10 The involuntary muscle spasms which affect his arms mean that [he] cannot use a communication board. Further, he is illiterate.
16.11 [He] has severe difficulties making his needs known and requires support for all activities.. Carers provide extensive support to [him] to enable him to communicate his thought, in keeping with the guiding principles of personhood. The strategies employed take considerable time. Indeed they take much more time and staff skill than using an interpreter, or a communication board.
16.12 Carers encourage [him] to take deep breaths and relax before speaking. When [he] experiences difficulties in speaking he becomes emotionally upset and the jerking which affects his speech becomes worse. The strategies employed to optimise [his] communication are:
* gain [his] attention by touch/voice before commencing interaction;
* ensure he can see you;
* reduce background noise and distraction when talking to him;
* use gesture and facial expression when talking to him. Provide visual tactile and physical prompts if necessary to aid understanding;
* avoid abstract language like `Its raining cats and dogs', say `Its raining';
* engage in conversation as much as possible during the day;
* ask open ended questions to engage conversation such as `How are you feeling today?' not `Are you well today?';
* give him time to process information and respond to it;
* if he is struggling to find the correct word, supply word options, eg `Do you mean x or y?';
* if the same topic is being repeated, help to change topics by asking a question about something else; and
* provide lots of encouragement.
16.13 [He] has a severe communication disorder, which requires carers to spend a great deal of time with him in order for [him] to express himself. However, as [he] has no problems with seeing or hearing, has English as a first language and does not use a communication board he has received a RCS rating of `C' despite the severity of his condition.
17 Communication - Hypothetical examples
...
18 Therapy
18.1 Occupational Therapists, Speech Pathologists and Physiotherapists work as members of a team to develop and deliver programs, which assist people with disabilities to maximise their abilities and to function at their optimum level of independence within the community in which they live.
18.2 All therapists receive training and instruction at university to gain a degree in their specialised field. Their training and instruction includes a wide range of techniques to maximise people's abilities based on their knowledge of normal function versus dysfunction.
18.3 The therapists gain a high level of skill in assessment, planning, implementation and evaluation of a wide range of physical, psychosocial and psychological conditions. Within an aged care environment therapists play an important part in the provision of information, in-service education and team-orientated services. When working in an aged care setting therapists offer services based on a collaborative consultation model. Within this model, therapists may provide direct or indirect services. Direct services may include individual and small groups. Indirect services may include consultation with colleagues or family. In many situations programs designed by therapists are implemented by therapy assistants or care workers.
19 Occupational Therapy
19.1 Occupational Therapy is a four-year university degree course. Occupational Therapy involves the study of `occupation'.
19.2 Occupation refers to purposeful or meaningful activities in which humans engage as part of their normal daily lives. It comprises the three areas of self-care, productivity and leisure, undertaken in a balance that is consistent with health and satisfying to the individual in his or her varied life. Occupational Therapists work with people whose special needs and life challenges have adversely affected their ability to function meaningfully and effectively in the community. For example, by developmental disability, consequences of the aging process, physical injury, illness or barriers in social or physical environment. Occupational Therapy addresses these challenges by promoting health through analysis, development and management of the environment, activities and roles that contribute to occupational function. These activities are carefully selected, structured and adapted according to the unique needs of the individual and his or her level of physical, psychological and social functioning.
19.3 Occupational Therapists receive, at the undergraduate level, specific training and instruction regarding group work and the provision of therapy using group techniques. There is a wealth of literature and research that demonstrates best practice regarding the use of group-based therapy as a suitable and often more effective alternative to individual therapy in many situations. A recent review of the literature by the Joanna Briggs Institute for evidence based nursing and midwifery on `Group versus individual therapy in the treatment of depression' found that group therapy was just as effective as individual therapy. They suggested in an era of cost cutting the apparent usefulness of group therapy could be used with confidence for depressed patients.
19.4 Occupational Therapists working in an Aged Care setting aim to:
* provide assessment of the person's ability to function within the physical cognitive sensory and psycho-social environment;
* make recommendations for care plan development in all clinical areas;
* co-ordinate the develop a plan of occupation, which uses the person's abilities without exceeding the capacity to succeed;
* supervise the implementation of the occupational programme and the review of goals and outcomes for these individual programmes;
* play a pivotal role in leading and supporting professional colleagues in the development of a therapeutic environment in dementia care that works to improve the well being of residents while helping to interpret the reasons behind behaviour and determining the use of activity that can help to use the sensory and motor skills still available to the person with dementia.
20 Speech Pathology
20.1 Speech Pathology is a four year university degree course specialising in both adult and paediatric communication and swallowing disorders.
20.2 The role of the Speech Pathologist is to assess a person's communicative abilities, that is primarily their speech and language function, diagnose the presence of any communication disorder and provide therapy and/or therapy recommendations for identified disorders. Speech pathologists generally work within a team setting based in hospitals, aged care facilities and community and school settings.
Typical treatment of communication disorders in aged care facilities
20.3 Due to the limited hours of funding available to Allied Health staff - specifically Speech Pathology staff (who primarily diagnose and treat communication disorders) often treat residents in a group situation, rather than on a one to one basis.
20.4 However, research has also shown that treating or facilitating communication can often be best achieved in a group setting. This does not mean to say that an individual treatment plan has not been devised for each resident attending a group. For example a group of 5 residents attending a `Quiz Group' each have a different goal, with staff modifying their input to meet the individual's needs.
Resident 1 - has word finding difficulties, so staff use specific cues to help elicit words.
Resident 2 - has difficulty following instructions, so staff must reduce their language to accommodate this resident.
Residents 3 and 4 - have difficulty producing certain sounds, therefore staff help use techniques to facilitate the sounds the resident is having trouble with.
Resident 5 - has difficulty initiating conversation (staff once again use specific techniques to promote the resident to join, initiate and join in conversation).
Typical presentations of communication disorders in aged care facilities
21 Case Examples
21.1 An example of a resident particularly suited to group therapy is [care recipient 393216]. [She] is timorous and softly spoken. She seldom initiates interaction with staff and ignores other residents. She is negative and indecisive.
21.2 Two of the goals in occupational therapy and speech pathology are to promote diversions to encourage socialization and promote relaxation and enjoyment. In response to [her] moderate receptive and expressive language impairment, which leads to significantly reduced motivation to communicate, the Speech Pathologist recommended that [she] be encouraged to attend a moderate level communication group (including the cooking group) to promote social conversation skills.
21.3 The aims of this group therapy are to:
* promote communication skills;
* encourage more frequent interaction with staff; and
* increase motivation to communicate.
21.4 By contract [care recipient 193889] also participates in group cooking exercises. [She] has no English skills and non-functional [first language]. [She] participates in the cooking group in response to the following functional problems:
* confusion, disorientation and memory loss; and
* inability to initiate, sequence or continue purposeful activity.
21.5 The goals of the therapists in assisting [her] in the cooking group are to:
* encourage awareness of self, environment and activity;
* minimise episodes of agitation and anxiety; and
* encourage feelings of enjoyment.
21.6 Each of these residents participates in the group activity for different reasons, yet each is directly and individually assisted by carers to achieve the goals in the specific care plans.
22 Physiotherapy
22.1 Physiotherapy is a four-year university degree course and involves the use of physical means to prevent and treat injury or disease.
22.2 Physiotherapists help people of all ages, from newborn to the elderly, with a wide range of disorders affecting the nervous system, musculoskeletal system and cardiopulmonary system.
22.3 Treatment generally aims to reduce pain, restore or maintain movement, and assist patients achieve the highest possible level of physical independence and fitness.
22.4 The types of treatment used include therapeutic exercise and movement (including gait re-education), manual therapies (manipulation and therapeutic massage) and physical agents (ice, heat and electricity). Hydrotherapy (water based exercise) is a useful treatment medium for many patients.
22.5 Emotional support and education for the maintenance and restoration of health in patients is also an integral part of physiotherapy.
22.6 Physiotherapists working in an aged care setting aim to:
(a) Assist patients in their recovery from acute and chronic illnesses.
(1) People are known to improve for many months, even years, after neurological incidents such as stroke or head injury. Physiotherapy plays an important role in facilitating ongoing recovery from these types of problems.
(2) Patients in aged care settings may also suffer from broken bones, arthritis, postural dysfunction, pneumonia, chest infections, etc. all of which may benefit from standard physiotherapy interventions.
(b) Prevent complications from long-term physical and/or intellectual disability, including progressive conditions such as Motor Neurone Disease, Multiple Sclerosis and Alzheimer's disease.
(1) Physical disabilities may make it difficult to move individual joints, limbs or the total body. Intellectual disabilities can affect motor planning and the initiative to move. Either type may cause progressive loss of movement, leading to muscle weakness, joint contractures, postural abnormalities, loss of cardiovascular fitness and reduction in independence.
(2) Physiotherapy programs in these cases aim to identify individual risk factors and implement appropriate treatment program in order to maintain a patient's functional mobility (i.e. moving in bed, transfers, ambulation, etc) and optimise their physical fitness and independence.
(3) For example, [care recipient 362793] was an active person who enjoyed sports. After sustaining brain damage [he] has jerking which is difficult to control and ataxia, which he is unable to control. [He] is also unable to mobilise, and has poor sitting and standing balance.
(4) The physiotherapy goals for [him] include reducing ataxia, and increasing standing ability, tolerance and balance. To this end [he] does rehabilitation exercises 2-3 times per week. These involve sitting, trunk work and standing practice, the use of a tilt table and work on the bed which includes stretching.
(c) Assess patients' physical abilities and establish the best ways of assisting them to move (eg. in bed, transfers into chair, ambulation) in order to promote their independence and reduce manual handling risks to staff on an ongoing basis. Where appropriate, physiotherapists implement patient training programs to achieve better functional mobility, and they provide regular staff education and support.
For example, [care recipient 362793] uses a wheelchair which is fitted with a tilt recliner, lap belt, tray, ankle straps, an anti-thrust seat cushion and a lateral support back cushion. The physiotherapy plans specify how the equipment must be used including the exact tilt of the chair so that [he] does not suffer back pain, and how to tilt the chair to counter specific problems which [he] encounters.
(d) Physiotherapists recognise the psychological benefits of using group programs to assist in the motivation of patients, and group exercise programs are often appropriate in an aged care setting.
For example, [care recipients 187825, 53851, 237212 and 160139] each attend a group exercise program. The functional problems addressed for each of the residents differs slightly, but is centred on a loss of general function and stamina. The goals are related to maintenance of general function, and exercise endurance, increasing mobility of identified joints, and maintaining maximum levels of independence.
(e) Incorporating physical goals into normal functional activities (such as outdoor walking, dance, physical sports, etc) is also useful, particularly when dealing with people with poor cognitive ability (eg. from dementia or head injury) that may not be co-operative with a more structured physiotherapy program.
For example, with [care recipient 362793] the physiotherapy activities are combined with other activities, such as outings, and exercises while talking or doing something else.
22.7 Therapy Assistants are trained specifically and regularly supervised by therapists to implement therapy programs. Therapy Assistants sometimes have certificate qualifications but need no formal training. Therapy Assistants are not qualified to assess or evaluate or modify programs without the consultation of the supervising Therapist." [original emphasis]

[The annexures to Ms Aslett's Statement have been omitted.]

69. In her brief oral evidence-in-chief Ms Aslett verified the contents of the above Statement and the annexures thereto.

70. In cross-examination Ms Aslett:

* explained that her description (in para 14.1 of her Statement) of the effects of care recipient 160139's dementia related to the state of affairs which existed at the time of the "audit" or "first review" [which the Tribunal takes to mean Ms Wilson's review visit on 31 May 1999];

* acknowledged that care recipient 362793 (as referred to in para 14.2 of her Statement) becomes "extremely frustrated" because of his medical condition, namely, epilepsy, and brain damage by reason of an episode of lack of oxygen to the brain;

* explained that her description (in para 16.1 of her Statement) of care recipient 79403's communication skills related to the state of affairs which existed at the time of the "first review" [which the Tribunal takes to mean Ms Jones' review visit on 30 May 1999];

* acknowledged that not all communications with care recipient 362793 are non-verbal communications (see paras 16.11 and 16.12 of her Statement).

71. In re-examination Ms Aslett confirmed that:

* to her knowledge, there was no change in the level of care recipient 160139's care needs between March 1999 and May/June 1999;

* the "interventions" specified in the Occupational Therapy Specific Care Plan for care recipient 187825 (in annexure "MB2" to Marlene Bell's Statement, at p 92) "would have to be used daily, frequently";

* the "jerking" or "spasming" symptoms experienced by care recipient 362973 do not occur while he is asleep and resting, occur only occasionally and not to a great extent when he is alone in a quiet room, but become much worse when he is surprised or unsure about what is going to happen;

* to her knowledge, there was no change in the level of care recipient 79403's care needs from December 1998 to June 1999.

THE RESPONDENT'S CASE

72. The respondent's case comprised the oral evidence and written Statements of Meeli Kersti Eriksson (Exhibits R1 and R2), Dianne Scott (Exhibit R3), and Suzanne Wallington (Exhibit R4); the written Statements of Jennifer Susan Hefford (Exhibit R5) and Iren Margaret Hunyadi (Exhibit R6); the oral evidence of Dr Richard Rosewarne and the "RCS Review" (as revised) conducted by Dr Rosewarne (Exhibits R7 and R8); and The Document and Accountability Manual issued by the (former) Department of Health and Family Services (Exhibit R9).

The evidence of Meeli Kersti Eriksson, Dianne Scott, Suzanne Wallington and Iren Margaret Hunyadi

73. Ms Eriksson, Ms Scott, Ms Wallington and Ms Hunyadi are employed by the Department of Health and Ageing as Commonwealth Nursing Officers. As mentioned in paragraph 35 above, they visited the applicant's Inglewood facility on 25 and 26 August 1999 for the purpose of evaluating changes in the classification levels of the relevant care recipients which resulted from the reviews undertaken by Ms May, Ms Mack, Ms Wilson and Ms Jones on 31 May 1999 and 1 June 1999, and making recommendations to the respondent's delegate (Ms J Hefford) regarding the confirming, varying or setting aside, under s85-5(5) of the Act, those changes in classification levels. They each subsequently made a report, containing their recommendations, to the delegate, as set out in paragraphs 36-44 above. Their evidence to the Tribunal consisted, for the most part, of an outline of their standard practices in conducting such "appeal visits", including the documentation considered and the use of "oral evidence" (where necessary) during such visits, and an explanation of their understanding of the relevant RCS questions and the bases on which they made the findings and recommendations set out in their respective abovementioned reports to the delegate.

74. The Tribunal's function in the present matter is to make its own findings, on the basis of the appropriate material, as to the appropriate ratings on the relevant RCS questions in respect of the relevant care recipients for the purpose of determining the correct classification level, in accordance with the table in Schedule 2 to the Classification Principles, of each of those care recipients. It is not, however, part of the Tribunal's function in this matter to review the reasons of the abovementioned Commonwealth Nursing Officers for making their findings and recommendations on those matters to the delegate (all of which findings and recommendations were, as mentioned in paragraph 46 above, subsequently adopted by the delegate, Ms Hefford, in her reconsideration decisions under s85-5 of the Act on 7 October 1999). Accordingly, the Tribunal notes the evidence of Ms Eriksson, Ms Scott, Ms Wallington and Ms Hunyadi in this matter but does not attach any significant weight to it for present purposes.

The evidence of Jennifer Susan Hefford

75. Ms Hefford, as noted above, was the respondent's delegate who made the relevant decisions on reconsideration under s85-5(5) of the Act in respect of the relevant care recipients in this matter. In her Statement of 4 October 2000 (Exhibit R5) Ms Hefford confirmed that she made those decisions on the basis of the recommendations made to her by the abovementioned Commonwealth Nursing Officers, and then briefly summarised the process whereby she customarily made decisions under s85-5 of the Act (including the decisions made by her on 7 October 1999 in the present matter). The Tribunal notes Ms Hefford's Statement but derives no assistance from it for the purpose of performing its review function in this matter.

The evidence of Richard Rosewarne

76. Dr Rosewarne, who described himself as a consultant in aged care, confirmed that he had prepared a document entitled "RCS Review", dated 23 April 2001 (Exhibit R7), and a subsequent document entitled "Revisions to Review", dated 13 December 2001 (Exhibit R8). Attached to the "RCS Review" document is a "brief curriculum vitae" of Dr Rosewarne which outlines his academic qualifications, professional memberships, government advisory roles, selected publications and research reports, and his recently completed, and current, projects. That curriculum vitae clearly indicates that Dr Rosewarne has great expertise in relation to aspects of aged care.

77. Dr Rosewarne's "RCS Review" comprises a review of documentation provided to him by the Department in relation to the 9 care recipients in this matter, and his findings as to the appropriate ratings on the relevant RCS questions in respect of those care recipients. In reviewing that documentation and making his findings Dr Rosewarne had regard to pages 5-2 and 5-3 (in particular) of The Documentation and Accountability Manual (Exhibit R9) and to certain "guidelines" and "other standards" (as set out in the introduction to this report) formulated by himself for that purpose.

78. As noted above (paragraph 74), however, it is part of the Tribunal's function in this matter to make its own findings as the appropriate ratings on the relevant RCS questions in respect of the relevant care recipients, on the basis of what it considers to be the appropriate relevant material before it, and in performing that function the Tribunal will, of course, arrive at its own interpretation of the relevant RCS questions (having regard to the "guidelines" set out in Part 1 of Schedule 1 to the Classification Principles) and form its own opinion regarding the adequacy or inadequacy of the documentary material before it. Accordingly, the Tribunal will note Dr Rosewarne's "RCS Review" but, notwithstanding his great expertise in the area of aged care, it will not attach any significant weight to his interpretations, and findings, or to the guidelines, standards and general methodology he adopted, as set out in that document.

The Documentation and Accountability Manual

79. The Tribunal has, in performing its review function in this matter, had regard to The Documentation and Accountability Manual (Exhibit R9), issued by the (former) Department of Health and Family Services, as a statement of Departmental policy and practice. That document does not, of course, have the force of law and, accordingly, the Tribunal has not regarded itself as legally bound by its contents.

FINDINGS

80. The Tribunal will now proceed to make its findings as the appropriate ratings on the relevant RCS questions set out in Part 1 of Schedule 1 to the Classification Principles, in respect of the 9 care recipients in this matter. It will then, on the basis of those findings and the "scores" set out in the table in Part 2 of Schedule 1, determine the appropriate classification level of each care recipient in accordance with the table in Schedule 2 to the Classification Principles.

Care recipient 187825

81. The relevant documentary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care receipient 187825 are, in accordance with paragraph 63 above, limited to those which were in existence as at 8 April 1999 (the date on which the classification of that care recipient was renewed under s28-1(1) of the Act).

Question 9 - Problem wandering or intrusive behaviour

82. Care recipient 187825, who was born in December 1910, had been diagnosed with dementia and was a resident of "The Village" within the applicant's aged care facility from December 1997. The applicant's relevant documentation (included within annexure 2 to Ms Bell's Statement (Exhibit A1)) includes:

* "Behaviour Chart", dated 20 December 1997, which identifies various "problem behaviours" for assessment, including "interfering with others or others' belongings";

* "Master Problem List" which records a problem of "interfering behaviour" as having been identified on 9 January 1998 and reviewed on 21 March 1999;

* "Specific Care Plan" for the problem of "intrusiveness - interfering with other residents' activities", which lists 10 "interventions" in order to "minimise behaviour";

* "Progress Notes" which record:

- 4 March 1999: "[Care recipient] is intrusive into other residents' space when these apparently upset her";

- 21 March 1999: "Interfering behaviour continues, but prevented frequently with interventions as per care plan. Behaviour usually triggered by challenging or anti-social behaviour by other residents".

83. The relevant material before the Tribunal does not establish to its satisfaction that care recipient 187825 has been "assessed as being likely to wander or interfere with others or others' belongings at any time of the day or night" and that "supervision and intervention are required daily", within the meaning of RCS Question 9. Accordingly, a rating of D on that Question is not appropriate. The Tribunal is, however, satisfied, on the basis of that material, that the need for interventions, designed to minimise the care recipient's intrusive behaviour, has been assessed and determined, and that that behaviour has been identified in the abovementioned "Specific Care Plan" as requiring "monitoring" and "supervision" (within the meaning of RCS Question 9). It appears from that "Specific Care Plan", however, that the specified "interventions" were of a reactive, rather than a pro-active, nature and were not necessarily to be implemented on a daily basis; nor do the "Progress Notes" record daily implementation of those "interventions".. The Tribunal is, however, satisfied on the basis of the relevant material before it, that the specified "interventions" were required to be implemented "intermittently", rather than merely for "occasional occurrences", but that "monitoring" (within the meaning of RCS Question 9) for recurrence of the care recipient's intrusive behaviour was required on an ongoing basis, and "supervision" (within the meaning of RCS Question 9) was required on a regular and frequent, although not on a daily, basis.

84. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 9, in respect of care recipient 187825, is C.

Question 10 - Verbally disruptive or noisy

85. The applicant's relevant documentation (included within annexure 2 to Ms Bell's Statement (Exhibit A1)) includes:

* behaviour recording charts covering a 6-day period (21-26 December 1997) record occurrences of verbal aggression, and the "interventions" then implemented therefor, on 3 of those days;

* "Specific Care Plan" for the problem of "'verbal aggression and abusiveness triggered by other residents' anti-social behaviour and intrusive behaviour', which lists 3 "interventions" in order to "minimise behaviour";

* "Progress Notes" which record:

- 4 March 1999: "Sometimes verbally aggressive when ... upset with behaviour of others";

- 20 March 1999: "Resident became verbally aggressive when male resident intruded into her room. All efforts to calm resident unsuccessful til male resident coaxed from her room";

- 21 March 1999: "Attempts at verbal aggression continue due to ... intolerance of other residents anti-social acts or intrusive behaviour. Prevented/minimised with strategies as per care plan - used daily".

86. The relevant material before the Tribunal confirms that the use of abusive language by care recipient 187825 was identified as a "problem behaviour" requiring "monitoring" and "supervision" (within the meaning of RCS Question 10), and that the need for "interventions", designed to minimise that kind of behaviour, was assessed and determined, in the abovementioned behaviour recording charts and Specific Care Plan. That material, however, does not, on the whole, establish to the Tribunal's satisfaction that such supervision and the interventions specified in the Specific Care Plan were required on a daily basis. The Tribunal notes that the specified interventions appear to be of a reactive, rather than a pro-active, nature and that the abovementioned "Progress Notes" do not specifically record daily occurrences of "verbal aggression" on the part of the care recipient. The Tribunal, accordingly, does not regard a D rating on RCS Question 10 as appropriate. The Tribunal is, however, satisfied that the care recipient required continuous "monitoring" (within the meaning of RCS Question 10) for recurrence of that kind of behaviour, and also "supervision" (within the meaning of RCS Question 10) on a regular and frequent basis, but not on a daily basis. Likewise, the Tribunal is satisfied that the interventions specified in the Specific Care Plan were required to be implemented intermittently (within the meaning of RCS Question 10), but not daily.

87. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 10, in respect of care recipient 187825, is C.

Question 11 - Physically aggressive

88. The applicant's relevant documentation (included within annexure 2 to Ms Bell's Statement (Exhibit A1)) includes:

* "Behaviour Chart" dated 20 December 1997 records various "problem behaviours", including "aggressive physically - grabbing, pushing", and behaviour recording charts covering a 6-day period (21-26 December 1997) record occurrences of such behaviour, and the interventions then implemented therefor, on 5 of those days;

* "Master Problem List" which records a problem of "physical aggression" as having been identified on 9 January 1998 and reviewed on 21 March 1999;

* "Specific Care Plan" for the problem of "physical aggression towards the other residents - trigger: intrusiveness or anti-social behaviour of other residents", which lists 8 "interventions" in order to "minimise behaviour";

* "Progress Notes" which record:

- 4 February 1999: "[Care recipient] grabbed [other resident] by the arm due to her entering bedroom. Large skin tear sustained to [other resident's] R arm ...";

- 4 March 1999: "[Care recipient] can be physically aggressive with other residents";

- 4 March 1999: "Physical aggression triggered by another resident pushing chair in front of her door";

- 13 March 1999: "Threatened physical aggression towards one resident x 2 and one resident x 1 ... intervention prevented physical contact";

- 21 March 1999: "Potential to be physically aggressive remains triggered by same causes as for verbal aggression. Instances reduced with interventions".

89. The remarks made by the Tribunal in paragraph 86 above in relation to the material relevant to RCS Question 10 are, mutatis mutandis, apposite to the abovementioned material relevant to RCS Question 11. For the same reasons as expressed in paragraph 86, the Tribunal likewise does not regard a D rating on RCS Question 11 as appropriate. The Tribunal is, however, satisfied that the care recipient required ongoing "monitoring" (within the meaning of RCS Question 11) for recurrence of physically aggressive behaviour, and also "supervision" (within the meaning of RCS Question 11) on a regular and frequent basis, but not on a daily basis. Furthermore, the Tribunal is satisfied that the interventions (or at least some of them) specified in the Specific Care Plan were required to be implemented intermittently (within the meaning of RCS Question 11), but not daily.

90. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 11, in respect of care recipient 187825, is C.

Question 19 - Therapy

91. The applicant's relevant documentation (included within annexure 2 to Ms Bell's Statement (Exhibit A1)) indicates that care recipient 187825 was individually assessed by qualified therapists as requiring occupational therapy (on 8 January 1998, reviewed on 31 March 1999), physiotherapy (on 9 January 1998, reviewed on 1 December 1998), and speech therapy (on 22 January 1998, reviewed on 4 May 1998 and 10 March 1999), and includes the following:

* an occupational therapy "Assessment Summary and Care Plan" in respect of the care recipient, prepared by an occupational therapist on 31 March 1999, which outlines the functional problems, the "therapy intervention plan", and "therapy outcome";

* a physiotherapy "Assessment Summary and Care Plan" in respect of the care recipient, prepared by a physiotherapist on 1 December 1998 and reviewed on 15 March 1999, which outlines the functional problems, the "therapy intervention plan", and "therapy outcome";

* 4 "Specific Care Plans" for occupational therapy, each of which lists numerous interventions to deal with a particular aspect of the care recipient's dementia, prepared by an occupational therapist on 14 January 1998 and reviewed on 31 March 1999;

* an "Individual Therapy/Program Plan" for the care recipient, which outlines "individual programmes" for occupational therapy, physiotherapy, and speech therapy, and is signed by an occupational therapist (dated 1 April 1999), a physiotherapist (dated 1 April 1999), and a speech therapist (dated 2 April 1999);

* "Progress Notes" which record:

- 15 March 1999: "Physio programme as noted in Therapy Care Plan continues to address needs to maintain resident's independence in mobility";

- 1 April 1999: "Resident regularly attends large and small groups including exercise/gross motor, reminiscence, cognitive (bingo, quizzes) and entertainment. She needs extensive encouragement to initially participate. Specific Care Plans and Programme Plan have been reviewed and remain appropriate".

92. The Tribunal is satisfied, on the basis of the abovementioned documentation, that physiotherapy, occupational therapy and speech therapy have been documented by the applicant as care needs of care recipient 187825 and that each of those kinds of therapy was provided to that care recipient by the applicant in its Inglewood aged care facility. The Tribunal is also satisfied that the care recipient's need for each kind of therapy was individually assessed by qualified therapists and that a "personalised therapy plan" (within the meaning of RCS Question 19) in respect of each kind of therapy was developed for the care recipient by each of the relevant qualified therapists (see, in particular, the "Individual Therapy/Program Plan" referred to in paragraph 91 above). The Tribunal is also satisfied that each of the relevant therapy care plans and programs was implemented either by the relevant therapist or by the applicant's staff at the direction of that therapist. Questions remain, however, as to the frequency with which each therapy program was in fact provided to the care recipient, and as to the "regular evaluation" of each therapy program by the relevant therapist.

93. The documentary material referred to in paragraph 91 above indicates that, in respect of care recipient 187825, there had been developed an extensive occupational therapy program, together with substantially less extensive physiotherapy and speech therapy programs. Although that documentation does not record how frequently each kind of therapy was in fact provided to the care recipient, the Tribunal is prepared to accept that such therapy was in fact provided to the care recipient in accordance with the relevant care plan and program. According to those care plans and programs various parts of each therapy program, generally of short duration (eg 5-10 minutes), were to be provided on a daily basis, other parts (of longer duration) on a weekly basis. It would, in the Tribunal's opinion, clearly be going too far to say that a substantial therapy program developed for care recipient 187825 was provided to her either in "daily blocks", or 3 or more times per week in "large blocks of time" of at least 30 minutes duration each, as required by RCS Question 19 to support a D rating on that Question. Moreover the Tribunal is, on balance, not satisfied that, even when the various parts of the relevant therapy programs that were provided to the care recipient are added together, it could reasonably be said that a substantial therapy program was provided to her at least 3 times per week, as required by RCS Question 19 to support a C rating on that Question. In making that assessment, the Tribunal has had regard to the fact that some of the "group activities" (eg bingo, quizzes, church attendance) included in the care recipient's individual occupational therapy program are covered by RCS Question 15 (Social and human needs - care recipient) on which the care recipient has been given a C rating. The Tribunal also notes that, according to the relevant documentation before it, at least in the case of the relevant occupational therapy and physiotherapy programs, there does not appear to have been the kind of regular evaluation of the effectiveness of the program that seems to be contemplated in RCS Question 19 and such lack of regular evaluation is, in its opinion, a factor militating against, although not of itself necessarily excluding, a D or C rating on that Question.

94. In the Tribunal's opinion, having regard to the nature and duration of each of the particular aspects of the therapy programs developed for care recipient 187825, and the frequency with which each particular aspect was provided to her, the amount of therapy provided to her was approximately equivalent to the provision of a therapy program once or twice per week and is appropriately described as "substantial" support, but not "major" or "extensive" support (within the meaning of RCS Question 19).

95. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 187825, is B.

Appropriate classification level

96. According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 9,10,11 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 41.18.. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 41.18 falls within the range of scores (namely, 39.81 - 50.00) for classification level 5.

97. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 187825, in accordance with the Classification Principles, is 5.

Care recipient 393216

98. The relevant documentary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care recipient 393216 are, in accordance with paragraph 63 above, limited to those which were in existence as at 29 March 1999 (the date on which the classification of that care recipient was renewed under s28-1(1) of the Act).

Question 19 - Therapy

99. The applicant's relevant documentation (included within annexure 3 to Ms Bell's Statement (Exhibit A1)) indicates that care recipient 393216 was individually assessed by qualified therapists as requiring occupational therapy (on 9 March 1998, reviewed on 21 March 1999), and speech therapy (on 4 March 1998, reviewed on 16 September 1988 and 10 March 1999), and includes the following:

* "Occupational Therapy Assessment", dated 9 March 1998, reviewed on 21 March 1999, contains the following "occupational therapy plan": "To provide diversions to encourage socialization"; "To promote independence in eating"; "To promote relaxation and enjoyment";

* "Speech Pathology Assessment Form", containing a statement of "plans/goals" and "action /intervention", completed by a speech therapist, dated 4 March 1998, reviewed on 16 September 1998 and 16 February 1999;

* "Allied Health Assessment Summary and Care Plan (Speech Pathology)", dated 10 March 1999, which outlines functional problems regarding communication, and a "therapy intervention plan" which includes: "[Care recipient] will be encouraged to attend a moderate level communication group to promote social conversation skills";

* "Specific Care Plan" which lists numerous "specific strategies to optimise communication", dated 11 March 1998, reviewed on 10 March 1999;

* "progress notes" regarding physiotherapy (dated 21 September 1998 and 4 March 1999) and speech pathology (dated 10 March 1999) - the latter note includes: "Therapy: Resident to be included in moderate level communication group 1 x weekly to promote social conversational skills ...".

The Tribunal notes, from the material before it, that a physiotherapy assessment of the care recipient was apparently not made until 7 April 1999 (that is, after the relevant classification renewal was made on 29 March 1999) and, accordingly, that assessment and the subsequent physiotherapy "Assessment Summary and Care Plan" dated 27 August 1999 have not been considered by the Tribunal. For the same reason an occupational therapy "Assessment Summary and Care Plan" dated 25 May 1999 has not been considered by the Tribunal.

100. The Tribunal is satisfied, on the basis of the relevant material before it, that occupational therapy and speech therapy have been documented by the applicant as care needs of care recipient 393216 and that each of those kinds of therapy was provided to that care recipient by the applicant. The Tribunal is also satisfied that the care recipient's need for each kind of therapy was individually assessed by qualified therapists and that a "personalised therapy plan" (within the meaning of RCS Question 19) in respect of each kind of therapy was developed for the care recipient by each of the relevant qualified therapists. The Tribunal is also satisfied that each of the relevant therapy care plans was implemented either by the relevant therapist or by the applicant's staff at the direction of that therapist.

101. As regards the appropriate rating on RCS Question 19 in respect of the therapy provided by the applicant to care recipient 393216, however, the Tribunal is not satisfied, on the basis of the relevant material before it, that a therapy program of sufficient substance was provided with sufficient frequency to warrant a D, or even a C, rating on that Question. The material before the Tribunal is simply too general and insubstantial to allow it to make such a finding. The respondent has, however, conceded that a B rating is appropriate and the Tribunal, although not without some reservations, is prepared to accept that concession on the basis that a therapy program (for the purposes of RCS Question 19) was provided to the care recipient no more than 2 times per week.

102. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 393216, is B.

Appropriate classification level

103. According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned rating on RCS Question19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 77.69.. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 77.69 falls within the range of scores (namely, 69.61 - 81.00) for classification level 2.

104. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 393216, in accordance with the Classification Principles, is 2.

Care recipient 362793

105. The relevant documentary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care receipient 362793 are, in accordance with paragraph 63 above, limited to those which were in existence as at 22 December 1998 (the date on which the classification of that care recipient was renewed under s28-1(1) of the Act).

Question 1 - Communication

106. The applicant's relevant documentation (included within annexure 4 to Ms Bell's Statement (Exhibit A1)) includes:

* "Speech Pathology Communication Profile", dated 11 December 1998, which states that care recipient has a "mild/moderate" problem with understanding speech, a "mild" problem with oral expression, a "severe" problem with speech articulation, and is unable to read or to write (apart from signing his name);

* "Allied Health Assessments Summary" describes the care recipient's "functional problem" as "severe difficulties making needs known" and "mild to moderate problems comprehending instructions", and records the following "intervention plan": "Requires extensive support and encouragement to relax and take a deep breath before speaking - keep instructions short and simple";

* "Care Plan - High Level Care", dated 8 January 1998 and reviewed thereafter on 7 occasions until 12 December 1998, records that care recipient has "severe difficulties making needs known" and requires support for all communication activities, and prescribes, by way of "interventions", that "extensive support and encouragement" and "extra time" be given to care recipient when communicating;

* "Specific Care Plan - Communication", dated 11 December 1998, listing 10 "strategies to optimise communication";

* "Progress Notes" which record:

- 9 October 1998: "Requires encouragement, support and time to communicate. Able to answer simple questions. Sometimes difficult to understand. Interventions as per Care Plan appropriate and successful";

- 9 November 1998: "Continues to require extensive support as speech remains unintelligible with severe difficulties making needs known. Current interventions adequate in facilitating communication";

- 2 December 1998: "Severe difficulty in understanding [care recipient's] speech, requires extensive support - interventions adequate".

107. According to RCS Question 1 in the Classification Principles, a D rating is appropriate where the care recipient "requires assistance from facility staff on almost all occasions to communicate by translating or interpreting, or non-verbally - for example, signing, or using communication aids including talking boards or computers".. The abovementioned documentary material clearly confirms that care recipient 362793 has severe difficulties, and constantly requires assistance, with communication. The assistance that is required and provided, however, is, according to that material, not "translating or interpreting" and is not "on almost all occasions" of a "non-verbal" kind. On the contrary, a number of the "strategies to optimise communication" listed in the abovementioned "Specific Care Plan - Communication" are of a verbal kind, and none of them involves the use of "communication aids". The Tribunal is prepared to accept the evidence of Ms Bell and Ms Aslett that the strategies employed by the applicant's staff are more time-consuming and require more skill than the use of an interpreter, or a communication board. The fact remains, however, that those strategies do not fit the description of support required by RCS Question 1 for a D rating and, accordingly, the Tribunal finds that a D rating on RCS Question 1 is not appropriate in this case. The abovementioned documentary material does, however, establish that the applicant's staff are "required to spend additional time listening, speaking slowly and clearly, encouraging the care recipient to communicate or occasionally use non-verbal cues". That is the description of support that, according to RCS Question 1, makes a C rating on that Question appropriate. The Tribunal is prepared to accept that the support required by, and provided to, the care recipient is well above the minimum required for a C rating but, in accordance with the Guidelines for the interpretation of resident classification scale questions in Part 1 of Schedule 1 to the Classification Principles, that rating remains the appropriate rating because, as explained above, that support does not meet the criteria for a D rating.

108. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 1, in respect of care recipient 362793, is C.

Question 13 - Danger to self or others

109. The applicant's relevant documentation (included within annexure 4 to Ms Bell's Statement (Exhibit A1) and within Exhibit A2) includes:

* "Occupational Therapy Assessment", dated 17 December 1997, records medical diagnoses including anoxic cerebral injury, epilepsy and severe myoclonus;

* "Allied Health Assessments Summary" notes, as a "functional problem", "danger to self/others due to violent spasms/ unco-ordination";

* "Assessment Procedure for Restraint Use", dated 8 January 1997 (sic), notes "uncontrollable spasms (danger to self)" by reason of "myoclonus - severe";

* "Care Plan - High Level Care", dated 11 January 1998 and reviewed frequently up to 12 December 1998, notes only the following behavioural problems: "agitated, anxious, resistive"; the box indicating "Danger to self and others" is not ticked;

* "Progress Notes" which record:

- 9 October 1998: "Danger to self/others - current interventions effective in preventing injury to resident";

- 9 November 1998: "Danger to self/others: Requires attention at all times during interventions. Prove to begin to shake uncontrollably during procedures. Requires bed rails at all times. When in wheelchair requires lap and calf straps. Interventions appropriate. Needs met";

- 12 December 1998: "Danger to self and others: Uncontrollable jerking movements during interventions. Requires bed rails to be up at all times. Intervention successful".

110. RCS Question 13 clearly states that it is concerned with "behaviour" - more specifically, "high risk behaviour" eg "walking without required aids, leaning out of windows, self-mutilation and suicidal tendencies" - which involves an "imminent risk of harm", and it "does not apply where a care recipient has a medical condition that might lead to injury, for example, through fitting or loss of consciousness". Acts of "physical aggression" are also expressly excluded. As regards care recipient 362793, the abovementioned documentation indicates that there is a "danger to self/others" by reason of "violent" and "uncontrollable" spasms and "jerking movements". Those spasms and "jerking movements" are, however, symptoms or manifestations of the care recipient's diagnosed medical conditions of anoxic cerebral injury, epilepsy, severe myoclonus, rather than behaviours as such, and, accordingly, are outside the scope of RCS Question 13. The Tribunal notes, however, that certain problem behaviours, namely "agitated, anxious, resistive", were recorded in the Care Plan dated 11 January 1998 but the abovementioned documentation does not indicate that those behaviours in themselves involve danger to the care recipient or to others; indeed the relevant box for "Danger to self and others" in that Care Plan, in which those problem behaviours were recorded, was not ticked. Accordingly, in the Tribunal's opinion RCS Question13 is not applicable in the case of care recipient 362793.

111. The Tribunal finds, therefore, that the appropriate rating on RCS Question 13, in respect of care recipient 362793, is A.

Question 19 - Therapy

112. The applicant's relevant documentation (included within annexure 4 to Ms Bell's Statement (Exhibit A1) and within Exhibit A2) indicates that care recipient 362793 was individually assessed by qualified therapists as requiring occupational therapy (on 17 December 1997), speech therapy (on 30 December 1997), and physiotherapy (on 21 January 1998, reviewed on 17 December 1998) and includes the following:

* "Physiotherapy Assessment - Acquired Brain Damage", dated 21 January 1998, included the following "treatment plan" : "2-3 x/wk rehab - sitting, trunk work, standing practice. Use of tilt table 20 min. Active exercises on bed upper limbs/lower limbs bridging, stretching". It concluded: "New programme to be trialled for next 6 months if strategies enable co-operation";

* "Speech Pathology Assessment Form", dated 30 December 1997, included the following "plans/goals": "To gradually improve swallowing ability aiming to implement a transitional feeding program over next 6 months; to teach strategies to improve overall speech intelligibility"; and the following "action/intervention": "To be seen by locum speech pathologist 1-2 a week over next 3 months to work on above goals";

* "Allied Health Assessments Summary" regarding occupational therapy included the following "intervention plan": "To provide 2 x weekly relaxation sessions to learn control over movements to enable purposeful activity";

* "Progress Notes" which record:

- 17 April 1998 (physiotherapy): "3-monthly care plan review and update. Change - 1-2 x wk sessions as [care recipient] often declines input. Tilt tabling and sitting/standing continues";

- 5 and 11 May 1998 (speech pathology) : swallow stimulation therapy recorded;

- 12 May 1998 (occupational therapy): "Care plan reviewed - all problems and strategies still relevant. Therapy continues to be offered but due to resident being in bed or refusing to attend has been less frequently than 2x/week";

- 13 May 1998 (physiotherapy): "Nil changes to care plan, continue with current care";

- 14 May 1998 (speech pathology): "Care plan updated - resident has been refusing speech exercises to improve speech intelligibility. Intermittently will accept swallowing stimulation and trials. Continue with speech strategies, particularly taking a breath before speaking as helps gain control";

- 14 September 1998 (physiotherapy): "Bed exercise program devised for participation 2x/wk";

- 16 October 1998 (physiotherapy): "3-monthly review. Resident has bed exercise program written up for 2x/wk, however regularly refuses. Also, will no longer come to gym for tilt tabling. This is due to mental state of very low motivation. Will continue with bed exercises as able";

- 16 December 1998 (speech pathology): "12-monthly assessment review completed - little change in resident's overall abilities. Continues to inconsistently accept swallow stimulation therapy";

- 21 December 1998 (physiotherapy): "Full reassessment done. Resident to commence new programme. Strategies as per care plan to enable resident to co-operate";

* "Bed Exercise Program" (referred to in abovementioned progress notes dated 14 September 1998 and 16 October 1998) setting out various exercises for the upper limbs, trunk, and lower limbs.

113. The Tribunal is satisfied, on the basis of the relevant material before it, that physiotherapy, speech therapy and occupational therapy have been documented by the applicant as care needs of care recipient 362793 and that each of those kinds of therapy was provided to that care recipient by the applicant. The Tribunal is also satisfied that the care recipient's need for each kind of therapy was individually assessed by qualified therapists and that a "personalised therapy plan" (within the meaning of RCS Question 19) in respect of each kind of therapy was developed for the care recipient by each of the relevant qualified therapists. The Tribunal is also satisfied that, to the extent that each of the relevant therapy plans was implemented, that was done either by the relevant therapist or by the applicant's staff at the direction of that therapist.

114. That leaves for determination, for the purpose of determining the appropriate rating on RCS Question 19, the extent of the therapy program that was provided by the applicant to care recipient 362793. The Tribunal notes that each of the abovementioned therapy plans (as documented prior to 22 December 1998) was brief and general and, according to the progress notes, the care recipient was generally uncooperative and unwilling to accept the therapy offered to him. The abovementioned "Bed Exercise Program" was, however, detailed and specific in terms of the exercises set out therein, although there was no indication as to how long it would take the care recipient to complete that program on each occasion. In any event the care recipient, according to the progress notes, "regularly refused" to undertake that program. On the basis of the material before it, the Tribunal is not satisfied that the total amount of therapy in fact provided to the care recipient constituted the regular provision of a therapy program to him at least 3 times per week such as would satisfy the requirement for a C rating on RCS Question 19. A fortiori, a D rating on that Question is, in the Tribunal's opinion, inappropriate. On the other hand, the Tribunal is satisfied, on the basis of the abovementioned documentation, that the equivalent of a therapy program (within the meaning of RCS Question 19) was provided to the care recipient 1 to 2 times per week such as to satisfy the requirement for a B rating on that Question.

115. Accordingly, the Tribunal finds that the appropriate rating on RCS Question19, in respect of care recipient 362793, is B.

Appropriate classification level

116. According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 1, 13 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 77.51.. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 77.51 falls within the range of scores (namely, 69.61 - 81.00) for classification level 2.

117. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 362793, in accordance with the Classification Principles, is 2.

Care recipient 79403

118. The relevant documentaty records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care recipient 79403 are, in accordance with paragraph 63 above, limited to those which were in existence as at 5 January 1999 (the date on which the classification of that care recipient was renewed under s28-1(1) of the Act).

Question 1 - Communication

119. Care recipient 79403, who was born in 1909, had been diagnosed with Alzheimer's disease/dementia and was a resident in "The Village" within the applicant's Inglewood aged care facility. The applicant's relevant documentation (included within annexure 6 to Ms Bell's Statement (Exhibit A1)) includes:

* "Speech Pathology Assessment" dated 7 February 1995, reviewed on 9 December 1996 and 15 January 1998, records various communication deficits and concludes that "due to the nature of speech and comprehension deficit [care recipient] needs individual assistance with all activities", and contains the following "plan": "Speak slowly giving key words and ideas. Use gesture to help her understand";

* "Specific Care Plan - Communication" dated 15 January 1998 lists 10 "strategies to optimise communication";

* "Progress Notes" which record:

- 15 January 1998: 12-monthly communication review: care recipient's oral expression and comprehension deficits described;

- 4 March 1998: 3-monthly review: "resident continues to have difficulty expressing her needs and remains confused ... occasionally responds appropriately to simple questions/commands";

- 8 July 1998: 3-monthly communication review: "nursing staff reported that strategies as per care plan working well";

- 3 October 1998: 3-monthly communication review: "[care recipient] has impaired ability to express her needs due to dementia but strategies followed in specific care plan help minimize her problems";

- 31 December 1998: "[care recipient's] speech ... tends to be unintelligible ... has difficulty verbally expressing her needs ... has severe cognitive impairment ... requires extensive physical, verbal and concrete prompts for all activities".

120. The abovementioned documentary material clearly confirms that care recipient 79403 has severe difficulties, and constantly requires assistance, with communication. The assistance that is required and provided, as appears from that material, does not include "translating or interpreting" and is not "on almost all occasions" of a "non-verbal kind".. On the contrary, at least 5 of the 10 "strategies to optimise communication" listed in the abovementioned "Specific Care Plan - Communication" involve, or at least contemplate, the use of verbal cues by facility staff, and none of them refers specifically to "communication aids" such as "talking boards". The essential criteria for a D rating on RCS Question 1 are, therefore, not met. The Tribunal is, however, satisfied, on the basis of the abovementioned material, that the essential criteria for a C rating on RCS Question 1 - namely, "facility staff are required to spend additional time listening, speaking slowly and clearly, encouraging the care recipient to communicate or occasionally use non-verbal cues" - are very clearly met in the case of care recipient 79403.

121. Accordingly, the Tribunal finds that the appropriate rating on RCS Question1, in respect of care recipient 79403, is C.

Question 19 - Therapy

122. The applicant's relevant documentation (included within annexure 6 to Ms Bell's Statement (Exhibit A1)) indicates that care recipient 79403 was individually assessed by qualified therapists as requiring physiotherapy (on 23 December 1998) and occupational therapy (on 8 January 1998, reviewed on 31 December 1998), and includes the following:

* "Individual Occupational Therapy" program, dated 31 December 1998, of 15 minutes' duration 1-2 times per week, and group exercise 2 times per week

* 3 "Specific Care Plans" for occupational therapy related to different aspects of dementia, each care plan listing numerous "interventions" in order to maximise residual cognitive and memory abilities and to minimise disorientation, dated 8 January 1998, reviewed on 31 December 1998;

* "Progress Notes" record the following:

- 23 December 1998 (physiotherapy): "... Requires physio intervention 3 times weekly to address pain, posture, balance and joint range of movement";

- 31 December 1998 (occupational therapy): "Resident has been regularly attending the exercise/gross motor group 2-3xweekly ...will respond to an activity with extensive 1:1 support - Continue to encourage to attend current level of activities. Specific Care Plans have been reviewed"..

113. The Tribunal is satisfied, on the basis of the abovementioned material, that physiotherapy and occupational therapy have been documented by the applicant as care needs of care recipient 79403 and that each of those kinds of therapy was provided to that care recipient by the applicant. The Tribunal is also satisfied that the care recipient's need for each kind of therapy was individually assessed by qualified therapists. As regards occupational therapy, the abovementioned documentation includes a "personalised therapy plan" (within the meaning of RCS

Question 19) developed for the care recipient by a qualified occupational therapist. That documentation does not, however, include a "personalised therapy plan" or care plan in respect of physiotherapy for the care recipient (although the abovementioned "progress note" of 23 December 1998 refers to a requirement of physiotherapy 3 times per week). Accordingly, the available documentation in relation to physiotherapy does not meet the requirements of RCS Question 19 and will not be included for the purpose of determining the appropriate rating on that Question.

124. As regards occupational therapy, the abovementioned individual program was one of 15 minutes' duration 1-2 times per week, and the abovementioned "progress note" of 31 December 1998 records that the care recipient also regularly attended the exercise/gross motor group (duration unspecified) 2-3 times per week. In addition the 3 Specific Care Plans listed numerous interventions, although the frequency with which they were to be implemented was not specified. On the whole, however, the documentation in relation to occupational therapy is, in the Tribunal's opinion, just sufficient to indicate that an occupational therapy program was provided by the applicant to the care recipient, in accordance with a personalised therapy plan, at least 3 times per week, thereby making a C rating on RCS Question 19 appropriate. That documentation, however, is clearly insufficient to confirm that such a therapy program was provided daily, or at least 3 times per week in blocks of at least 30 minutes' duration, as is required for a D rating.

125. Accordingly, the Tribunal finds that the appropriate rating on RCS Question19, in respect of care recipient 79403, is C.

Appropriate classification level

126. According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 1 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 80.08.. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 80.08 falls within the range of scores (namely, 69.61 - 81.00) for classification level 2.

127. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 79403, in accordance with the Classification Principles, is 2.

Care recipient 193889

128. The relevant documentary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care recipient 193889 are, in accordance with paragraph 63 above, limited to those which were in existence as at 23 December 1998 (the date on which the classification of that care recipient was renewed under s28-1(1) of the Act).

Question 1 - Communication

129. Care recipient 193889, who was born in 1911, had been diagnosed with Alzheimer's disease/dementia and was a resident in "The Village" within the applicant's Inglewood aged care facility. English was her second language. The applicant's relevant documentation (included within annexure 9 to Ms Bell's Statement (Exhibit A1)) includes:

* "Allied Health Assessments Summary" notes that care recipient's functional problems include: "English as 2^nd language - moderate/severe expressive and receptive language difficulties ... Unable to communicate needs effectively. Speaks in [1^st language] ..." and records the following relevant "intervention plan": "Gain resident's attention. Supplement speech with gesture. Use objects and forced choice ... use key words in [1^st language]";

* "Speech Pathology Assessment" dated 20 January 1997, reviewed on 18 December 1997, 8 May 1998 and 21 December 1998, records various communication deficits and concludes: "Resident unable to express needs in English but uses gesture, facial expression and vocal interaction to express needs";

* "Speech Pathology Communication Profile", dated 21 December 1998, notes that care recipient has "severe problem" with understanding of speech, and oral expression, no useful reading skills and no functional written expression;

* "Team Assessment Sheet", dated 7 January 1998, notes the care recipient's 1^st language and indicates that interpretation is required "through family";

* "Allied Health Assessment Summary and Care Plan", dated 23 December 1998, records the following relevant "therapy/intervention plan". "Always greet by name and with smile. Use gestures, surroundings/objects to enhance understanding";

* "Care Plan - High Care", dated February 1998 and reviewed monthly thereafter, notes that care recipient requires support for all communication activities;

* "Progress Notes" which record:

- 2 March 1998: 3-monthly evaluation of communication;

- 23 September 1998: 3-monthly review of communication: "Physical prompting and a smile are used to ensure understanding";

- 15 December 1998: "Language barrier creates extreme difficulty ... to express needs or comprehend directions ... strategies implemented successfully for all activities";

- 21 December 1998: 12-monthly communication review: "... Nursing staff reported that resident can follow simple verbal commands, in context, only with gestural support and prompting ... Resident presented with extensive difficulty for communication related to English as second language and dementia and requires assistance to communicate at all times. ... Follow up from previous 12-monthly RCS review: Assessment using..... interpreter not considered useful to assist with resident's communication".

130. It appears clearly from the abovementioned documentary material that care recipient 193889, by reason of her dementia and the fact that English is her second language, has severe difficulties, and constantly requires assistance, with communication. The kinds of communication assistance provided by the applicant's staff, as appear from the documentation, involve a combination of verbal and physical prompts accompanied by a smile and encouragement, and do not consist almost entirely of non-verbal means. It does appear, however, that the use of an interpreter was initially contemplated but, as indicated in the "progress notes", that proposal was ultimately considered not to be useful and apparently was not implemented. Accordingly, the essential criteria for a D rating on RCS Question1 are not met. The Tribunal is however, satisfied, on the basis of the abovementioned material, that the essential criteria for a C rating on RCS Question 1 - namely, "facility staff are required to spend additional time listening, speaking slowly and clearly, encouraging the care recipient to communicate or occasionally use non-verbal cues" - are very clearly met in this case.

131. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 1, in respect of care recipient 193889, is C.

Question 13 - Danger to self or others

132. The applicant's relevant documentation (included with annexure 9 to Ms Bell's Statement (Exhibit A1)) includes:

* "Nursing History and Assessment", dated 26 December 1998, notes: "Safety compromised if resident becomes anxious or agitated. Increased difficulty negotiating her environment under these circumstances";

* "Allied Health Assessments Summary" notes that care recipient "tends to walk quickly without awareness of potential risks crossing garden beds, walking into fixed objects in the environment when agitated, restless and with a `mission'";

* "Team Assessment Sheet" and "Master Problem List", dated 7 January 1998, indicate no problem with danger to self/others;

* "Specific Care Plan" dated 20 December 1998, states the goal of preventing "the risk of danger to self/falls" and lists the following "interventions":

- "Supervise as much as possible whilst in garden";

- "Encourage to walk slowly - walk for a while with her to encourage this";

- "Encourage to stick to paths - redirect out of garden beds";

- "Bring in from outside on hot days. Give extra fluids, wash face with cool washer. Provide with some indoor activity";

- "Redirect away from other residents' personal space";

* "Progress Notes" which record:

- 6 February 1998: care recipient fell in garden sustaining "superficial scratches" on face and "small cut" to lips;

- 26 September 1998: care recipient fast pacing and tripped over paving and fell in garden sustaining "bump" and swelling on left side of forehead;

- 26 November 1998: care recipient fell in garden sustaining "deep laceration" to end of nose (which bled "profusely") and "superficial" laceration to left knee;

- 26 December 1998: "Dashes around in the gardens regardless of the weather and is at risk of dehydration and heat exhaustion without staff interventions. Is unaware of walking on uneven surfaces whilst walking through garden beds and has had falls sustaining injury ... Her pacing/ dashing behaviour also adds to risks of falls. Her intrusive behaviour of hovering near other residents puts her at risk of being given a shove by those who do not tolerate anyone invading their personal space".

133. The abovementioned documentation does not, in the Tribunal's opinion, support either a D, or even a C, rating on RCS Question 13. The Tribunal accepts that the abovementioned "Specific Care Plan" dated 20 December 1998 indicates that a problem of "danger to self" has been found to exist in the case of care recipient 193889 (although the Tribunal notes, earlier documentation indicated otherwise - see the abovementioned "Team Assessment Sheet" and "Master Problem List" dated 7 January 1998), and that "monitoring", and some "supervision", (within the meaning of RCS Question 13) are required in order to minimise the likelihood of recurrence of the relevant behaviour. The "interventions" listed in that Specific Care Plan are, however, of a general nature and are not specifically oriented towards the problem of "danger to self", and no details regarding their frequency and duration are specified. The Tribunal notes, furthermore, that the abovementioned "progress notes" do not record daily, or even frequent or regular, implementation of those interventions. The Tribunal also notes that the assessed "danger" in the case of this care recipient, as recorded in the abovementioned Specific Care Plan, is described as: "Intrusive/interfering at risk of retaliation. Dashing in garden. Outdoors in all weathers. Straying from garden paths".. These kinds of behaviours, and the interventions implemented to minimise them, may, of course, also overlap with the kinds of behaviours and interventions that are covered by RCS Question 9 ("Problem wandering or intrusive behaviour") on which, the Tribunal notes, a D rating has been determined in the case of this care recipient. It is also arguable, in the Tribunal's opinion, that the nature of the assessed danger in this case is not of the order of seriousness contemplated by RCS Question 13. The respondent has, nevertheless, accepted that a B rating on RCS Question 13 is appropriate in the case of care recipient 193889. The Tribunal is also prepared to accept that that rating is appropriate on the basis that the care recipient, by reason of the assessed danger to herself, requires "monitoring", but does not require "regular supervision" (within the meaning of RCS Question 13).

134. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 13, in respect of care recipient 193889, is B.

Question 19 - Therapy

135. The applicant's relevant documentation (included within annexure 9 to Ms Bell's Statement (Exhibit A1)) indicates that care recipient 193889 was individually assessed by qualified therapists as requiring occupational therapy (on 23 December 1997, reviewed on 21 December 1998) and physiotherapy (on 17 December 1998), and includes the following:

* "Allied Health Assessment Summary and Care Plan" regarding occupational therapy, dated 23 December 1998, included a "Therapy Intervention Plan" which listed the following interventions:

- encourage to attend exercise/gross motor group 3xweekly;

- 1:1 interaction - touch, walks in garden, cooking;

- encourage to attend musical activities and special events 1xweekly;

- involve in small activity groups eg cooking, watering the garden;

- provide 1:1 stimulation when possible eg taste, touch, foods, walks;

* 3 "Specific Care Plans" for occupational therapy related to different aspects of dementia, each care plan listing numerous interventions in order to maximise residual cognitive and memory activities and to minimise disorientation, dated 23 December 1977, reviewed on 21 December 1998;

* "Progress Notes" which record:

- 17 December 1998 (physiotherapy): "Loss of upper limb joint range of movement noted since last assessed (12 months previously) with associated increased stiffness generally ... gait requires training to correct side flex to the right and decreased step length and trunk rotation ... PLAN: group exercises and individual exercises to improve above problems 3xweek";

- 23 December 1998 (occupational therapy): "She needs 1:1 support to join and participate in organised activities. She attends the morning exercise groups, musical events/happy hour in the clubhouse and small cooking groups if not agitated and restless... Plan: continue to encourage to join daily activities in clubhouse and small groups `in-house'".

136. The Tribunal is satisfied, on the basis of the abovementioned material, that occupational therapy and physiotherapy have been documented by the applicant as care needs of care recipient 193889 and that each of those kinds of therapy was provided by the applicant to that care recipient. The Tribunal is also satisfied that the care recipient's need for each kind of therapy was individually assessed by qualified therapists. As regards occupational therapy, the abovementioned documentation includes a "personalised therapy plan" (within the meaning of RCS Question 19) developed for the care recipient by a qualified occupational therapist. That documentation does not, however, include a "personalised therapy plan" or care plan in respect of physiotherapy for the care recipient. Although the abovementioned "progress note" of 17 December 1998 refers briefly to a "plan" involving group and individual exercises 3 times per week, that brief reference does not, in the Tribunal's opinion, constitute a "personalised therapy plan" for the purposes of RCS Question 19.. Accordingly, the available documentation in relation to physiotherapy does not meet the requirements of RCS Question 19 and will not be included for the purpose of determining the appropriate rating on that Question.

137. As regards occupational therapy, the "personalised therapy program" comprised the abovementioned general Care Plan dated 23 December 1998. That Care Plan, and the progress note of the same date, refer to encouragement to attend exercises and activities, but records neither the frequency with which the care recipient in fact participated in those exercises and activities, nor their duration. The 3 Specific Care Plans listed numerous interventions to be implemented by the applicant's staff but, in the Tribunal's opinion, those interventions do not constitute a "therapy program" as such. The abovementioned documentation is insufficient to satisfy the Tribunal that an occupational therapy "program" was in fact provided to the care recipient at least 3 times per week and, accordingly, a D or a C rating on RCS Question 19 is not appropriate. The Tribunal notes, however, that the respondent accepts that a B rating is appropriate on that Question and the Tribunal is prepared to find accordingly on the basis that the equivalent of an occupational therapy program was in fact provided to the care recipient 1 or 2 times per week.

138. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 193889, is B.

Appropriate classification level

139. According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 1, 13 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 75.88.. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 75.88 falls within the range of scores (namely, 69.61-81.00) for classification level 2.

140. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 193889, in accordance with the Classification Principles, is 2.

Care recipient 53851

141. The relevant documenary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care recipient 53851 are, in accordance with paragraph 63 above, limited to those which were in existence as at 3 February 1999 (the date on which the classification of that care recipient was renewed under s 28-1(1) of the Act).

Question 1 - Communication

142. As previously mentioned (see paragraphs 49 and 50 above), the respondent has conceded that the appropriate rating on RCS Question 1 is D, and, having regard to the relevant documentary material, that concession was, in the Tribunal's opinion, rightly made.

143. Accordingly, the Tribunal confirms its abovementioned finding that the appropriate rating on RCS Question 1, in respect of care recipient 53851, is D.

Question 12 - Emotional dependence

144. Care recipient 53851, who was born in 1914, had been diagnosed with dementia and chronic anxiety and depression, and was a resident in "The Village" within the applicant's Inglewood aged care facility. The applicant's relevant documentation (included within annexure 10 to Ms Bell's Statement (Exhibit A1) and within Exhibit A2) includes:

* "Behaviour Chart", covering a period of 7 days in January 1998, which records that, among other problem behaviours, "emotional dependence: active and passive resistance to activities of daily living" occurred on several occasions each day and was generally effectively managed by particular interventions;

* "Master Problem List" which records that problem of "emotional dependence" was identified on 17 January 1999;

* "Specific Care Plan", dated 17 January 1999, to minimise and manage behaviour described as "Emotional Dependence - Passive and Active Resistance and Withdrawal", lists 10 "interventions" including:

- "provide verbal and physical reassurance";

- "explain verbally and give physical guidance...with all initiated activities";

- "encourage to join in organised activities' with other residents";

* "Progress Notes" which record:

- 17 January 1999 (12-monthly review): "Emotional Dependence related to altered mental state, secondary to Dementia. Resident is passively and actively resistant and withdrawn. Strategies as per Specific Care Plan are ongoing to help [resident] to maintain social skills and contact, and understanding of activities to gain her cooperation with activities of daily living and inclusion into activities".

145. The Tribunal accepts that the abovementioned documentation records that care recipient 53851 has been assessed as engaging in problem behaviour described as "emotional dependence - passive and active resistance, and withdrawal" which requires "monitoring" (within the meaning of RCS Question 12) and that appropriate interventions were determined and listed in the Specific Care Plan dated 17 January 1999 for minimising and managing that behaviour. The abovementioned "progress note" of 17 January 1999 merely records that those interventions are "ongoing". That documentation, however, is not, in the Tribunal's opinion, sufficiently comprehensive or detailed to enable it to find that the care recipient's emotional dependence also required "supervision" (within the meaning of RCS Question 12) and the implementation of interventions on a daily basis or even on a regular, though less than daily, basis, such as would make a rating of D or C on that Question appropriate. The Tribunal is, nevertheless, satisfied, on the basis of the available documentation, that appropriate interventions were required to be implemented at least occasionally and that, therefore, a B rating of RCS Question 12 is appropriate.

146. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 12, in respect of care recipient 53851, is B.

Question 19 - Therapy

147. The applicant's relevant documentation (included within annexure 10 to Ms Bell's Statement (Exhibit A1)) indicates that care recipient 53851 was individually assessed by qualified therapists as requiring physiotherapy (on 23 January 1998, reviewed on 3 February 1999) and occupational therapy (on 21 January 1998, reviewed on 15 January 1999), and includes the following:

* "Allied Health Assessment Summary and Care Plan" in relation to physiotherapy, dated 3 February 1999, identifies functional problems of unstable gait and risk of further deterioration in balance and exercise tolerance and loss of general function, and states the following "Therapy Intervention Plan": "Carers to walk with resident daily in the garden. Therapy assistants to walk with resident in garden over uneven ground and on slopes to challenge her balance x 3/wk. Provide opportunity to attend exercise group x 4-5/wk";

* "Occupational Therapy Plan", dated 22 January 1998, prescribes the following therapy program; "Maximize current functional ability to participate in self-care through provision of specific therapeutic strategies and purposeful activities:

- 1:1 basis - reminiscence, sensory stimulation, aromatherapy: weekly - 20 minutes;

- small group - to maximize social skills, communication and cognition, concentration: fortnightly - 20 minutes;

- larger groups - gross motor activities, to maximize use of upper limbs for self-care, to perform past life roles, demonstrate appropriate social skills: daily - 15 minutes 1:1;

- cultural/spiritual links - weekly church service - 35 minutes; fortnightly [nationality] socialisation group - 1 hour with 1:1 facilitation 15 minutes;

- when available - massage - weekly informal as appropriate";

* "Occupational Therapy Plan" review, dated 15 January 1999, states:

- "[Nationality] community group 1 x fortnightly, gross motor activities 2- 3 x weekly, church weekly, musical entertainment/therapy - 1 hour 1 x weekly";

* "Individual Therapy / Programme Profile", dated 15 January 1999, refers to the following occupational therapy program;

- individual therapy comprising "sensory stimulation", "orientation", reminiscence/emotional support/validation": 2 x weekly or "whenever possible";

- group activities comprising exercise, activity group, religious, entertainment: 2 x weekly; [nationality] group: 1 x fortnightly;

* "Specific Care Plans" for occupational therapy related to different aspects of dementia, listing numerous "interventions" in order to maximise residual cognitive and memory abilities and to minimise disorientation, dated 23 January 1998 and 15 January 1999:

* "Progress notes" which record:

- 15 January 1999: "Resident attends [nationality] communication/ socialisation group each fortnight, gross motor activities 2-3x weekly, and is encouraged to attend musical events/concerts and church during the week. She appears less alert and motivated than previously, with activity tolerance. She tends to be restless and needs 1:1 support to remain and participate. Resident enjoys listening to music and responds to touch and affection. Plan: continue to encourage to attend above activities to promote functional and socialisation skills and cultural links. Specific Care Plans have been reviewed".

148. The Tribunal is satisfied, on the basis of the abovementioned material, that physiotherapy and occupational therapy have been documented by the applicant as care needs of care recipient 53851 and that each of those kinds of therapy has been provided to that care recipient by the applicant. The Tribunal is also satisfied that the care recipient's need for each kind of therapy was individually assessed by qualified therapists, and that a "personalised therapy plan" (within the meaning of RCS Question 19) was developed for the care recipient by each of the appropriate therapists - namely, the abovementioned "Occupational Therapy Plan" dated 22 January 1998 and reviewed on 15 January 1999 and "Individual Therapy/Programme Profile" dated 15 January 1999 (for occupational therapy), and the "Allied Health Assessment Summary and Care Plan" dated 3 February 1999 (for physiotherapy).

149. The Tribunal is also satisfied that therapy has been provided to care recipient 53851 in accordance with the abovementioned therapy plans/programs, either by the relevant therapist or by the applicant's staff at the direction of that therapist. As regards the frequency with which that therapy was provided, and its duration on each such occasion, the Tribunal is not satisfied by the abovementioned documentation that a "therapy program" (within the meaning of RCS Question 19) - whether of occupational therapy or of physiotherapy, or both - was in fact provided to the care recipient either daily, or at least 3 times per week in blocks of at least 30 minutes' duration, as is required to support a D rating on that Question. The Tribunal is, however, satisfied that therapy was provided to the care recipient, in accordance with the abovementioned therapy plans, at least 3 times per week (but not daily or in blocks at least 30 minutes' duration) and that, accordingly, a C rating on that Question is thereby supported. The Tribunal notes that various group activities referred to in the abovementioned "Occupational Therapy Plan", such as attendances at church and at the relevant [nationality] socialisation group, are covered by RCS Question 15 ("Social and human needs - care recipient") on which a C rating has been determined, but nevertheless is of opinion that occupational therapy and physiotherapy, as covered by RCS Question 19 alone, were provided to the care recipient with such frequency as to make a C rating on that Question appropriate.

150. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 53851, is C.

Appropriate classification level

151. According to the table of "scores" set out in Part 2 of Schedule1 to the Classification Principles, the abovementioned ratings on RCS Questions 1, 12 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 78.97.. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 78.97 falls within the range of scores (namely 69.61 - 81.00) for classification level 2.

152. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 53851, in accordance with the Classification Principles, is 2.

Care recipient 114387

153. The relevant documentary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care recipient 114387 are, in accordance with paragraph 63 above, limited to those which were in existence as at 3 February 1999 (the date on which the classification of that care recipient was renewed under s28-1(1) of the Act).

Question 1 - Communication

154. Care recipient 114387, who was born in 1916, had been diagnosed with multi infarct dementia and was a resident in "The Village" within the applicant's Inglewood aged care facility. The applicant's relevant documentation (included within annexure 12 to Ms Bell's Statement (Exhibit A1)) includes:

* "Allied Health Assessments Summary" notes that care recipient's functional problems include: "unable to make needs known verbally";

* "Speech Pathology Assessment Form", dated 11 April 1995 and reviewed regularly up to 9 January 1999, notes: "Resident unable to express needs verbally or follow simple verbal commands...";

* "Speech Pathology Communication Profile", dated 9 January 1999, notes that the care recipient has "severe problem" with understanding of speech, and oral expression, no useful reading skills and no functional written expression;

* " Care Plan - High Care", dated 16 January 1998 and reviewed monthly up to 8 January 1999, specifies the following communication "interventions": "Touch to gain attention; greet... by name; speak in a calm, friendly manner; physically guide through all activities; use gesture, facial expression and pointing to help... understand and gain... cooperation; read resident's body language to interpret needs";

* "Specific Care Plan - Communication", dated 9 January 1999, lists 9 strategies to optimise communication, including: " Talk to resident using short sentences or single key words"; "Repeat and rephrase as required"; "Place key/important words at the end of the sentence...";

* "Progress Notes" which record:

- 29 January 1998: "... for all interactions - use name and encourage eye contact; use simple commands with physical prompts and gesture, observe body language and facial expression, use social speech eg `how are you' and give resident time to respond...";

- 11 November 1998: "3 - monthly Communication Review: Nursing staff reported that strategies as per care plan are working well to meet resident's needs";

- 9 January 1999: "12-monthly RCS Communication Review: Resident continues to present with a severe expressive language and comprehension deficit related to dementia. Recommendation: optimise communication following strategies on Specific Care Plan..."..

155. It appears clearly from the abovementioned documentary material that care recipient 114387, by reason of dementia, has severe difficulties, and constantly requires assistance, with communication. The kinds of communication assistance provided by the applicant's staff, as appear from the documentation, involve a combination of verbal and physical prompts together with gestures, and do not consist almost entirely of non-verbal means or involve translating or interpreting. Indeed most of the strategies listed in the abovementioned Specific Care Plan involve, or at least contemplate, the use of verbal communication with the care recipient. Accordingly, the essential criteria for a D rating on RCS Question 1 are not met. The Tribunal is, however, satisfied, on the basis of the abovementioned material, that the applicant's staff are required to spend considerable additional time listening, speaking slowly and clearly, encouraging the care recipient to communicate, and frequently to use non-verbal cues, and that, accordingly, the criteria for a C rating on RCS Question 1 are very clearly met in this case. The fact remains, however, that the kinds of communication assistance provided to the care recipient do not satisfy the prescribed requirements for a D rating on that Question.

156. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 1, in respect of care recipient 114387, is C.

Question 19 - Therapy

157. The applicant's relevant documentation (included within annexure 12 to Ms Bell's Statement (Exhibit A1)) indicates that care recipient 114387 was individually assessed by qualified therapists as requiring physiotherapy (on 21 January 1998, reviewed on 19 January 1999) and occupational therapy (on 12 January 1998, reviewed on 20 January 1999), and includes the following:

* "Allied Health Assessment Summary and Care Plan" in relation to physiotherapy, dated 19 January 1999, identifies functional problems of "altered posture and gait pattern...risk of loss of exercise tolerance...loss of joint range of movement" and states the following "Therapy Intervention Plan": "Walking programme x 7/wk outside in garden accompanied by carer or therapy assistant (x 2 people); passive movements and stretches to all 4 limbs; walk on different surfaces and slopes to challenge resident's balance";

* "Allied Health Assessment Summary and Care Plan" in relation to occupational therapy, dated 20 January 1999, identifies various functional problems including "risk of sensory deprivation...unable to initiate purposeful activity - mobility restrictions" and sets out a "Therapy Intervention Plan" which includes: "To involve in sensory stimulation activities in which a positive response has been shown eg food tasting, eating, olfactory and tactile input...3x/week to elicit automatic motor responses in resident...to maintain upper limb mobility and purposeful movements";

* "Specific Care Plans" in respect of occupational therapy listing numerous interventions to maximise residual cognitive and memory abilities and ability to interact with environment, and to minimise disorientation, dated January 1998 and reviewed in January 1999;

* "Progress Notes" which record:

- 20 January 1999 (physiotherapy): "Full physiotherapy assessment completed...see Allied Health care plan...;

- 20 January 1999 (occupational therapy): "Full OT reassessment conducted... Refer to Allied Health Summary Plan and Assessment ...Outcome from assessment - [care recipient] has been receiving 1:1 assistance 4xweek for breakfast to maintain ADL skills and purposeful activity. This is to be maintained. In addition it was found that sensory stimulation - in particular tactile, taste, smell improved alertness levels and posture. Therapy to be increased to include regular sensory stimulation on 1:1 basis and balloon activities on 1:1 basis to aim at maintaining mobility in upper limbs and involvement in purposeful activity, at least 3x/week"..

158. The Tribunal is satisfied, on the basis of the abovementioned material, that physiotherapy and occupational therapy have been documented by the applicant as care needs of care recipient 114387 and that each of those kinds of therapy has been provided to that care recipient by the applicant. The Tribunal is also satisfied that the care recipient's need for each kind of therapy was individually assessed by qualified therapists, and that a "personalised therapy plan" (within the meaning of RCS Question 19) was developed for the case recipient by each of the appropriate therapists - namely, the abovementioned Allied Health physiotherapy and occupational therapy care plans dated January 1999. As regards speech therapy, it appears that no personalised therapy plan/program was developed for the care recipient and that the care provided by the speech pathologist was directed at the functional problem of communication deficit (which is covered by RCS Question 1 - see paragraphs 154-156 above).

159. The Tribunal is also satisfied that therapy has been provided to care recipient 114387, in accordance with the abovementioned therapy care plans, either by the relevant therapist or by the applicant's staff at the direction of that therapist. As regards the frequency with which that therapy was provided, and its duration on each such occasion, the abovementioned documentation is insufficient to satisfy the Tribunal that a "therapy program" (within the meaning of RCS Question 19) - whether of occupational therapy or of physiotherapy, or both - was in fact provided to the care recipient either daily, or at least 3 times per week in blocks of at least 30 minutes' duration, as is required to support a D rating on that Question. The Tribunal is, however, satisfied that therapy was provided to the care recipient, in accordance with the abovementioned therapy care plans, at least 3 times per week (but not daily or in blocks of at least 30 minutes' duration) and that, accordingly, a C rating on that Question may be supported. The Tribunal notes that the abovementioned documentation indicates that the relevant therapy care plans were reviewed no more frequently than on an annual basis. The Tribunal also notes that RCS Question 19 in Part 1 of Schedule 1 to the Classification Principles states that "it is the role of the therapist to regularly evaluate, by assessment, the effectiveness of the therapy program".. That statement does not, however, specify the frequency with which the effectiveness of a therapy program is to be evaluated by the relevant therapist. The Tribunal accepts that "regular" review and re-evaluation of the effectiveness of a therapy program by the relevant qualified therapist is required by RCS Question 19 but, in the Tribunal's opinion, the appropriate frequency with which such "regular" reviews are conducted by the therapist is a matter for the expert judgment of the therapist having regard to such considerations as the needs of the particular care recipient, the nature of the therapy provided and the goals and expected outcomes thereof. The Tribunal does not accept that, in order to support a D or C rating on RCS Question 19, a review and re-evaluation of the effectiveness of the relevant therapy plan must necessarily be conducted by the therapist more frequently than every 12 months in every case. In the present case, the Tribunal is satisfied that an annual review and re-evaluation of the effectiveness of the relevant therapy care plans, as determined by the particular therapists, was appropriate and suffices for the purpose of the determination of a C rating on RCS Question 19.

160. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 114387, is C.

Appropriate classification level

161. According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 1 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 80.95. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 80.95 falls within the range of scores (namely, 69.61 - 81.00) for classification level 2.

162. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 114387, in accordance with the Classification Principles, is 2.

Care recipient 237212

163. The relevant documentary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care recipient 237212 are, in accordance with paragraph 63 above, limited to those which were in existence as at 21 January 1999 (the date on which the classification of that care recipient was renewed under s 28-1(1) of the Act).

Question 1 - Communication

164. Care recipient 237212, who was born in 1905, had been diagnosed with dementia. The applicant's relevant documentation (included within annexure 15 to Ms Bell's Statement (Exhibit A1) and within Exhibit A2) includes:

* "Speech Pathology Communication Profile, dated 6 January 1999, notes that the care recipient has "moderate problem" with understanding of speech, oral expression and speech (articulation), and "severe problem" with hearing (hearing aid worn in right ear);

* "Care Plan - High Level Care", dated 26 March 1998 and reviewed frequently up to 15 January 1999, notes that the care recipient has "moderate speech and comprehension deficit" related to dementia and requires support for all communication activities; and that care recipient attends "high level conversation group";

* "Specific Care Plan - Communication", dated 6 January 1999, lists 14 strategies to optimise communication, including: "Talk to resident using short sentences, or single key words, repeat and clarify"; "Engage in conversation as much as possible during the day"; "Ask `open-ended' questions to encourage conversation...";

* "Progress Notes" which record:

- 9 February 1998: strategies used for maximising communication referred to, including: "If spoken message is not understood, write down the message...and point to each word as it is spoken";

- 14 February 1998: "Communicates verbally making needs known with encouragement from staff and physical prompts. Staff ensure her hearing aid is on and use short clear instructions and repeat";

- 9 March 1998: "...communication problems seem more pronounced now...She is very frustrated when she can't make her meaning or request known...She keeps trying to find the words rather than using gestures to compensate";

- 1 July 1998: "No change in communication status since initial assessment. Continues to present with moderate expressive and receptive language impairment and severe hearing loss...Staff to continue to provide considerable support and prompting using strategies to maximise communication effectiveness...";

- 7 November 1998: as above;

- 11 January 1999: "Continues with deficit, has some comprehension and severe hearing loss. Staff follow indications on Specific Care Plan and monitor effect. Communication is improved with staff encouragement and Care Plan strategies being followed".

165. The abovementioned documentation confirms that care recipient 237212, by reason of dementia and severe hearing loss, had moderate difficulties with, and required considerable assistance with, communication. The kinds of communication assistance provided by the applicant's staff, as appear from the documentation, involve a combination of verbal and physical prompts together with encouragement; and ensuring that the care recipient is wearing her hearing aid. The documentation indicates that the care recipient tried to communicate verbally on almost all occasions and, furthermore, most of the strategies listed in the abovementioned Specific Care Plan involve, or at least contemplate or assume, the use of verbal communication with the care recipient. The essential criteria for a D rating on RCS Question 1 - namely, "care recipient requires assistance from facility staff on almost all occasions to communicate by translating or interpreting, or non-verbally..." - are thus clearly not met. This case does, however, squarely fall within the criteria for a C rating on this Question - namely, "facility staff are required to spend additional time listening, speaking slowly and clearly, encouraging the care recipient to communicate or occasionally use non-verbal cues".

166. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 1, in respect of care recipient 237212, is C.

Question 12 - Emotional dependence

167. The applicant's relevant documentation (included within annexure 15 to Ms Bell's Statement (Exhibit A1)) includes:

* "Care Plan - High Level Care", dated 26 March 1998 and frequently reviewed up to 15 January 1999, notes that the care recipient has the following behavioural problems: "Extreme emotional dependence"; "Confused, disorientated..., anxious", and that these are demonstrated extensively ("day and night"). Several "interventions" are specified, including:

- "Explain procedure before starting...";

- "Face when speaking to her";

- "Touch, smile and reassure (verbal and physical prompts)";

* "Behaviour Chart", dated 11 February 1998 and reviewed on 7 January 1999, indicates certain kinds of problem behaviour. The behavioural problems indicated are:

- "Noisy": Talks and screams in her sleep, screams loudly...";

- "Other Behaviour: Confused, Disorientated..., Anxious".

"Emotional Dependence" is not indicated as a problem behaviour;

* "Progress Notes" which record:

- 11 January 1999: "Emotional Dependence - Is at risk if social isolation. Staff make sure that she is included in all activities. 1:1 support where possible...spend time talking to resident";

- 17 January 1999: "Emotional Dependence - Staff ensure that resident is included in ward activities and placed so that she can observe staff moving about and performing daily tasks. Resident appreciates 1:1 interaction with staff and relatives, likes to reminisce. Resident feels included following these guidelines".

168. RCS Question 12 is, according to its terms, limited to certain behaviours, namely, active and passive resistance, attention seeking, manipulative behaviour, withdrawal. The abovementioned documentation does not, in the Tribunal's opinion, indicate that any of those particular behavioural problems existed in the present case. The various behavioural problems referred to in that documentation - namely, noisy, confused, disorientated, anxious, at risk of social isolation - are, in the Tribunal's opinion, covered by other RCS Questions, namely, Questions 10 ("Verbally disruptive or noisy"), 14 ("Other behaviour") and 15 ("Social and human needs - care recipient"), on which, the Tribunal notes, ratings of C, D and C, respectively, have been determined in this case. In the Tribunal's opinion, RCS Question 12 is not applicable in this case.

169. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 12, in respect of care recipient 237212, is A.

Question 19 - Therapy

170. The applicant's relevant documentation (included within annexure 15 to Ms Bell's Statement (Exhibit A1)) indicates that care recipient 237212 was individually assessed by qualified therapists as requiring speech therapy (on 9 February 1998, reviewed on 6 January 1999), physiotherapy (on 13 January 1999), and occupational therapy (on 18 January 1999), and includes the following:

* "Speech Pathology Assessment Form", dated 9 February 1998 and reviewed on 6 January 1999, lists interventions to maximise the care recipient's communication skills, including: "To attend 1 x weekly high level conversation group for 1½ hours to promote conversation and social interaction skills";

* "Allied Health Assessment Summary and Care Plan (Speech Pathology)", dated 13 January 1999, records a functional problem described as "Communication deficit - moderate comprehension and expressive loss" and prescribes the following "Therapy Intervention Plan": "Weekly moderate level conversation group in blocks; promote word finding, reading sentences and comprehension, initiation";

* "Allied Health Assessment Summary and Care Plan (Physiotherapy)", dated 13 January 1999, records the following functional problems: "Very poor weightbearing ...; unable to walk; dependent transfers; reduced joint range of movement; risk of reduced stamina and functional level", and prescribes the following "Therapy Intervention Plan": "Transfer using Sara hoist ...; staff to push resident in wheelchair; monitor and adapt transfers; monitor joint range of movement; Encourage active movement of all 4 limbs; Attend exercise group x1/week";

* "Allied Health Assessment Summary and Care Plan (Occupational Therapy)", dated 18 January 1999, prescribes a "Therapy Intervention Plan" which includes: "Activities, variety - exercise group x1/week; cooking x1/week; communication x1/week; 1:1 prime time; entertainment x1/week; outings x1/week";

* "Care Plan - High Level Care": review dated 15 January 1999 states that care recipient attends high level conversation group;

* "Progress Notes" which record:

- 9 February 1998: "Therapy: To attend 1 x weekly 1½ hour high level conversation group ...";

- 1 July 1998: "... Continues to attend high level conversation group 1 x weekly for 1½ hours ...";

- 1 July 1998: "... Physiotherapy consists of monitoring transfers and attendance at activity/exercise group x1/wk";

- 1 July 1998: "[Care recipient] continues to attend dining room for meals, attend all appropriate activities and entertainments. Has settled well";

- 6 January 1999: "... Resident to participate in weekly communication group, goals for reading, for comprehension, conversation initiation and word finding strategies".

171. The Tribunal is satisfied, on the basis of the abovementioned material, that speech therapy, physiotherapy and occupational therapy have been documented by the applicant as care needs of care recipient 237212 and that each of those kinds of therapy has been provided to that care recipient by the applicant. The Tribunal is also satisfied that the care recipient's need for each kind of therapy was individually assessed by qualified therapists, and that a "personalised therapy plan" (within the meaning of RCS Question 19) was developed for the care recipient by each of the appropriate therapists, namely, the 3 abovementioned Allied Health Care Plans, dated January 1999.

172. The Tribunal is also satisfied that therapy was provided to care recipient 237212, in accordance with the abovementioned care plans, either by the relevant therapist or by the applicant's staff at the direction of that therapist. As regards the frequency with which such therapy was provided to the care recipient, the Tribunal is satisfied, on the basis of the documentation, that a therapy program (including the 3 abovementioned kinds of therapy) was provided to the care recipient 3 or more times per week, but not as frequently as daily. As regards the duration of each therapy session, the only specific reference to duration is that in relation to the weekly conversation group, namely, 1½ hours. The Tribunal also notes that several of the activities referred to in the occupational therapy care plan are covered by RCS Question 15 ("Social and human needs - care recipient") on which a C rating has been determined for this care recipient. Accordingly, the information contained in the abovementioned documentation is not sufficient to satisfy the Tribunal that a therapy program (for the purposes of RCS Question 19) was provided to the care recipient at least 3 times per week in blocks of at least 30 minutes' duration, such as would satisfy the essential criteria for a D rating on that Question. As mentioned above, however, the Tribunal is satisfied, on the basis of the documentation before it, that a therapy program was provided to the care recipient with sufficient frequency to support a C rating on RCS Question 19.

173. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 237212, is C.

Appropriate classification level

174. According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 1, 12 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 77.17. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 77.17 falls within the range of scores (namely, 69.61 - 81.00) for classification level 2.

175. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 237212, in accordance with the Classification Principles, is 2.

Care recipient 160139

176. The relevant documentary records of the applicant to which the Tribunal will have regard for the purpose of making the necessary findings in relation to care recipient 160139 are, in accordance with paragraph 63 above, limited to those which were in existence as at 18 March 1999 (the date on which the classification of that care recipient was renewed under s 28-1(1) of the Act).

Question 5 - Toileting

177. As previously mentioned (see paragraphs 49 and 50 above), the applicant has conceded that the appropriate rating on RCS Question 5 is A and the Tribunal, having regard to the circumstances (referred to in paragraph 49 above) in which that concession was made, is prepared to accept that concession.

178. Accordingly, the Tribunal confirms its abovementioned finding that the appropriate rating on RCS Question 5, in respect of care recipient 160139, is A.

Question 9 - Problem wandering or intrusive behaviour

179. Care recipient 160139, who was born in 1914, had been diagnosed with dementia and paranoia and was a resident in "The Village", a special secure dementia unit within the applicant's Inglewood aged care facility, from November 1996. The applicant's relevant documentation (included within annexure 17 to Ms Bell's Statement (Exhibit A1) and within Exhibit A2) includes:

* "Extended Care Transfer Form", dated 25 November 1996, and "Social Summary", dated 26 November 1996, regarding the care recipient's history of absconding from other aged care facilities, and transfer to "The Village";

* "Nursing History and Assessment", dated 27 November 1996, notes a history of scaling fence and absconding from previous home;

* "Master Problem List" records that care recipient's problem of "Potential for Absconding", was identified on 8 April 1998;

* "Care Plan - High Level Care", dated 8 April 1998 and frequently reviewed up to 27 February 1999, notes various behavioural problems, including "wandering";

* "Specific Care Plan" for the problem of "attempting to abscond", which lists 8 "interventions" in order to "minimise behaviour";

* "Progress Note", dated 26 February 1999, records: "Potential to abscond, Secure area to live in, enables resident to mobilise freely and minimises attempts to abscond. Strategies as per Specific Care Plan effective".

180. It appears from the abovementioned documentation that the care recipient's absconding behaviour ceased after his transfer to "The Village" in 1996, there being no recorded episodes of absconding or attempting to abscond in that documentation. The Tribunal accepts, however, that, given the care recipient's history of such behaviour, the potential for its recurrence existed and, accordingly, it was appropriate to put in place interventions for the purpose of preventing the recurrence of such behaviour. The Tribunal notes, on the other hand, the evidence of Ms Bell, and especially the evidence of Ms Aslett, regarding the "therapeutic environment" of "The Village" which of itself contributed greatly towards the minimisation of the potential for the care recipient's previous absconding behaviour to recur. The Tribunal acknowledges that the applicant's staff also had an important role to play in ensuring that that behaviour did not recur but that, given the very beneficial effect of the environment of "The Village", their necessary role was substantially less than would probably have been the case if the care recipient had been located in a less favourable environment. The Tribunal notes, in this connection, that the interventions listed in the abovementioned Specific Care Plan were mostly of a standard or general nature, and their frequency was not specified.

181. The Tribunal is satisfied, on the basis of the material and evidence before it, that care recipient 160139, by reason of his history of absconding and the potential for that behaviour to recur, required "monitoring" (within the meaning of RCS Question 9) but that, owing to the environment of "The Village" where the care recipient resided, he did not require "supervision" (within the meaning of RCS Question 9) by the applicant's staff on a frequent or a regular basis. Accordingly, a D or a C rating on RCS Question 9 is not supported by that material and evidence. The Tribunal is of opinion, however, that a B rating on that Question can be justified on the basis that ongoing "monitoring" was required in order that appropriate interventions might be taken to prevent the recurrence of his absconding behaviour.

182. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 9, in respect of care recipient 160139, is B.

Question 13 - Danger to self and others

183. The applicant's relevant documentation (included within annexure 17 to Ms Bell's Statement (Exhibit A1)) includes:

* "Nursing History and Assessment", dated 27 November 1996, notes a history of "suspicion and paranoia about additives to diet and fluids relating to time in concentration camp", and refers to "self-initiated fasts";

* "Master Problem List" records that the care recipient's problem of "Danger to Self - Self-initiated fasting" was identified on 8 April 1998;

* "Care Plan - High Level Care", dated 8 April 1998 and frequently reviewed up to 27 February 1999, notes various behavioural problems including "Self-initiated fasts" and lists the following "interventions" to manage that behaviour:

- "Report to Registered Nurse if [care recipient] refuses meals and drinks";

- "Registered Nurse to stipulate time of fast and agreement with [care recipient] to finish fast on a given time";

- "Ensure he continues to drink during fast";

- "3 days maximum for fast";

* "Progress Notes" which record:

- 8 April 1998: "[Care recipient] started his fast this morning. Took his orange juice with medications and had a hot Milo. Daughter brought in some chicken broth which he enjoyed. Fast lasted 4 hours";

- 13 December 1998: "Care plan reviewed. [Care recipient] is at times now emptying part of his drinks onto floor. Encourage to complete all drinks, supervise at all times whilst he is drinking and be prepared to intervene ...";

- 25 January 1999: "Intermittent drinking. No (sic) clinically dehydrated ...";

- 26 January 1999: "[Care recipient] only very occasionally fasts now. His fasting has never become a problem";

- 24 February 1999: "... No recent self-imposed fasting episodes ...";

- 26 February 1999: "12-monthly review. Potential risk to health with self-imposed fasting. Strategies effectively have minimised episodes and manage them effectively if they occur"..

184. The abovementioned documentation records only one specific episode of fasting (namely, on 8 April 1998) although there are subsequent general references to occasional fasting episodes in the past. That documentation does not satisfy the Tribunal that such fasting behaviour was ever a significant problem in relation to the care recipient or that it ever constituted the kind of "high risk behaviour" which creates an "imminent risk of harm" with which RCS Question 13 is concerned. In the Tribunal's opinion RCS Question 13 is inapplicable in this case.

185. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 13, in respect of care recipient 160139, is A.

Question 19 - Therapy

186. The applicant's relevant documentation (included within annexure 17 to Ms Bell's Statement (Exhibit A1)) indicates that care recipient 160139 was individually assessed by qualified therapists as requiring speech therapy (on 18 December 1996, reviewed frequently up to 10 February 1999), physiotherapy (on 9 March 1998, reviewed on 23 February 1999), and occupational therapy (on 19 January 1997, reviewed on 31 March 1998 and 5 March 1999), and includes the following:

* "Speech Pathology Assessment Form", dated 8 December 1996 and reviewed frequently thereafter, lists interventions to maximise the care recipient's communication skills, including:

- "1:1 interaction 1 x weekly with speech pathologist for 15 minutes to do validation and communication skill maintenance";

- "1 x weekly 1½ hour conversation group to maintain conversation skills and promote social interaction. Run by Speech Pathologist with aid of Therapy Assistant";

- "Encourage attendance to, and participation in, appropriate activities and outings";

* "Allied Health Assessment Summary and Care Plan (Physiotherapy)", dated 23 February 1999, records functional problems as "Reduced high level balance skills and reduced exercise tolerance" and prescribes the following "Therapy Intervention Plan": "Extended walking outside, 10 minutes each Monday and Wednesday, over varying terrains to challenge balance... Include in Exercise Group at least 1/week 30 minutes";

* "Allied Health Assessment Summary and Care Plan (Occupational Therapy)", dated 5 March 1999, prescribes a "Therapy Intervention Plan" which includes:

- "To attend specific bingo group 1 x weekly";

- "regular 1:1 therapy assistant and small group interaction eg gardening, reminiscence, working in the shed 1 x weekly";

- "Invite to participate in activity sessions, community visits ...";

* "Individual Therapy/Program Plan", dated 17-18 March 1999, includes an occupational therapy program involving the abovementioned weekly group activities, a physiotherapy program involving supervised walking 3 times per week for 20 minutes, and a speech therapy program involving conversation stimulation at all interactions;

* 3 Specific Care Plans (Occupational Therapy), dated 19 January 1997 and reviewed on 8 April 1998 and 10 March 1999, listing numerous interventions in order to maximise residual memory and cognitive abilities and minimise disorientation;

* "Progress Notes" which record:

- 28 October 1996: "Resident encouraged to participate in activities ... Individual time spent 2 x week ... music and books";

- 4 November 1996: "(Physiotherapy) Assessment reviewed ... Joins exercise group 1x/wk ...";

- 23 March 1998: Occupational Therapy Assessment / Review ... [care recipient] has been a regular participant in weekly woodwork sessions for 1 hour, bingo weekly 1 hour, gross motor activities - particularly those involving competition ... Regular attendance on outings in the community ... Resident tended a garden area, grew beautiful cabbages, corn, potatoes with delight";

- 31 March 1998: Occupational Therapy - "Strategies to maintain interaction, functional capabilities, former life roles, links with ... community are reflected in the Specific Care Plans ... Strategies to address identified needs have been incorporated successfully into a specific activity program for this resident ...";

- 14 April 1998: "Occupational Therapy Assessments, Allied Health Summary and Care Plans completed";

- 23 February 1999 (Physiotherapy): "Assessment reviewed. No change in mobility. [Care recipient] continues to be independent with transfers and mobility - requiring re-direction for purposeful movement ... Offer extended walking outside to challenge exercise tolerance and balance skills ...";

- 5 March 1999: "Occupational Therapy Review ... [care recipient] will join in small group activities ie bingo, gardening and woodwork, and enjoys the stimulation from regular outings with the Therapy Assistants. Resident regularly attends Church ... Positively responds to 1:1 interaction. Strategies and programme have been reviewed".

187. The Tribunal is satisfied, on the basis of the abovementioned documentation, that speech therapy, physiotherapy and occupational therapy have been documented by the applicant as care needs of care recipient 160139 and that each of those kinds of therapy was provided to that care recipient by the applicant. The Tribunal is also satisfied that the care recipient's need for each kind of therapy was individually assessed by qualified therapists, and that a "personalised therapy plan" (within the meaning of RCS Question 19) was developed for the care recipient by each of the appropriate therapists: see the abovementioned "Speech Pathology Assessment Form", the "Allied Health" Care Plans, and the "Individual Therapy/Program Plan".

188. The Tribunal is also satisfied that therapy was provided to care recipient 160139, in accordance with the abovementioned care plans / therapy plans, either by the relevant therapist or by the applicant's staff at the direction of that therapist. As regards the frequency with which such therapy was provided to the care recipient, the Tribunal is satisfied, on the basis of the material and evidence before it, that a therapy program (including the 3 abovementioned kinds of therapy) was provided to the care recipient 3 or more times per week, but not as frequently as daily. As regards the duration of each therapy session, the abovementioned material indicates the following:

* 1:1 interaction with speech pathologist once per week for 15 minutes;

* participation in conversation group once per week for 1½ hours;

* exercise group at least once per week for 30 minutes;

* supervised walking 3 times per week for 20 minutes.

The abovementioned material also indicates weekly attendance by the care recipient at various activities and outings but the Tribunal notes that most of those activities are covered by RCS Question 15 ("Social and human needs - care recipient") on which a C rating has been determined for this care recipient. In the Tribunal's opinion, the information contained in the abovementioned documentation does not quite establish that a therapy program (for the purposes of RCS Question 19) was provided to the care recipient at least 3 times per week in blocks of at least 30 minutes' duration, such as would satisfy the essential criteria for a D rating on that Question. The Tribunal notes, however, that the applicant has claimed a C rating on RCS Question 19 and, as stated above, it is satisfied that a therapy program was provided to the care recipient 3 or more times per week (although not daily or not in blocks of at least 30 minutes' duration at least 3 times per week) and that, therefore, a C rating on that Question is supported in this case.

189. Accordingly, the Tribunal finds that the appropriate rating on RCS Question 19, in respect of care recipient 160139, is C.

Appropriate classification level

190. According to the table of "scores" set out in Part 2 of Schedule 1 to the Classification Principles, the abovementioned ratings on RCS Questions 5, 9, 13 and 19 as found by the Tribunal, together with the agreed ratings on all of the remaining RCS Questions, produce an aggregate score of 40.33. According to the table of classification levels in Schedule 2 to the Classification Principles, an aggregate score of 40.33 falls within the range of scores (namely, 39.81 - 50.00) for classification level 5.

191. Accordingly, the determination of the Tribunal is that the appropriate classification level of care recipient 160139, in accordance with the Classification Principles, is 5.

DECISION

192. For the above reasons and on the basis of the above findings the decision of the Tribunal on each of the relevant applications for review is as follows:

* W1999/360 (Care recipient 187825)

* W1999/361 (Care recipient 393216)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/362 (Care recipient 362793)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/364 (Care recipient 79403)

The "reviewable decision" of about 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/367 (Care recipient 193889)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/368 (Care recipient 53851)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/370 (Care recipient 114387)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/373 (Care recipient 237212)

The "reviewable decision" of 1 June 1999, that was confirmed on reconsideration on 7 October 1999, is affirmed.

* W1999/376 (Care recipient 160139)

I certify that the 192 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Dr D Weerasooriya, Member

Signed: ...............(sgd V Wong)..................................

Associate

Date/s of Hearing 11-14 December 2001

Date of Decision 7 February 2003

Counsel for the Applicant Mr P van Hattem

Solicitor for the Applicant Freehills

Counsel for the Respondent Mr M Ritter

Solicitor for the Respondent Phillips Fox

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