DLW Health Services Pty Ltd and Secretary, Department of Social Services (Social services second review)
[2015] AATA 796
•13 October 2015
DLW Health Services Pty Ltd and Secretary, Department of Social Services [2015] AATA 796 (13 October 2015)
Division: GENERAL DIVISION
File Number: 2014/2425
Re: DLW HEALTH SERVICES PTY LTD
APPLICANT
And:SECRETARY, DEPARTMENT OF SOCIAL SERVICES
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 13 October 2015
Place Melbourne
The Tribunal decides to:
1.set aside the decision of the respondent dated 17 December 2013 and confirmed by a decision 14 April 2014; and
2.remit the matter for reconsideration to the respondent with a direction that the classification level of each of the five residents be restored to that immediately preceding the decision dated 17 December 2013.
…[sgd] S A Forgie….
Deputy President
CATCHWORDS
AGED CARE – care provided to residents by overseas qualified physiotherapist under supervision of physiotherapist registered in Australia - classification levels of residents – delegate’s decision based on notes in ACFI 12 relating to complex health care for care to be provided by an allied health professional – whether notes are within power – outside of power – assessment by reference to care recipient’s needs not by reference to how what is needed is being delivered or provided
LEGAL PRINCIPLES – whether Tribunal can consider lawfulness of delegated legislation
LEGISLATION
Aged Care Act 1997; sections 1-3, 2-1, 3-1, 21-2, 22-1, 22-3, 24-1, 24-2, 25-1, 25-2, 25-3, 26-1, 27-4, 27-5, 27-6, 29-1, 41-3, 42-1, 65-1, 54-1, 56-1, 85-5, 96-1; Sch 1 and cl 1Aged Care (Principles and Determinations) Repeal Instrument 2014; section 14; Sch 1
Classification Amendment (Aged Care Funding Instrument) Principle 2013
Classification Principles 1997; sections 9.3, 9.3B, 9.11, 9.17; Part 1 of Schedule 1
Classification Principles 2014
Legislative Instruments Act 2003; sections 13, 14
Quality of Care Principles 1997
User Rights Principles 1997; sections 9.3, 9.17, 23.12; Sch 1
User Rights Principles 2014CASES
Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013) 249 CLR 1; 295 ALR 197; 192 LGERA 185
Australian Fisheries Management Authority v PW Adams Pty Ltd [1995] FCA 1026; (1995) 61 FCR 314; 134 ALR 51; 39 ALD 481; 22 AAR 261Colquhoun & Ors v Capitol Radiology Pty Ltd & Ors [2013] VSCA 58
Footscray Corporation v Maize Products Pty Ltd [1943] HCA 15; (1943) 67 CLR 301
Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311; 136 ALR 42
Morton v Union Steamship Company in New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402
Peppers Self Service Stores Pty Ltd v Scott [1958] HCA 39; (1958) 98 CLR 606
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 72 ALJR 841; 153 ALR 490
Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245
South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161; 83 ALR 631; 67 LGRA 84
Sunol v Collier [2012] NSWCA 14; (2012) 81 NSWLR 619; 258 FLR 282OTHER MATERIAL
Australian Physiotherapy Association’s document entitled “Working with a Physiotherapy Assistant of Other Support Worker – approved 2008”
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION
DLW Health Services Pty Ltd (DLW) is the approved provider of Footscray Aged Care (FAC). On 25 October 2013, Review Officers conducted a review of classification levels of residents at the FAC. The review was followed by a decision on 17 December 2013 by a delegate of the Secretary of the Department of Social Services (Secretary) to change the classification levels of ten residents of FAC under s 85-5 of the Aged Care Act 1997 (AC Act). DLW sought reconsideration of that decision in relation to nine of the ten residents. A different delegate decided that DLW’s application for reconsideration in relation to one of its residents was not valid and did not reconsider the decision in respect of him. She set aside the decision in relation to one resident and substituted a higher classification. In relation to the remaining seven residents, the delegate confirmed the initial decision. The delegate advised DLW of her decision in a letter dated 14 April 2014.
DLW lodged an application seeking review of the decision in relation to five of the eight residents.[1] In order to preserve their privacy, I have identified the five care recipients as CR1, CR2, CR3, CR4 and CR5.[2] At issue is the basis on which the delegate made her decision in relation to the complex pain management and practise undertaken by an allied health professional in relation to those five residents. Complex pain management is the subject of ACFI 12, Item 4B of the Aged Care Funding Instrument (ACFI) User Guide. Reference is made to that document in the Classification Principles made for the purposes of Part 2.4 of the AC Act and headed “Classification of care recipients”.[3] The delegate decided that, at the time of the appraisal, the requirements of that item had not been met for the treatment of each of the five residents was carried out by a staff member who was an overseas qualified physiotherapist but not a physiotherapist registered with the Australian Health Practitioner Regulation Authority (AHPRA).
[1] AC Act; s 85-8 when read with s 85-1, Item 31 and s 85-5. Section 85-8 provides that an application may be made to the Tribunal for review of a reviewable decision that has been confirmed, varied or set aside under, in this case, s 85-6. The “reviewable decision” is, in this case, the initial decision made under s 29-1(1) to change the classification of a care recipient. That decision was made on 17 December 2013 and affected classifications made in periods before that time. The AC Act was amended by the Aged Care (Living Longer Better) Act 2013 but, as the decision was made in relation to circumstances existing before those amendments were made and affects subsidies paid to DLW in respect of those periods of time, I have referred to the AC Act as in force before it was amended by the the Aged Care (Living Longer Better) Act 2013. Although I have referred to particular amendments made subsequently, I have noted that they do not represent changes of substance.
[2] The identifiers refer to the five care recipients in the order in which they are shown in [8] and [9] of the Respondent’s Statement of Facts, Issues and Contentions dated 30 January 2015. The Complex Health Care (CHC) category for each of CR1, CR4 and CR5 was changed from High to Medium, for CR2 from High to Low and for CR3 from High to Medium. The dates from which their classifications were altered were 19 September 2013 for CR1, 5 July 2013 for CR2 and 17 June 2013 for CR3, 4 and 5.
[3] At the time the assessment was made and the classification altered, the Classification Principles 1997 were in force. They were repealed with effect from 1 July 2014 by the Aged Care (Principles and Determinations) Repeal Instrument 2014: s 4; Schedule 1. The Classification Principles 2014 came into operation on 1 July 2014.
I have decided that the qualifications of the staff member providing the treatment are not relevant. What is relevant are the needs of a resident and that those needs may, or may not, be described as complex pain management and practice undertaken by an allied health professional in the sense of being under the supervision and authority of an allied health professional whether or not carried out personally by that allied health professional. That means that I have set aside the delegate’s decision dated 17 December 2013 and confirmed by a decision dated 14 April 2014 in relation to each of the five residents. I remit each decision to the Secretary with a direction that the classification level of each resident be restored to that immediately preceding the decision dated 17 December 2013.
BACKGROUND
Footscray Aged Care
Mrs Marie Weir is the Chair of DLW’s Board of Directors and its Decision Maker. On the basis of her evidence, which was not contradicted by the Secretary, I find that DLW was established in 2001 and it commenced the operation of an aged care facility in Essendon in 2002. In 2005, it purchased FAC. Mrs Weir and her husband, Mr Trevor Weir, who is the other Director of DLW, are two of FAC’s Key Personnel. Mr and Mrs Weir ensure that DLW complies with all regulatory requirements. FAC’s Director of Nursing manages the delivery of nursing and daily care services to residents as well as regulatory compliance with quality care standards.
DLW has an allocation of 60 residential high care places or bed licences at FAC. FAC provides accommodation and health care services to 60 high care residents. Since the Accreditation Standards were introduced under the relevant Quality of Care Standards, FAC has achieved compliance against all 44 expected outcomes.[4] FAC provides residential care in two separate wings. One wing is for Dementia Specific Care. The other is the Clinical Care wing dedicated to clinical care including palliative care and end of life management but also caring for residents suffering from dementia but with less extreme behaviour. DLW maintains a staff:resident ratio of 1:5 with five registered nurses on duty on weekdays and a registered nurse on duty each night with another on call.
[4] The latest was carried out on 23 and 24 June 2015: Exhibit E.
In addition to its residential care services, each week DLW provides Day Therapy to approximately 45 frail and aged clients who live in the community. Day Therapy includes physiotherapy, diversional therapy and massage therapy and is provided in FAC’s Day Therapy Centre and Gymnasium.
Pain management
7. Pain can be suffered for various reasons and in various ways. Mrs Weir’s experience is that pain occurs in residents at FAC primarily as musculo-skeletal pain. It manifests itself as joint pain from arthritic joints, painful fingers and hands affected by arthritis, muscle pain from wasted or knotted muscles, skeletal pain from depleted bone density and fragile, weak support structure. That type of pain can be significantly assisted by the application of straightforward physiotherapy on a regular basis. FAC offers a physiotherapy/pain management programme designed to that end. Pain caused by injuries and illness, including cancer, require management by means of medication. Residents are not always able to assist in identifying their own pain because of, for example, dementia, inability to speak intelligibly because of illness such as stroke, lack of a common language at the relevant time despite FAC’s having staff fluent in 18 languages or a cultural reluctance to speak of such matters. Such issues mean that staff must detect pain by a resident’s gait, body movement or facial expression. All staff at FAC are required to detect changes affecting the comfort of residents. Therefore, continuity of care is the most effective way to ensure effective pain management.
In 2010, DLW engaged a physiotherapy company to provide physiotherapy services at FAC. The company would decide which physiotherapists would visit on any given day. At the time, physiotherapists attended FAC on approximately three days of each week. This meant that those residents with a physiotherapy directive saw a physiotherapist only once each week. While nursing and care staff applied heat packs and carried out light mobility exercises on other days of the week, those residents saw a physiotherapist only once each week.
DLW did not regard this arrangement as providing sufficient continuity to ensure that residents were receiving physiotherapy in accordance with the directive. Lack of continuity in physiotherapists raised issues of trust for some cultural groups in FAC leading them to suffer pain rather than receive treatment. At the same time, the fixed timetabling of physiotherapy visits tended to focus attention on those visits and not on the ongoing 24/7 needs of residents. Although heat packs had been used and a massage therapist had attended weekly, a more therapy-oriented extended pain programme had not been implemented for those diagnosed with chronic pain.
In 2011, it was agreed that FAC could, and should, be achieving far better pain relief for its residents. Contracted physiotherapists could not provide the continuity of personalised care that was required. Therefore, in that year, DLW engaged a registered physiotherapist (RP)[5] to work four days each week. She ceased employment in early 2012. DLW engaged another registered physiotherapist. The Director of Nursing and she discussed the best way to manage the provision of physiotherapy services for the residents of FAC. As part of those discussions, they considered how an allied health assistant whom they employed and who had qualified as a physiotherapist in India but who was not registered in Australia and did not have an Australian qualification[6] as a Physiotherapist Assistant, could assist in providing those services. I will refer to that allied health assistant as AHA. AHA has worked at FAC since 2006 and is well liked and trusted by its residents with whom she enjoys a great rapport. RP suggested that AHA work on physiotherapy treatments under her close supervision while she proceeded along the path to achieving Australian registration. RP had done this in the past with other overseas qualified physiotherapists.
[5] I have made an order under s 35 of the Administrative Appeals Tribunal Act 1975 restricting access to the name and identifying details of the registered physiotherapist. I consider it appropriate to extend that order to the name and identifying details of the allied health assistant for this case is not focused on their skills and professional abilities but about the interpretation and application of the law to what is in fact provided by FAC.
[6] The relevant Australian qualification is a Certificate IV in Allied Health Assistance (Physiotherapy): see [15] below
Based on Mrs Weir’s evidence and that of RP and AHA, I make the findings in this and the following paragraphs in this section of my reasons. AHA first worked in the Day Therapy Centre at FAC for two days each week where she assisted a physiotherapist. In 2012, she continued some of that work but also worked as a physiotherapist assistant in the complex health care or pain management programme. Between early 2012 and May 2014, she worked for five days each week but now works for four. At the beginning, the PR would first conduct an assessment and prepare a care plan and then issue a directive for the treatment to be provided to each of the five residents whose classifications are under consideration in this case. AHA would implement those treatments but only after the PR had trained her. On one day each week, PR was based at FAC and, on the other days, she was available to discuss issues on the telephone. AHA spoke with PR at least two or three times each week either to report on her work or to check on her instructions. Once each fortnight and on the day that PR attended FAC, she would review each resident’s assessment and the treatment AHA had provided.
At the beginning, AHA would observe the process of assessment. As she learned the skills, PR would undertake the assessment but permit AHA to complete the assessment document. They then co-signed it. Whether she or AHA writes the document, PR always made sure that she assesses each new resident and during their reviews. They either did them together initially or AHA did an assessment first and they then assessed the resident together. They have to do that because, unless they know how a resident moves, balances, walks, grips and so on, it is impossible to be able to make recommendations and suggestions for aids to help them or to prepare a care plan.
That process was repeated with the care plan and the directive so that AHA learned each stage of the process. That continued with PR checking and co-signing the assessments after she had reviewed them, questioned aspects if necessary and made changes as she thought appropriate. PR signed those documents knowing that AHA would be the person carrying out the tasks and treatments in each directive. AHA would complete a daily log as she completed them. The directives needed to be reviewed monthly and the assessment and care plans yearly because of an ACFI requirement for funding but they would be reviewed more frequently to cater for changes in a resident’s condition.
PR regarded herself as responsible for the supervision and effective operation of the pain management programme at FAC. She audited the programme to assess whether it was achieving its goals by delivering effective pain management and whether adjustments needed to be made to ensure that happened. As for AHA’s work, PR refuted the suggestion put to her by Ms Foley, the Secretary’s counsel, that she could only ensure that AHA was performing her tasks satisfactorily if she were in the same room while AHA was undertaking them. PR said that she had competency trained AHA and competency assessed her to ensure that she has the skills to undertake the task. AHA was not practising as a physiotherapist when she was undertaking those tasks because she was not qualified to do so under Australian law. Allied health assistants who have received six months’ training are permitted to undertake the tasks undertaken by AHA provided they are duly supervised. PR understands that the Physiotherapy Board of Australia (PBA) permits a physiotherapist to delegate tasks provided the person to whom they are delegated is competent, has the necessary skills and the physiotherapist takes responsibility. I accept that PR took full responsibility for the work undertaken by AHA.
Professional standards
The Australian Physiotherapy Association (APA) issued a Position Statement in 2008 entitled “Working with a Physiotherapy Assistant or Other Support Worker”.[7] It begins with a statement that there is a global shortage of allied health professionals and an increasing demand for physiotherapy services. As a consequence, physiotherapists have increasingly turned to support workers to augment their role. A support worker, the Statement continues, may be drawn from a range of workers who will have differing roles and titles depending on the environment in which they work. The APA recognises those who hold a Certificate IV in Allied Health Assistance (Physiotherapy) as physiotherapy assistants but also deals with work undertaken by all support workers however described.
[7] Exhibit A; Attachment 2
The APA states:
“The process of delegation involves the physiotherapist allocating work to a support worker who then has responsibility for the completion of that task. In this situation the support worker is responsible for completion of the task however the registered practitioner retains accountability. …
Delegating tasks to a support worker depends on the relationship that exists between that worker and the physiotherapist. There are a range of factors that a physiotherapist must consider when deciding whether an activity could appropriately be undertaken by a support worker. Principally this involves determining whether the person to whom the task is delegated has the appropriate role, level of competence, training and experience to carry it out. Physiotherapists are ultimately accountable for ensuring that the support worker has the necessary skill level to perform the delegated task.
Choosing tasks to be undertaken by support staff is a complex activity and much depends on the physiotherapist’s professional opinion. Any physiotherapist delegating tasks to a support worker must supervise the individual performing the task however the nature of this supervisory relationship may be direct or indirect, or may be a combination of the two.
In determining the amount, form, quality and type of supervision required by a support worker in performance of the task, the physiotherapist must take into account several factors. These include the practice setting and type, the nature of the task, the acuity of the patient’s condition, the complexity of the patient’s needs and the degree of judgment, decision making required for modification of treatment based on the patient’s response. These factors must be considered in context with education, training, skills, job experience, personal attributes, abilities and competence of the support worker.
A support worker may perform adjunctive roles in the delivery of the physiotherapy service or physiotherapy management plan as specified by the supervising physiotherapist.”[8]
[8] Exhibit A; Attachment 2at 1-2 (footnotes omitted)
The APA’s position includes the following statements:
“· A physiotherapist is legally responsible for the delivery of all physiotherapy services and must ensure that any delegated intervention is within the support worker’s education, training, experience and skill.
·A physiotherapist is always directly accountable for a client’s physiotherapy management regardless of the amount of care provided by the support worker.
If a support worker assists in the delivery of a physiotherapy service, the physiotherapist must be able to demonstrate a satisfactory level of supervision for the service provided.·A physiotherapist must ensure that support workers behave in a manner consistent with the APA Code of Conduct and four Ethical Principles on which the Code is based.
·…
·Support workers (other than physiotherapy assistants) should hold a minimum qualification of Certificate III in a field relevant to their area of work however in some circumstances equivalent on the job training may be considered adequate.
·…”[9]
[9] Exhibit A; Attachment 2 at 2 (footnote omitted)
These criteria are consistent with those set out in the Code of Conduct issued by the Australian Health Practitioner Regulation Agency in association with 14 National Boards, including the PBA, responsible for regulating for registered health practitioners other than psychologists. It sets out three factors involved in good practice. They include:
“taking reasonable steps to ensure that any person to whom a practitioner delegates, refers or hands over has the qualifications and/or experience and/or knowledge and/or skills to provide the care required”[10]
[10] Exhibit A; Attachment 1 at 15, 4.3
The Code of Conduct states that:
“Delegation involves one practitioner asking another person or member of staff to provide care on behalf of the delegating practitioner while that practitioner retains overall responsibility for the care of the patient or client.”[11]
LEGISLATIVE BACKGROUND
[11] Exhibit A; Attachment 1 at 15, 4.3
Objects of the AC Act
The objects of the AC Act are set out in s 2-1(1) and are:
“(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 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.”
Section 2-1(2) provides for the interpretation of these objects:
“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.”
Overview of system of subsidies for provision of aged care
Division 3 of Chapter 1 of the AC Act sets out an overview of its provisions. In outline it provides:
“(1) This Act provides for the Commonwealth to give financial support:
(a) through payment of *subsidies for the provision of *aged care; and
(b) through payment of grants for other matters connected with the provision of aged care.
Subsidies are paid under Chapter 3 (but Chapters 2 and 4 are also relevant to subsidies), and grants are paid under Chapter 5.”[12]
[12] AC Act; s 3-1 Since its amendment by Item 4 of Part 1 of Schedule 3 of the Aged Care (Living Longer Better) Act 2013 with effect from 1 July 2014, the concluding sentence to s 3-1 has been replaced by the sentence “*Subsidies are also paid under Chapter 3 of the Aged Care (Transitional Provisions) Act 1997.”
The Commonwealth makes grants to contribute to the costs associated with the establishment or enhancement of aged care services and with support services related to the provision of aged care. Those grants include residential care grants and they are the subject of Part 5.1 of Chapter 5 of the AC Act. Subsidies take the form of residential care subsidy, home care subsidy, and flexible care subsidy. Chapter 3 sets out who is eligible for residential care subsidy, how it is paid and its amount. Its requirements link back to those of Chapter 2 in that they include a provision that an approved provider will only be eligible if providing residential care to a care recipient in respect of whom an approval is in force under Part 2.3.[13] Care recipients approved under Part 2.3 for residential care are also classified under Part 2.4 according to the level of care they need. The classifications may affect the amounts of residential care subsidy payable to approved providers for providing care.[14]
[13] AC Act; s 42-1(1)(b)
[14] AC Act; s 24-1
Receipt of payment gives rise to responsibilities under Chapter 4 of the AC Act. Chapter 4 divides those responsibilities into three broad categories relating to quality of care, user rights of those to whom care is provided and accountability for the care that is provided. They are the subject of Parts 4.1, 4.2 and 4.3 respectively. Sanctions may be imposed under Part 4.4 if approved providers do not meet their responsibilities.[15] The Minister has made Sanctions Principles to carry out or give effect to that Part. Responsibilities applying to all approved providers are set out in s 54-1:
[15] AC Act; s 65-1
“The responsibilities of an approved provider in relation to the quality of the *aged care that the approved provider provides are as follows:
(a)to provide such care and services as are specified in the Quality of Care Principles in respect of aged care of the type in question;
(b)to maintain an adequate number of appropriately skilled staff to ensure that the care needs of care recipients are met;
(c)to provide care and services of a quality that is consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles for the purposes of paragraph 56-1(l), 56-2(i) or 56-3(j);
(d)if the care is provided through a residential care service – to comply with the Accreditation Standards made under section 54-2;
(f)…
(g)…
(h)such other responsibilities as are specified in the Quality of Care Principles.
Note:The Quality of Care Principles are made by the Minister under section 96-1.”[16]
[16] Since its amendment by Item 151 of Part 1 of Schedule 3of the Aged Care (Living Longer Better) Act 2013 with effect from 1 July 2014, s 54(1)(c) has been amended to reflect amendments also made by that legislation to s 56. Section 54-1(c) now reads: “to provide care and services of a quality that is consistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles for the purposes of paragraph 56-1(m), 56-2(k) or 56-3(l)”. The substance of ss 56-1(m), 56-2(k) or 56-3(l) is the same as that in the now repealed ss 56-1(l), 56-2(i) or 56-3(j).
These responsibilities apply in relation to matters concerning a person to whom an approved provider provides, or is to provide, care through an aged care service only if one or other of two circumstances exists. The first is that subsidy is payable for the provision of care to the person. The second has two criteria, both of which must be met. One is that the approved provider is approved both in respect of the aged care service through which the person is provided, or to be provided, with aged care and for the type of aged care provided, or to be provided, to the person. The other is that the person is approved under Part 2.3 as a recipient of the type of aged care provided, or to be provided, through the service.[17]
[17] AC Act; s 54-1(2)(b)
Section 56-1 sets out particular responsibilities resting with an approved provider in relation to a care recipient to whom the approved provider provides, or is to provide, residential care. They include the responsibility:
“not to act in a way which is inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles”.[18]
[18] AC Act; s 56-1(l)
As in force in 2013 when the decisions were made, the User Rights Principles 1997 (UR Principles)[19] included a Charter of residents’ rights and responsibilities in Schedule 1 (Charter). Section 23.12 related to care recipients receiving residential care and provided that their rights and responsibilities were those set out in the Charter. Among them was “… the right … to quality care appropriate to his or her needs …”.[20]
[19] These have since been replaced by the User Rights Principles 2014 but, apart from numbering changes, the relevant provisions are the same.
[20] UR Principles, Schedule 1, A
Care and residential care
The word “care” is defined 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.”[21]
[21] AC Act; s 1-3; Schedule 1, cl 1
The expression “residential care” has the meaning given by s 41-3.[22] Subject to qualifications, to which I will refer in the following paragraph, “residential care” is defined as:
[22] AC Act; s 1-3; Schedule 1, cl 1
“… 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.”[23]
[23] AC Act; s 41-3(1)
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;
(d) care that is specified in the Subsidy Principles not to be residential care.”[24]
[24] AC Act; s 41-3(2)
Approval of a care recipient
If a person applies under s 22-3 in Part 2.3 for approval as a recipient of residential care, the Secretary must grant the application if satisfied he or she is eligible to receive that care.[25] A person is eligible to receive residential care if:
“(a) the person has physical, medical, social or psychological needs that require the provision of care; and
(b) those needs cannot be met more appropriately through non-residential care services; and
(c) the person meets the criteria (if any) specified in the Approval of Care Recipient Principles as the criteria that a person must meet in order to be eligible to be approved as a recipient of residential care.”[26]
Classification of care recipients
[25] AC Act; s 22-1
[26] AC Act; s 21-2
A. General outline
In general terms, the approved provider that is providing care to the care recipient, or a person acting on the approved provider’s behalf, may make an appraisal of the level of care needed by a care recipient, relative to the needs of other care recipients.[27] The appraisal must be in a form approved by the Secretary and must be made in accordance with any procedures specified in the Classification Principles.[28] If the Secretary receives that appraisal under s 25-3 in respect of a care recipient who has been approved under Part 2.3 for residential care, the Secretary must classify him or her according to the level of care he or she needs, relative to the needs of other care recipients.[29]
[27] AC Act; s 25-3(1)(a)
[28] AC Act; s 25-3(3)
[29] AC Act; s 25-1(1)
The Secretary’s classification must specify the appropriate classification level for the care recipient.[30] The Classification Principles may specify the methods or procedures that the Secretary must follow in determining the appropriate classification level of the care recipient.[31] In classifying a care recipient, the Secretary must take into account the appraisal made in respect of the care recipient under s 25-3 and other matters specified in the Classification Principles.[32] If there is no classification of a care recipient, the care recipient is classified at the lowest applicable classification level set out in the Classification Principles.[33]
[30] AC Act; s 25-1(2)
[31] AC Act; s 25-1(2)
[32] AC Act; ss 25-1(2) and (3)
[33] AC Act; s 25-1(4)
Section 25-2(1) provides that the Classification Principles may set out the classification levels for care recipients being provided with, among others, residential care. For each level, the Classification Principles may specify the criteria for determining which level applies to a care recipient.[34] They may also specify which of the levels is the lowest applicable classification level.[35]
[34] AC Act; s 25-2(4)
[35] AC Act; s 25-2(3)
B. Reappraisal of the level of care
Section 27-5 provides for a reappraisal of the level of care needed by a care recipient. That reappraisal must be made in accordance with the Classification Principles applying to an appraisal. An approved provider providing care to the care recipient, or a person acting on that person’s behalf, may make a reappraisal.[36]
[36] AC Act; s 27-5(2)(a)
C.Renewal of classification
With some exceptions, the Secretary may renew classification of a care recipient after receiving a reappraisal of the level of care needed by the care recipient and either the reappraisal is made in respect of the expiry date for the classification or the reappraisal is made under s 27-4.[37] The renewal of the classification must specify the appropriate classification level for the care recipient. The Classification Principles may specify methods and procedures that the Secretary must follow in determining the appropriate classification level for care recipients. In renewing a classification, the Secretary must take into account the reappraisal made in respect of the care recipient and any other matters specified in the Classification Principles.[38]
[37] AC Act; s 27-6(1)
[38] AC Act; ss 27-6(2) and (3)
D. Changing classifications
If the Secretary is satisfied that a classification was based on an incorrect or inaccurate appraisal under s 25-3 or reappraisal under s 27-5 or was, for any other reason, incorrect, he or she must change the classification.[39] Apart from the time at which classifications are renewed, a classification cannot be changed in any other circumstances.[40] Before changing the classification, the Secretary must have regard to any material on which the classification was based, any matters specified in the Classification Principles as matters to which regard must be had and any other material he or she considers relevant.[41]
[39] AC Act; s 29-1(1)
[40] AC Act; s 29-1(2)
[41] AC Act; s 29-1(3)
E.Classification Principles
The Classification Principles, for which provision is made in Part 2.4, are made under Item 9 of s 96-1 of the AC Act. That section provides that the Minister may, by legislative instrument, make them for the purpose of providing for matters required or permitted by that Part or necessary or convenient to be provided in order to carry out or give effect to Part 2.4. That Part indicates when a particular is to be, or may be, dealt with in the Classification Principles.[42] At the date of effect of the reclassification levels in 2013, the Classification Principles 1997 were in effect. As mentioned in FN … above, they were repealed and replaced by the Classification Principles 2014 with effect from 1 July 2014. Although the section and Part numbering varies between the two as does some of the expression, the substance and order of the provisions is the same in each. I have referred to the relevant provisions of the Classification Principles 1997 (Classification Principles) in the remainder of these reasons.
[42] AC Act; s 24-2
E.1Appraisals of the level of care needed
Section 9.17(2) of the Classification Principles specifies the procedure for an appraisal of the level of care needed by a care recipient.[43] The procedure is:
[43] Classification Principles; 9.17(1)
“The person making the appraisal must:
(a)complete an Answer Appraisal Pack in accordance with the User Guide, using:
(i)accurate and reliable information; and
(ii)if required by the Answer Appraisal Pack, the assessment tools in the Assessment Pack; and
(b)complete an application for classification using the completed Answer Appraisal Pack.”
The expression “Answer Appraisal Pack” is defined in s 9.3 of the Classification Principles to mean:
“… the Aged Care Funding Instrument (ACFI) Answer Appraisal Pack, published by the Department of Health and Ageing, as existing on the commencement of the Classification (Aged Care Funding Instrument) Principle 2013.
Note:The Answer Appraisal Pack is available on the Intenet – see “User Guide” means:
“… the Aged Care Funding Instrument (ACFI) User Guide, published by the Department of Health and Ageing, as existing on the commencement of the Classification Amendment (Aged Care Funding Instrument) Principle 2013.
Note:The User Guide is available on the Internet – see Classification Principles; 9.3. I note that s 4 of the Classification Principles 2014 defines the two expressions in similar terms but by reference to each “… as it exists on 1 July 2014”. A copy of the User Guide is included in the T documents at T5. Its terms, including those of s 4, are similar to those of the User Guide as existing on the commencement of the Classification Amendment (Aged Care Funding Instrument) Principle 2013. As the earlier User Guide, which is included as T4 in the T documents, is applied by virtue of the Classification Principles 1997, I will refer to it.
E.2 Aged Care Funding Instrument User Guide
The Introduction to the User Guide begins with a description of the ACFI:
“The Aged Care Funding Instrument (ACFI) is a resource allocation instrument. It focuses on the main areas that discriminate care needs among residents. The ACFI assesses core needs as a basis for allocating funding.
The ACFI focuses on care needs related to the day to day, high frequency need for care. These aspects are appropriate for measuring the average cost of care in longer stay environments.
While based on the differential resource requirements of individual persons, the ACFI is primarily intended to deliver funding to the financial entity providing the care environment. This entity for most practical purposes is the residential aged care home. When completed on all residents in the facility the ACFI provides sufficient precision to determine the overall relative care needs profile and the subsequent funding.
The ACFI consists of 12 questions about assessed care needs, each having four ratings (A, B, C or D) and two diagnostic sections.
While the ACFI questions provide basic information that is related to fundamental care need areas, it is not a comprehensive assessment package. Comprehensive assessment will consider a broader range of care needs than is necessarily required in a funding instrument.”[45]
[45] ACFI User Guide; 7 January 2013 at 1; T documents; T4 at 63
The User Guide explains that there are three components of residential care subsidy determined by the ACFI:
“· Activities of Daily Living (ratings on Nutrition, Mobility, Personal Hygiene, Toileting and Continence questions are utilised to determine the level of the basic subsidy)
·Behaviour Supplement (ratings on Cognitive Skills, Wandering, Verbal Behaviour, Physical Behaviour and Depression questions are utilised to determine the behaviour supplement)
·Complex Health Care Supplement (ratings on Medication and Complex Health Care Procedure questions are utilised to determine the complex health care supplement).”[46]
[46] ACFI User Guide; 7 January 2013 at 2; T documents; T4 at 64
The answers to the questions are relevant for:
“The amount of each of these that is payable in respect of a particular resident depends on the ratings (A, B, C or D) for each of the ACFI questions (1-12). Other data such as diagnosis may be relevant to the calculation of subsidy for some questions.
Appendix 2 sets out the relationship between the ACFI questions and the three funding domains, and provides the question scores and category cut-off points.”[47]
[47] ACFI User Guide; 7 January 2013 at 2; T documents; T4 at 64
E.3Classification levels
For the purposes of s 25-2 of the AC Act, s 9.11 sets out the classifications levels for care recipients being provided with residential care other than as respite care. They are:
“(a) a classification level consisting of a domain category in each domain; and
(b)interim low level.
Note:For the procedure for determining the classification of a care recipient being provided with residential care other than respite care, see section 9.3B. …”
E.4Procedure for determining classification level – non-respite care
For the purposes of s 25-1(2) of the AC Act, the procedure set out in s 9.3B(2) and (3) of the Classification Principles is specified for determining the appropriate classification level for a care recipient being provided with residential care other than respite care.[48] Section 9.3B(2) sets out three steps that must be taken in determining the appropriate classification for a care recipient but it begins with the statement that, in following those steps, the Secretary must use the application for classification that was completed in accordance with s 9.17(2)(b) (the completed application).[49]
[48] AC Act; s 9.3B(1)
[49] See [39] above
Subject to a qualification in s 9.3B(3) of the Classification Principles that is not relevant in this case, the steps are:
“Step 1 For the activities of daily living and behaviour domains in the completed application, the Secretary must:
(a)for each question in the domain, use Schedule 1 to identify the score for the rating; and
(b)add up the scores for the questions in the domain to work out an aggregate figure for each domain (the domain aggregate); and
(c)using Schedule 2, for each domain:
(i)identify the domain aggregate range within the domain aggregate falls; and
(ii)identify the domain category that applies to the domain aggregate range.
Step 2For the complex health care domain in the completed application, the Secretary must:
(a)use the matrix in Part 3 of Schedule 1 to work out the score for the domain (the domain score); and
(b)identify the domain category mentioned in Part 3 of Schedule 2 that applies to that domain score.
Step 3The Secretary must determine the appropriate classification level for the care recipient under section 25-1 of the Act:
(a)according to the domain category identified for each domain under subparagraph (c)(ii) of Step 1 and paragraph (b) of Step 2; and
(b)if the domain category identified for the behaviour domain is the high behaviour category, and the completed application does not include a mental and behavioural diagnosis code – reducing the domain category to the medium behaviour category.”
The reference to “domain” is a reference to:
“… a group of questions in the Answer Appraisal Pack relating to one of the following:
(a)activities of daily living;
(b)behaviour;
(c)complex health care.”[50]
The “domain category” is “… a category mentioned in column 3 of Schedule 2.”[51]
[50] Classification Principles; s 9.3
[51] Classification Principles; s 9.3
E.4.1Step 1: activities of daily living domain and behaviour domain
There are ten ACFIs relating to these two domains with the first five coming under the daily living domain and the next five under the behaviour domain. I will use only ACFI 1 as an example of the assessment of a care recipient’s needs in relation to nutrition. Tube feeding is excluded from assessment under ACFI 1 and is considered under ACFI 12. The level of assistance required for each care need is assessed according to the following table:
Nutrition Checklist
Assistance level
(Tick one per care need)1. Readiness to eat
Supervision is:
· placing utensils in the resident’s hand.
One-to-one physical assistance is required for:
· cutting up food OR vitamising food.□ 0 (Independent/NA)
□ 1 (Supervision)
□ 2 (Physical assistance)
2. Eating
Supervision is:
· Standing by to provide assistance
(verbal and/or physical) OR providing assistance with daily oral intake when ordered by a dietitian for a person with a PEG tube.One-to-one physical assistance is required for:
· placing or guiding food into the resident’s mouth for most of the meal.□ 0 (Independent/NA)
□ 1 (Supervision)
□ 2 (Physical assistance)
RATING A = 0 in both care needs (readiness to eat and eating)
RATING B = 0 in readiness to eat AND 1 in eating
RATING B = 1 in readiness to eat AND 0 in eating
RATING B = 1 in readiness to eat AND 1 in eating
RATING B = 2 in readiness to eat AND 0 in eating
RATING C = 2 in readiness to eat AND 1 in eating
RATING C = 0 in readiness to eat AND 2 in eating
RATING C = 1 in readiness to eat AND 2 in eatingRATING D = 2 in readiness to eat AND 2 in eating
Each of these ratings is assigned a score under Part 1 of Schedule 1 of the Classification Principles. In the case of Nutrition, assignment is made according to the following table:
Question
Rating
Score
1 Nutrition
A
0
2
B
6.69
3
C
13.39
4
D
20.09
The scores for each of the other four activities in the daily living domain[52] are assessed in a similar way. All five scores are then added together and the total assessed by reference to the table in Part 1 of Schedule 2. That table gives the domain category applicable to the activities of daily living domain:
“Part 1 – Activities of daily living (ADL) domain
[52] The other four are mobility, personal hygiene, toileting and continence.
Item
Domain aggregate range
Domain category
1
0-17.99
Nil ADL category
2
18-61.99
Low ADL category
3
62-87.99
Medium ADL category
4
88-100
High ADL category”
The domain category for the behaviour domain is assessed in a similar way. First, the level of care required by each care recipient is assessed according to five sets of questions relating to each of cognitive skills, wandering, verbal behaviour, physical behaviour and depression. Each is given an ACFI rating that is converted into a score. The scores from each set of questions are aggregated and the total of those scores determines the domain category for the behaviour domain:
“Part 2 – Behaviour domain
Item
Domain aggregate range
Domain category
5
0-12.99
Nil behaviour category
6
13-29.99
Low behaviour category
7
30-49.99
Medium behaviour category
8
50-100
High behaviour category”
E.4.2 Step 2: Complex health care domain
The Classification Principles and the User Guide approach the complex health care domain a little differently from the other two. The Secretary must use the matrix in Part 3 of Schedule 1 to work out the score for the complex health care domain. The matrix has regard both to the ACFI 11 relating to medication and to ACFI 12 relating to complex health care:
Question 12 Complex health care
Rating
A
B
C
D
Question 11 Medication
A
0
0
2
2
B
0
1
2
3
C
1
1
2
3
D
1
2
3
3
The domain score for complex health care is then used to identify the domain category set out in the Part 3 of Schedule 2 to the Classification Principles:
“Part 3 – Complex health care (CHC) domain
Item
Domain score
Domain category
9
0
Nil CHC category
10
1
Low CHC category
11
2
Medium CHC category
12
3
High CHC category”
In order to understand Step 2, it is necessary to go to the medication question in ACFI 11 of the User Guide and the complex care question in ACFI 12 of the User Guide. Taking ACFI 11 first, it is described in the User Guide:
“This question relates to the needs of the person for assistance in taking medications. It relates to medication administered on a regular basis. Infrequent or irregular administration of medication(s) is not covered in this question.”[53]
Intravenous infusions and the administration of suppositories and enemas as part of bowel management are dealt with under ACFI 12 Complex Health Care.
[53] T documents; T4 at 96
The word “assistance” is defined to mean:
“… either standby (to provide physical or verbal assistance) or to provide physical assistance or extensive prompting so that the person completes the ingestion or takes medication by route ordered. There are three time periods associated with the level of assistance (less than 6 minutes, 6-11 minutes and more than 11 minutes).”[54]
The Notes to ACFI 11 state that, where a person is responsible for his or her own medication administration from a dose administration aid, that is not regarded as assistance for the purpose of ACFI 11. Administration does not include supervision of a resident injecting his or her own medication.
[54] T documents; T4 at 96
“Medication(s)” are:
“∙ any substance listed in Schedules 2, 3, 4, 4D, 8 or 9 of the Standard for the Uniform Scheduling of Drugs and Poisons (and its amendments) and/or
∙medication(s) ordered by an authorised health professional or authorised for nurse initiated medication by a Medication Advisory Committee or its equivalent. This excludes food supplements, with or without vitamins, and emollients (e.g. sorbolene cream, aqueous cream, etc).”[55]
An “Authorised health professional” means “… a medical practitioner, dentist, nurse practitioner or other health professional authorised to prescribe by relevant state/territory legislation.”[56]
[55] T documents; T4 at 96
[56] T documents; T4 at 96
A checklist of medications must be completed in order to obtain the rating for ACFI 11. The checklist and the rating key is:
Medication Checklist
Tick if yes
No medication
□ 1
Self-manages medication
□ 2
Application of patches at least weekly, but less frequently than daily
□ 3
Needs assistance for less than 6 minutes per 24 hour period with daily medications
□ 4
Needs assistance for between 6 and 11 minutes per 24 hour period with daily medications
□ 5
Needs assistance for more than 11 minutes per 24 hour period with daily medications
□ 6
Needs daily administration of a subcutaneous drug
□ 7
Needs daily administration of an intramuscular drug
□ 8
Needs daily administration of an intravenous drug
□ 9
ACFI 11: rating key
RATING A = yes to (item 1) or (item 2)
RATING B = yes to (item 3) or (item 4)
RATING C = yes to (item 5)RATING D = yes to (item 6) or (item 7) or (item 8) or (item 9)
The relevant rating of A, B, C or D is chosen from the left hand column relating to AFI 11 of the matrix in Part 3 of Schedule 1 before moving to choose the appropriate rating of A, B, C or D for Complex Health Care across the top of the matrix. The number at the intersection of the two letters becomes the domain score for the complex health care domain. I now turn to how the rating is determined for question 12.
The relevant passage of the User Guide relating to ACFI 12 begins with a general description of what it relates to:
“This question relates to the assessed need for ongoing complex health care procedures and activities. It excludes temporary nursing interventions e.g. management of temporary post-surgical catheters or stomas, management of minor injuries or acute illnesses such as colds/flu.
The ratings in this question relate to the technical complexity and frequency of the procedures.
Only the stated procedures of health care needs that have been identified in a directive (that may include an assessment) by a registered nurse including nurse practitioner, or other appropriate medical or health professional, are taken into account. Identify the procedure required in relation to usual (not exceptional) care needs and record the frequency of this procedure. Where a minimum frequency is specified as ‘at least weekly’ and a frequency is less than this, it is not taken into account in calculating a rating.”[57]
[57] ACFI User Guide; 7 January 2013 at 36; T documents; T4 at 98
The User Guide goes on to describe various terms used in this passage. Those terms include:
“An allied health professional directive refers to a directive by a chiropodist or podiatrist, chiropractor, dietitian, osteopath, physiotherapist, occupational therapist or speech pathologist that describes the complex health care procedure to be performed and the associated management and/or treatment plan. The allied health professional must be appropriately qualified to develop the directive for that procedure.
Where the management and practice is to be undertaken by an allied health professional as listed above in the description of allied health professional directive, the allied health professional must be acting within their scope of practice.”[58]
[58] ACFI User Guide; 7 January 2013 at 36; T documents; T4 at 98
The description given of ACFI 12 expands upon what is required under Items 4a and 4b:
“Under item 4a Complex Health Care, a directive that describes the complex pain management to be performed must be given by a registered nurse or a medical practitioner or an allied health professional included on the list of allied health professionals. Under item 4a, a registered nurse or an allied health professional may provide complex pain management and practice.
Under item 4b pain management services would need to be provided by a listed allied health professional and the directive given by a medical practitioner or listed allied health professional.
It is permissible for the service to be provided by a different health professional than the one who gave the directive, provided they are included in the list of health professionals who can undertake the service and are operating within their scope of practice.
Under item 4b to meet this requirement consistent ongoing treatment must be provided as required by the resident.”[59]
[59] ACFI User Guide; 7 January 2013 at 36; T documents; T4 at 98
ACFI 12 then sets out a table listing 18 complex health care procedures with one, Item 4, divided into two sub-procedures: Items 4a and 4b. I will set out only three relevant to pain management:
“Complete all complex health care procedures relevant to the resident
Score
Complex health care
proceduresRequirements
Tick if yes
…
…
…
…
1
Pain management involving therapeutic massage or application of heat packs AND Frequency at least weekly AND
Involving at least 20 minutes of staff time in total1. Directive [registered nurse or medical practitioner or allied health professional]
AND
2. Pain assessment
AND
on request: record□ 3
3
Complex pain management and practice undertaken by an allied health professional or registered nurse. This will involve therapeutic massage and/or pain management involving technical equipment specifically designed for pain management AND
Frequency at least weekly AND
Involving at least 20 minutes of staff time in total.
You can only claim one item 4 – either 4a or 4b1. Directive [registered nurse or medical practitioner or allied health professional]
AND
2. Pain assessment
AND
on request: record□ 4a
6
Complex pain management and practice undertaken by an allied health professional. This will involve therapeutic massage and/or pain management involving technical equipment specifically designed for pain management AND
Ongoing treatment as required by the resident, at least 4 days per week
You can only claim one item 4 – either 4a or 4b1. Directive [medical practitioner or allied health professional]
AND
2. Pain assessment
AND
on request: record□ 4b
…
…
…
…”
The ACFI 12 rating key appears at the foot of the table:
“RATING A= score of 0 (no procedures)
RATING B = score of 1-4
RATING C = score of 5-9
RATING D = score of 10 or more”[60]
[60] ACFI User Guide; 7 January 2013 at 39; T documents; T4 at 101
E.4.3 Step 3: Determining the appropriate classification level
This has been set out at [46] above by reference to the domain category.
Residential care – amount of basic subsidy
The provisions of Part 3.1 of Chapter 3 relating to payment of residential care subsidy come into play once a classification has been determined for a care recipient. Division 42 of Part 3.1 deals with matters such as eligibility for residential care subsidy, leave from residential care services and accreditation of the residential care service. Division 43 is concerned with the payment of residential care subsidy.
Division 44 is concerned with assessing the amount of residential care subsidy payable to an approved provider. That amount is worked out by adding together the amounts of residential care subsidy for each care recipient to whom the approved provider provided residential care through the residential care service during a payment period and in respect of whom it was eligible for residential care subsidy in that period.[61] The amount of the residential care subsidy for a care recipient in respect of a payment period is assessed out by first working out the basic subsidy amount using Subdivision 44-B. Section 44-3(3) provides that the Minister may determine different amounts (including nil amounts) based on any one or more of the seven criteria set out in that subsection. Among those criteria is the classification level for care recipients being provided with residential care.[62]
[61] AC Act; s 44-2(1)
[62] AC Act; s 44-3(3)(a)
Added to the basic subsidy amount are any primary supplements worked out using Subdivision 44-C. They are assessed on a range of bases including whether a person is an assisted resident having regard to various considerations including income and assets and whether the care recipient was administered oxygen or was provided with enteral feeding in accordance with the Residential Care Subsidy Principles. Reductions are the subject of Subdivisions 44-D and 44-E. The bases for reduction in Subdivisions 44-D include the situation in which a care recipient’s care is covered by a compensation entitlement. Subdivision 44-E provides for reduction based on the care recipient’s income. Any other supplements worked out under Subdivision 44-F are then added and the final residential care subsidy assessed.[63]
THE SUBMISSIONS
[63] AC Act; s 44-2(2)
A. Lawfulness of reference to User Guide in Classification Principles
On behalf of DLW Health Services, Ms McKenzie of counsel submitted that neither subordinate legislation nor departmental policy can be used to change, or take the place of, the objects of an Act. She relied on Colquhoun & Ors v Capitol Radiology Pty Ltd & Ors,[64] Morton v Union Steamship Company in New Zealand Ltd,[65] Project Blue Sky Inc v Australian Broadcasting Authority,[66] Shanahan v Scott[67] and Peppers Self Service Stores Pty Ltd v Scott.[68]
A directive does not fall outside an assessment of needs and become a statement of what is provided. Rather, it is as RP described, a document that is the culmination of the assessment and development of the care plan. It “… describes the complex health care procedure to be performed and the associated management and/or treatment plan. …” (emphasis added) as defined in AFI 12 in relation to a directive prepared by a nurse practitioner, registered nurse, medical practitioner or allied health professional, including a physiotherapist. In the case of an allied health professional, he or she must be appropriately qualified to develop the directive for the procedure. Where the management and practice is to be undertaken by an allied health professional, he or she must be acting within his or her scope of practice.
Although a directive refers to the procedure that is to be performed, I see it as forming part of the material that is necessary to assess a care recipient’s needs. As a matter of practice, there must be some foundation for assessing a care recipient’s needs. A directive is one of the pre-requisites provided for in the column marked “Requirements” against each of Items 4a and 4b. The Directive must be given by a medical practitioner or allied health professional. A pain assessment is also required as is, on request, a record. In the context of ACFI 12, I understand a “record” to be a record of treatment. These are documents that relate to treatment that has been provided but they are also objective measures of a care recipient’s needs. As such, their use is relevant in assessing those needs.
I will turn to their precise meaning in a moment but, for the moment, Items 4a and 4b both appear to describe the needs of a resident. Those needs begin with the generic description of “Complex pain management and practice undertaken by an allied health professional. …” and then become more specific as to treatment and frequency. They would seem to be within the power conferred by the AC Act to make the Classification Principles.
The notes to Items 4a and 4b cause me more concern but, before I turn to them, I need to spend a moment understanding that generic description of the needs. As I have said, each begins its description of a care recipient’s needs with the words “Complex pain management and practice undertaken by an allied health professional. …” (emphasis added), in the case of Item 4b or an allied health professional or registered nurse, in the case of Item 4a. The word “undertaken” in this context would seem to have the meaning to:
“… 1 to accept (a duty, responsibility or task). …”[108]
[108] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
Given these meanings, undertaking complex pain management and practice could equally be understood as requiring an allied health professional or registered nurse to perform the tasks personally or as requiring one or other of them to accept the duty or responsibility of attending to them but not necessarily performing them personally. There are two things that favour the latter construction. The first is the use of the word “undertake” in the items and the use of the word “provide” in the notes expanding on those items under the heading of “Complex Pain Management” in ACFI 12. I have set them out at [61] above but will repeat them marking in bold the passages of concern:
“… Under item 4a, a registered nurse or an allied health professional may provide complex pain management and practice.
Under item 4b pain management services would need to be provided by a listed allied health professional and the directive given by a medical practitioner or listed allied health professional.
It is permissible for the service to be provided by a different health professional than the one who gave the directive, provided they are included in the list of health professionals who can undertake the service and are operating within their scope of practice.”[109]
[109] ACFI User Guide; 7 January 2013 at 36; T documents; T4 at 98
The meanings of the word “provide” include “to supply”.[110] The same could be said of “provide” as of “undertake” in that it could be understood as being open to interpretation as requiring a task to be carried out by those listed in the notes and not by another under their supervision. Given the fact that the word “undertaken” has been chosen in one context and the word “provide” in a related context suggests that the words were intended to have different meanings. Given that the ordinary meaning of the word “undertake” extends to acceptance of a duty or responsibility as well as of a task and that of “provide” is focused on supply, it seems to me that the two words are intended to bear those differences in ACFI 12. The notes are directed to those who may, in the case of Item 4a, provide complex pain management and practice and to those who would need to do so in the case of Item 4b.
[110] Chambers
The second factor that favours a construction of Items 4a and 4b as requiring only that the health professionals named in them must accept the duty or responsibility of attending to complex pain management and practice but need not necessarily perform the services personally is found in the practice of physiotherapy. The Code of Conduct and the Position Statement of the APA both recognise that an allied health professional may delegate tasks to others. At the same time, they are quite clear that responsibility for the delegated tasks and for ensuring that the person to whom they are delegated is appropriately skilled and competent rests firmly with the allied health professional. The APA recognises only a person with a Certificate IV in Allied Health Assistance (Physiotherapy) as a physiotherapy assistant but it does not purport to restrict the persons to whom a physiotherapist may delegate tasks to a person holding such a certificate.
In the absence of the notes I have set out at […] above, the criteria in Items 4a and 4b would, like the 18 items set out in ACFI 12, be read as directed to those needs and not to what is in fact provided. To modify what is needed by reference to what is provided would, it seems to me, be beyond the power conferred on the Minister by the AC Act. To the extent that they do so, they cannot be regarded as objective measures by which to assess a care recipient’s needs. Rather, they are about provision of complex health care services and so move outside the bounds of the power given by the AC Act to make Classification Principles and into issues relevant to an approved provider’s accountability for the provision of care services and a care recipient’s rights to receive care services. Therefore, I am of the view that the notes to ACFI 12 relating to Items 4a and 4b are outside power.
In reaching this view, I have also considered the argument that might be put that payment of a residential care subsidy should match with a requirement that the assessed need be met by provision of a care service precisely matching that assessed need. The answer to that argument lies in the way that Parliament has chosen to ensure that care needs are assessed and care is provided. It has separated them and put in place a system for ensuring that care is provided. It has done so by imposing responsibilities on an approved provider. I have referred to them above but another is particularly relevant in the context of ACFI 12.
Section 54-1(a), found in Part 4.1, provides that an approved provider’s responsibilities include the provision of such care and services as are specified in the Quality of Care Principles in respect of aged care of the type in question. The Quality of Care Principles1997 are made under s 96-1 of the AC Act. Division 2.1 of Part 2 of those Principles sets out the care and services that an approved provider of a residential care service must provide. Section 18.6(1A) [111] provides:
“The care or service must be provided by the approved provider in a way that meets the Accreditation Standards set out in Schedule 2.”
[111] Now s 7(2) of the Quality of Care Principles 2014
Part 2 of the Accreditation Standards is concerned with health and personal care. It begins with the principle that:
“Residents’ physical and mental health will be promoted and achieved at the optimum level in partnership between each resident (or his or her representative) and the health care team.”
There then follows a list of items but only item 2.8 is relevant:
Col. 1
Column 2
Column 3
Item
Matter Indicator
Expected Outcome
…
2.8
Pain management
All residents are as free as possible from pain
…
Item 2.8 does not match in its wording with the criteria in Items 4a and 4b of ACFI 12 but there is no reason why they should do so. The Classification Principles have their role to play in the provision of funding. The Accreditation Standards have their role to play in ensuring that care recipients are receiving care. In the case of pain management, they are directed to ensuring that residents are as free as possible from pain. They do not require that the way in which residents’ pain is managed accords with the basis on which their needs were assessed under ACFI 12. All that is required is that they are as free as possible from pain and, if their needs are high as would particularly be the case if assessed under Item 4b, resources would have to be devoted to achieve the Expected Outcome and satisfy that Item of the Accreditation Standards.
In summary, on my understanding of Items 4a and 4b and their place in ACFI 12 and the Classification Principles as well as in the context of the AC Act, I have concluded that the notes to Items 4a and 4b are outside the power of the Minister to make. That does not mean that I have formed the view that the whole of the Classification Principles or ACFI 12 are invalid. In my view, they are valid except to the extent of the notes relating to Items 4a and 4b and set out in the section preceding the 18 Items.
Decision
I am satisfied that, while AHA undertook many of the tasks required by the various directives, I am also satisfied that she did so under the authority, direction and supervision of RP. At all relevant times, RP was the allied health professional responsible for the complex pain management and practice that was assessed as needed by the individual residents. Therefore, I have set aside the delegate’s decision dated 17 December 2013 and confirmed by a decision dated 14 April 2014 in relation to each of the five residents. I remit each decision to the Secretary with a direction that the classification level of each be restored to that immediately preceding the decision dated 17 December 2013.
I certify that the one hundred and nineteen preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………[sgd]........................................................
Associate
Dates of Hearing 15 and 16 July 2015
Date of Decision 13 October 2015
Counsel for Applicant Ms F McKenzie
Solicitor for Applicant Ms A Courtney
Russell Kennedy
Counsel for Respondent Ms K Foley
Solicitor for Respondent Ms J Noble
Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Legitimate Expectation
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Natural Justice & Procedural Fairness
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