Hammond Care Group and Secretary to the Department of Health and Ageing
[2003] AATA 612
•27 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 612
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/1260
GENERAL ADMINISTRATIVE DIVISION ) Re Hammond Care Group Applicant
And
Secretary to the Department of Health and Ageing
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President Date27 June 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutes a new decision that the care recipient should be classified at level 5 in accordance with the Classification Principles 1997.
...............................................
RP Handley
Deputy President
CATCHWORDS
HEALTH AND COMMUNITY SERVICES – Aged Care – classification of aged care recipients – reappraisal of level of care needed by care recipient – Respondent’s review of classification by Applicant – classification changed by Respondent – information that the Respondent may have regard to when classifying care recipient – material to which the Tribunal may or may not have regard in reviewing decision – whether reviewable decision correct on material to which the Tribunal may have regard – held decision under review should be set aside and a new decision substituted that care recipient should be classified as level 5 in accordance with the Classification Principles 1997.
Aged Care Act 1997 ss 7-1, 25-3, 26, 27-1, 27-1(2), 28-2(5), 29, 41-3
Classification Principles 1997
Re Brightwater Care Group Inc v Secretary, Department of Health and Ageing [2003] AATA 124
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Uniting Church Homes – Bethaven Hostel and Secretary Department of Health and Ageing [2002] AATA 479
REASONS FOR DECISION
27 June 2003 Mr RP Handley, Deputy President 1. This is an application by the Hammond Care Group (“the Applicant”) for a review of a decision of a delegate of the Secretary to the Department of Health and Ageing (“the Respondent”) made on 11 April 2002 changing the classification of a care recipient at the Applicant’s dementia specific facility known as “The Meadows” from level 5 to level 6. Following a reconsideration, the decision was confirmed on 31 July 2002.
2. At the hearing, the Applicant was represented by Tom Brennan, Solicitor, of Corrs Chambers Westgarth, Lawyers, and the Respondent was represented by Jeremy Kirk, of Counsel. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (“the T Documents”) together with documents tendered by the parties. Oral evidence was given for the Applicant by Richard Fleming and Angela Raguz.
BACKGROUND
3. The Applicant is a non-denominational, Christian, not-for-profit organisation established about 60 years ago and still operating from the same site in Hammondville, New South Wales. It claims to be an acknowledged leader in dementia care. “The Meadows” is a facility dedicated to dementia care based on that site, designed by Richard Fleming and comprising three group cottages housing 14 residents each. The care recipient whose classification is at issue took up residency at the Meadows on 6 March 2000. At that time, the Applicant lodged an application with the Respondent and received a classification for the care recipient based on her care needs. On 28 February 2002, the Applicant lodged an application for classification with the Respondent, being an annual reappraisal in respect of the care recipient (T14). The classification of a care recipient determines the amount of Commonwealth subsidy that an approved provider of a residential care centre will receive in respect of a care recipient under the Aged Care Act 1977 (“the Act”).
4. On 28 March 2002, a Commonwealth Nursing Officer (“CNO”), acting as a review officer, visited the Meadows and conducted a review of the materials on which the classification of the care recipient was made. On 11 April 2002, the review officer, exercising delegated powers, wrote to the Applicant advising that the classification of the care recipient would be changed from classification level five to classification level six, effective from 6 March 2002 (T12). The basis on which the reclassification was made by the review officer was a change in the care recipient’s ratings for questions 3, 8, 9 and 19 of the resident classification scale:
Q3 Meals and drinks” (Q3) was changed from “B” to “A”;
Q8 Understanding and undertaking living activities” (Q8) was changed from “C” to “B”;
Q9 Problem wandering or intrusive behaviour” (Q9) was changed from “C” to “D”; and
Q19 Therapy” (Q19) was changed from “C” to “A”.
5. On 1 May 2002, the Applicant requested a reconsideration of part of the decision (T10) relating to Q8 and Q19. At the Respondent’s request, the Applicant provided further information regarding the care recipient:
(a)progress notes for the Care Recipient for the following periods (Progress Notes):
(i)9 January 2002 to 14 January 2002;
(ii) 22 January 2002 to 26 January 2002; and
(iii) 1 February 2002 to 22 February 2002.
(b) a “Summary Care Plan” dated 16 February 2002 (Summary Care Plan);
(c)a “Speech/Comprehension/Language Assessment” dated 16 February 2002 (Speech Assessment);
(d)a “Vision Assessment” dated 16 February 2002 (Vision Assessment);
(e)a “Transfer and Mobility Assessment” dated 16 February 2002 (Transfer Assessment);
(f)a “Continence Assessment” dated 16 February 2002 (Continence Assessment);
(g)a “Diversional Therapy Charting and Intervention Assessment” dated 19 February 2002 (Diversional Therapy Assessment);
(h)a “Medication Administration Assessment” dated 15 February 2002;
(i)a “care plan” labelled “Toileting” covering the review period;
(j)a “care plan” labelled “Personal Hygiene” and (relevantly) dated and signed on 6 March 2001, 29 April 2001, 13 October 2001 and 25 November 2001 (Personal Hygiene Care Plan);
(k)a “care plan” labelled “Diversional Therapy” and (relevantly) dated and signed on 19 February 2002 (Diversional Therapy Care Plan);
(l)a “care plan” labelled “Understanding and undertaking living activities” and (relevantly) dated and signed on 6 March 2001, 27 May 2001, 21 October 2001 and 7 December 2001 (Living Activities Care Plan);
(m)a “care plan” labelled “Communication” and (relevantly) dated and signed on 6 March 2001, 8 April 2001, 10 September 2001 and 25 November 2001 (Communication Care Plan);
(n)a “care plan” labelled “Physio-therapy” [sic] and (relevantly) dated and signed on 6 March 2001, 26 July 2001, 29 October 2001, 30 December 2001 and 12 February 2002 (Physiotherapy Care Plan 1);
(o)a “care plan” labelled “Physiotherapy Care Plan” and dated 12 February 2002 (Physiotherapy Care Plan 2).
6. On 31 July 2002, a delegate of the Respondent, having taken into account the relevant material, confirmed the decision under review (T5). On 28 August 2002, the Applicant lodged an application with the Tribunal for a review of the decision. The issues for the Tribunal to determine are the Q8 and Q19 assessments of the care recipient and his classification level. His classification level will turn, in particular, on the Q19 assessment.
Applicable Law
7. The Act, together with the Classification Principles 1997 (“the Classification Principles”) made by the Minister pursuant to s 96-1 of the Act, provide the legislative framework for determining, amongst other matters, Commonweath funding for residential care facilities. Such funding is partly based on the “residential care” – the personal care or nursing care or both - that is provided by an approved provider to care recipients in a residential facility (s 41-3). An approved provider (s 7-1) will be paid a residential care subsidy in respect of a care recipient according to the care recipient’s classification level (s 25-2), based on the level of care needed by the care recipient (s 25-3).
8. An appraisal of the level of care needed by a care recipient is undertaken by the care provider (s 25-3) in accordance with Classification Principles (s 25-3(3)). The appraisal is taken into account by the Respondent together with any other matters specified in the Classification Principles (s 25-1(3)(c)) in determining a classification level for the care recipient (s 25-1(2)).
9. The level of classification of a care recipient is effective for a period of twelve months from the date the classification took effect (s 27-1(2)(a)), although it may be changed during this period if the needs of a care recipient have “changed significantly” (s 28-2(5)). Renewal of a classification involves the care provider re-appraising the needs of the care recipient during the period beginning one month before the expiration of the classification (s 28-3(1)(a)), and the Secretary taking this into account, along with any other matters specified in the Classification Principles (s 28-1(3)). A renewal of a classification must specify the classification level for the care recipient (s 28-1(2)).
10. The Secretary has the power to change such a classification (s 29-1) if the reappraisal is incorrect or inaccurate (s 29-1(1)(a)) or was made incorrectly (s 29-1(1)(b)). However, the classification can only be changed after the Secretary has examined the material on which the classification was based (s 29-1(3)(a)) and any other material or information allowed by the Classification Principles (s 29-1(3)(b)). The Secretary must give written notice of such a change of classification to the approved provider (s 29-1(4)).
11. The Act provides for the reconsideration of a decision by the Secretary at the request of a person whose interests are affected by a reviewable decision (ss 85-1 and 85-5), and for an application to be made to the Tribunal for the review of a decision that has been reconsidered (s 85-8).
12. Part 1 of Schedule 1 of the Classification Principles, the Appraisal procedures, describes the resident classification scale as follows:
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 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.
13. Schedule 2 of the Classification Principles sets out bands of scores related to each level of care. The relevant levels, in so far the decision under review is concerned, are:
Level 6: 28.91 – 39.80; and
Level 5: 39.81 – 50.00.
14.Part 1 of Schedule of the Classification Principles describes Q8 as follows:
This question relates to the care recipient’s ability to remember, understand, plan for, initiate and perform general living activities, and to react appropriately to information provided.
15. The Principles provide that a rating of “B” or “C” should be given in respect of Q8 in the following circumstances (T3):
If the care recipient requires staff to assist him/her to remember, understand, plan for, initiate and perform activities such as deciding whether or not and when to initiate activities such as eating, drinking, grooming and personal hygiene or with whom to initiate social interaction, record B, C or D, according to the level of support required.
If the care recipient needs cues, reminders to understand and react appropriately and can do so for a short period, record B.
If the care recipient has major difficulty remembering and understanding information, and requires frequent repetition and reminding to undertake and complete most activities, record C.
…
Ratings Q8 Understanding and undertaking living activities No difficulty A Understands and undertakes living activities independently. Some difficulty B Needs cues or prompting to initiate, undertake or complete living activities. Major difficulty C Has major difficulty ascertaining, initiating, undertaking or completing most living activities and requires repetition and reminding. Extensive difficulty D Cannot undertake living activities and needs to be shown or have explained every time;
ORUnable to respond to any prompts.
16.Part 1 of Schedule 1 of the Principles describe Q19 as follows:
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.
17. The Principles provide that a rating of “A” or “C” should be given in respect of Q19 in the following circumstances (T3):
If the care recipient requires no therapy, record A.
…
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.
…
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.
Preliminary Issue
18. The parties identified as a preliminary issue for the Tribunal to determine what material or information can be taken into account in the review of the assessment.
19. Before changing a classification under s 29-1(1) of the Act a decision-maker is required by s 29-1(3) to review the classification 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.
Agreed Facts
20. Prior to the hearing in this matter, the parties filed an Agreed Statement of Facts (A1) relating to the reclassification process for the Care Recipient. This document provided a table setting out the assessments made by the Applicant and the Respondent for each of the 20 resident classification scale questions and the associated score for each. A change to the score for Q8 would not result in a change in the classification of the care recipient, whereas a change to the score for Q19 would result in a change in the classification of the care recipient.
Question Applicant’s assessment Applicant’s score Respondent’s assessment Respondent’s score 1 C 0.36 C 0.36 2 B 1.19 B 1.19 3 B 0.67 A 0.00 4 D 14.61 D 14.61 5 A 0.00 A 0.00 6 B 2.22 B 2.22 7 C 5.72 C 5.72 8 C 1.11 B 0.79 9 C 1.58 D 4.00 10 C 1.75 C 1.75 11 A 0.00 A 0.00 12 B 0.28 B 0.28 13 A 0.00 A 0.00 14 D 2.61 D 2.61 15 C 1.98 C 1.98 16 C 0.55 C 0.55 17 B 0.79 B 0.79 18 A 0.00 A 0.00 19 C 6.10 A 0.00 20 A 0.00 A 0.00 Total 41.52 36.85 Classification Level 5 Level 6
21. Agreed Facts relevant to Q8 Understanding and undertaking living activities:
(a)In its application for classification (T-14) the Applicant gave the Care Recipient a rating of “C” in respect of Q19. A rating of “C” corresponds with a score of 6.10 in Part 2 of Schedule 1 of the Principles (T-3).
(b)The Review Officer decided, and the Delegate confirmed, that the Care Recipient should be given a rating of “A” in respect of Q19. A rating of “A” corresponds with a score of 0.00 in Part 2 of Schedule 1 of the Principles (T-4).
(c)The Speech/Comprehension/Language Assessment (T-8A), dated 16 February 2002, assessed the care needs of the Care Recipient (in part) as follows:
“11.Comprehension is affected by effects of Dementia. Requires things to be repeated and requires prompts for all ADLs.”
(d)The Transfer and Mobility Assessment (T-8A), also dated 16 February 2002, noted the following under the heading of “Transfers”:
(a)“Does resident require 1-2 staff to physically assist with transfer?” No.
(b)“Does resident require staff to verbally prompt, encourage and supervise with transfer?” No.
(c)“Can the resident transfer independently, but the staff are required to stand by and supervise with transfer?” Yes.
Under the “Mobility” heading, the following matters (amongst others) are noted:
(d)To get the resident from one designated area to another, the resident requires individual supervision and verbal instructions & prompting; and
(e)“Appropriate Distance walked unaided (if resident can walk unaided): Short distance unsafe”.
(e)The Diversional Therapy Charting and Intervention Assessment (T-8A), dated 19 February 2002, stated:
“Leisure limitations
Leisure strengths & competencies
Physical: Vision impairment. Hearing impaired
Physical: Wear glasses. Extra time for comprehension & understanding
Cognitive: Comprehension deficit due to dementia.
Cognitive: [no entry]
Social: Confused speech difficult social interactions personal space issues to other residents
Social: Small group. Staff assist in related conversation & social interaction.
Emotional: Agitation & distress related to dementia and self expression
Emotional: Requires reassurance & emotional support
Effective Functioning: Limited functions & activities independently
Effective Functioning: Staff assist, organise & supervise activities.
(f)The “Understanding and Undertaking Living Activities” Care Plan (T-8A) was drafted in the following terms:
Problem:Poor comprehension related to cognitive impairment.
Management/Intervention: Needs prompting for all ADL’s on all occasions. Requires frequent repetition and reminding to undertake and complete most activities.
Problem:Confused and disoriented to time and place.
Management/Intervention: Orientate to the clock on the wall by telling the time. Remind him where he is, the name of the facility and the suburb.
Problem: Unable to make bed.
Management/Intervention: Staff attend to bed making and general room cleanliness.
In the “Date & Sign” column of the Care Plan there are listed five (5) dates – 6 March 2001, 27 May 2001, 21 October 2001, 9 December 2001, and 26 March 2002. In the “Evaluation” column preceding that column there are four (4) comments next to each of the last four (4) dates, which read, “continued. No change”, “Plan effective” (x2), and “Plan reviewed and effective”. There is no comment in the “Evaluation” column next to the first date, 6 March 2001.
(g)The Progress Notes (T-8A) in relation to living activities read in part as follows:
13.1.02
14.10 hrs
Resident very confused this morning. SDC prompted and assisted resident with dressing for the day. Resident went back to his room and changed again back into his pyjamas. SDC redirected resident back into his room and assisted with dressing correctly…
22.1.02
21.10 hrs
Resident came out of bedroom fully dressed in day clothes at 9.00 pm. SDC prompted back to room and assisted back into pyjamas…
24.1.02
14.07 hrs
Resident very confused and not able to comprehend simple instructions. SDC prompted and guided with dressing and all personal ADL’s…
26.1.02
15.05 hrs
Resident could not comprehend simple instructions. SDC prompted and fully assisted him with dressing grooming…
1.2.02
Resident very confused asking how old he was x6 this shift, SDC told him each time…
3.2.02
14.10 hrs
SDC prompted to dress correctly. Prompted + encouraged out of room to socialise with others…
4.2.02
14.00 hrs
Resident prompted to oral hygiene & shaving after SDC set it up…
5.2.02
14.40 hrs
Resident prompted to put on his u/pants correctly as wrong way round. Prompted oral hygiene & shaving. Razor cleaned & replaced…
6.2.02
13.340 hrs
Resident assisted SDC clean resident’s room by changing bed linen, making his bed + dusting…
7.2.02
DIVERSIONAL THERAPY
Resident has been involved in small & individual activities, ADL’s singalongs, dancing + walks…extra time needed for understanding his desires…
7.2.02
Resident prompted out of bed. Resident encouraged to daily dress assisted by SDC. Resident prompted to meals and medication. Resident wandered around cottage…
8.2.02
SDC prompted and set up electric shaver and supervised resident while shaving…
8.2.02
RCS
DAY 1
1500 hrs
Mobility. Resident unable to find meal table on some occasions. Staff prompt and direct to desired destination to dining area and other parts of the cottage with verbal and physical prompts. At time cannot negotiate stairs. Resident requires one staff member to help and assist with climbing of stairs and on and off bus. Staff prompt to use hand rails.
9.2.02
RCS
DAY 2
[Care Recipient] wears glasses… Staff are required to ensure daily that they are kept clean & in Good repair. Staff are required to prompt & assist [Care Recipient] to put on and remove Glasses daily...
10.2.02
RCS
DAY 3
Meals and Drink. Resident is unable to prepare own meals due to hand tremors. Orientate [Care Recipient] to meal times. Direct him to where he sits at dining table. Supervise [Care Recipient] at meal times and encourage fluid intake. Resident is unable to pour hot fluids for safety
…
Comprehension and awareness: due to effects of Dementia [Care Recipient] has a ¯ understanding of his own safety. Staff assist and constantly observe [Care Recipient] when in kitchen area. Staff also ensure that electrical cords are kept clear from wet areas. [Care Recipient’s] comprehension is also ¯ Staff are required to keep tasks short and straight to the point. Staff also have to repeat request ask and give reassurance frequently throughout the day.
10.2.02
RCS
DAY 3
P.M. Shift
Meals & Drink. Resident is unable to prepare own meals due to hand tremors. Staff to orientate [Care Recipient] at meal times. Direct him to dining table and supervise him at mealtimes. Staff to encourage fluid intake…
RCS
DAY 3
Cont
Comprehension and awareness: [Care Recipient’s] comprehension is low. Staff to keep tasks and requests short and straight forward. Staff to give [Care Recipient] reassurance throughout the day…
10.2.02
Personal hygiene: [Care Recipient] is fully assisted and prompted o/c all aspects of showering. Staff are required to set up H2O temperature. Prompt [Care Recipient] & assist to undress and wash. Staff are required to wash & dry him. Prompt & assist o/c dressing. Toileting [Care Recipient] is continent and this is maintain by staff directing him at times and also prompting him to sit and use his bowels this is done regularly each day 3-4/24. Staff also required to prompt him to hands and flush toilet. [Care Recipient] also requires to be directed to toilet at times.
10.2.02
21.00 hrs
RCS
DAY 4
Personal hygiene. [Care Recipient] is assisted to remove clothing before showering. [Care Recipient] prompted to shower to feel temperature of water that SDC has set up and adjusted. SDC soaps up washer and washes back. Then prompts resident verbally and hand prompts to wash all parts of body. SDC applies shampoo to hair and asks resident to close eyes to wash shampoo out. Prompts and supervision to dry body thoroughly. Toothpaste placed on brush and prompts to clean teeth…
12.2.02
RCS DAY 5 RCS DAY 6
15.00hrs
Medication. Staff to administer medication to [Care Recipient]…
Social and human needs – Resident needs staff to encourage to interact with other residents due to memory loss…
[undated]
SDC also plugged in resident’s electric razor and supervised shave, SDC then cleaned resident’s razor and put it away.
Social & human needs – Care Recipient. Resident encouraged to come out of his room to interact with others as [Care Recipient] will spend the whole day in his room.
…
15.2.02
20.50 pm
RCS
DAY 8
Social & human needs – Staff need to encourage resident out of bedroom of a day time as resident spends a lot of time in bedroom. Resident is encouraged to interact with fellow residents due to social isolation related to dementia and confusion, staff need to read all personal mail and cards to resident and give business mail to family.
Personal hygiene – Staff need to set up shower area, lay clothes on bed to be put on. Staff turn tap on and adjust water temp and give verbal prompts assist with washing back assist to wash hair by putting shampoo in hair, prompts to dry self and prompts to dress as resident is unable to initiate shower process and personal hygiene.
16.2.02
RCS DAY 9
Danger to self and others – Danger to self outside a secure environment.
18.2.02
Resident up + dressed early AM … Prompted oral hygiene
18.2.02
20.45pm
RCS DAY 11
Summarise All Care Needs. Staff need to speak to Resident in short and simple words – sentences repeat information as required. Give Resident adequate time to express himself also speak to resident clearly loudly and directly. Staff to direct desired destination eg. Dining room table and bedroom with verbal and physical prompts, Resident is required one staff member to assist on and off the bus when climbing stairs. Prompted to use hand rails. Staff need to direct resident to all meals set the table and encourage fluid intake. Staff to pour all hot fluids for safety, staff need to set up shower and adjust water temperature. Give verbal prompts to ensure task is completed. Assist with washing and dressing for day and evening, … Resident needs prompting for all ADL’s on all occasions, Resident occasionally needs to be diverted away from female residents and divert his attention to a task as he invades female resident’s space. Resident needs prompts and direct resident to the toilet. Staff to assist him with hygiene and changing with underwear. Resident needs encouragement to involve himself in all activities and encourage to interact with other residents.
-
18.2.02
20.55 hrs
RCS
DAY 11 cont.
Staff need to supervise resident on all outings, supervise when in kitchen and read all personal mail to resident. Staff administered medication … Staff to ensure that medication has been taken with adequate water as needed.
18.2.02
19.2.02
3.05 am
Resident opening his doors. Resident up and dressed in day clothes, laying on top of his bed. Staff orientate him to time.
19.2.02
15.15 hrs
Resident prompted to oral hygiene & shaving after SDC set up.
20.2.02
14.00 hrs
Resident encouraged oral hygiene and shaving after SDC set it up …
22.2.02
14.35 hrs
Prompted to dress correctly …
22.Agreed Facts relevant to Q19 Therapy:
(a)In its application for classification (T-14) the Applicant gave the Care Recipient a rating of “C” in respect of Q19. A rating of “C” corresponds with a score of 6.10 in Part 2 of Schedule 1 of the Principles (T-3).
(b)The Review Officer decided, and the Delegate confirmed, that the Care Recipient should be given a rating of “A” in respect of Q19. A rating of “A” corresponds with a score of 0.00 in Part 2 of Schedule 1 of the Principles (T-4).
(c)The Physiotherapy Care Plan, as at the date for reappraisal mentioned in paragraph four (4), above, namely 28 February 2002, was described in two (2) documents. The first was drafted in the following terms (T-8A):
Problem: ↓ mobility in shoulders, ® hip + neck
Management/Intervention - not c/o any pain
(1) DAILY limb X’s x 15 mins (group)
(2) long walk in garden DAILY x 10 mins
GoalTo prevent any further loss of j’t restriction + maintain strength
From the comments made in the “Goal” column of this first document was drawn an arrow that points to the signature of B Southam in the “Date and Sign” column. Under her signature is the date, 12 February 2002.
The second document detailing the Physiotherapy Care Plan (T-8A) was also signed by B Southam, and also dated 12 February 2002. It read as follows:
Ambulation: Independent
…
Transfers: independent w/ prompts
Range of movement ↓R (in circle) hip + both shoulders – 90 (degrees symbol) + neck
Interventions: - due to j’t restrictions in shoulders, neck and R (in circle) hip + TKR R, [Care Recipient] would benefit from DAILY limb X’s x 15 mins + a good walk in the garden DAILY
- not c/o any pain at present
B Southam P/T.”
(d)The Diversional Therapy Care Plan (T-8A), dated 19 February 2002, was written as follows:
Problem:Anxiety & depression related to dementia. Unable to initiate activities due to dementia.
Management/Intervention: Staff assist 1x1 supervision required throughout
2-3 times weekly
Prompt & assist [Care Recipient] outdoors
[Care Recipient] to walk to duckpond around Hammond Village 40 mins
Walk used as reminiscing & awareness.Goal:To reduce self isolation & depression
To reduce inside cottage fever…”
(e)The Progress Notes (T-8A) in relation to physiotherapy and diversional therapy read in part:
PHYSIOTHERAPHY 12/2/02 – care plan written. B. Southam
- - DAILY group limb x’s + walk. BS
…
RCS PHYSIO-THERAPY – Staff need to encourage
DAY 6 [13/2/02] 1500 hrs [care recipient] to exercise limbs daily for 15 minutes due to diminished mobility in shoulders, right hip and neck.
Staff need to prompt resident out of his room for a walk in the garden for 10 minutes a day.
…
RCS PHYSIO-THERAPY – Staff need to prompt
DAY 6 [13/2/02] out of his room as resident spends a lot of timin
20:45 pm bedroom SDC prompts resident to go for a short walk to the duck pond with fellow resident for daily exercise and prompts to feed the ducks before meal time for motivation and exercising limbs.
…
19/2/02 Completed social profile & diversional therapy
DIVERSIONAL assessment forms. [Care Recipient] requires THERAPY staff intervention to support his interaction with other Residents due to cognitive impairment. Staff support1:1 in activities Walks to duck pond, Musical programs & ADL’s Lynette Overton DT.
Evidence
Richard Fleming
23. Mr Fleming provided a statement dated 14 March 2003 (A3). He is a clinical psychologist who has worked with the elderly for more than 25 years and has been designing dementia care facilities since 1984. He acts as a consultant both in Australia and overseas. Mr Fleming joined the Hammond Care Group in 1995 and established a Dementia Services Development Centre of which he continues to be the Director.
24. Mr Fleming said that while acting as a consultant in 1994, he was asked to critique plans for a dementia care facility proposed by the Hammond Care Group at Hammondville.. As a result of his critique, those plans were abandoned and new plans prepared with his providing design advice to the architect and management of the Hammond Care Group. Mr Fleming stated that his specific goal was:
to build an environment, the Meadows, that would reduce the confusion, agitation and hopelessness usually experienced by people living in residential care. (A3 para 5)
25. Mr Fleming said that dementia is a progressive illness in which environmental factors can have a significant influence. The aim with the Meadows was to reduce adverse environmental factors and provide a prosthetic environment; in particular, to provide as relaxed and homelike environment as possible. At the same time, the Meadows was also designed to facilitate the work of staff by enabling them to supervise residents and be pro-active in their care.
26. Mr Fleming said he has been heavily involved in training staff at the Meadows and acts as a consultant to them. All the staff are specialised residential care workers who have the skills to provide appropriate support for residents. Each of the three 14 bed cottages at the Meadows have two staff on duty during the day. Mr Fleming said the design of the Meadows requires the provision of this level of staff. He said that the New South Wales Department of Health units for the Confused and Disturbed Elderly (the CADE Units) have only eight beds per unit – but that is because the Department has more funding available.
27. Mr Fleming was asked about a graph attached to his statement which shows a significant improvement in Psychogeriatric Rating Scores as a result of transferring patients to a more appropriate environment. He said their needs stay the same but the environment addresses part of their needs so that less intervention is required. For example, in a standard environment, a patient’s symptoms such as confusion would be greater.
28. Mr Fleming said the principles used in designing the Meadows are now widely used in the design of other facilities, for example in the CADE Units built by the New South Wales Department of Health in the late 1980s and early 1990s (A3 Annexure B p1). Generally, the facilities for the treatment of dementia have improved in recent years, but the Meadows is still the clearest example of the application of those principles.
29. Mr Fleming was asked about the Case Notes for the care recipient. He said the physiotherapist had identified the need for the care recipient to have a daily walk. It is up to the staff in the cottage where the care recipient is located to determine the opportune moment to take him for a walk. Not taking him for a walk at a pre-determined time avoids a regimented approach to his care. With limb exercises, the environment of the Meadows assists staff in identifying an appropriate time. Mr Fleming said the care recipient would need a greater level of care in a less supportive environment. The Meadows environment influences the provision of physiotherapy – it is designed for residents to walk safely with low levels of anxiety. Part of the aim is to enable physical activity to take place as part of normal life.
Angela Raguz
30. Ms Raguz provided a statement dated 14 March 2003 (A4). She has a Bachelor of Nursing degree from the University of Sydney and is a State Registered Nurse. She was appointed Manager of the Meadows in April 1998 and is currently Deputy Regional Manager (South) with continuing responsibility for managing the Meadows and “The Pines” dementia care facilities. She has also worked in other Hammond Group care facilities.
31. Ms Raguz said all the staff at the Meadows are specifically trained Special Dementia Carers. The majority have attained an Assistant-in-Nursing Certificate, Level 3. All are multi-skilled. Ms Raguz said on joining the Meadows, every staff member undertakes an orientation and induction program and is “buddied” with an experienced staff member. The induction program includes sessions by herself, the physiotherapist and the educator. The physiotherapist provides training on:
Reading and interpreting physiotherapy care plan 5, in assessment processes and what information she requires from staff on a day to day basis … manual handling, therapy implementation so implementing care plans … (Transcript 1 May 2003 p51)
There are three shifts – two during the day and one at night. During the day shifts, two staff are allocated to each cottage, one of whom will be the case manager for each resident. The Special Dementia Carers are employed on a permanent part-time basis and will pick up extra shifts if someone is sick. Agency staff are not used at the Meadows.
32. Ms Raguz said in the Meadows, the routine is driven by the needs of the residents rather than the needs of the staff. Staff look for “windows” and provide therapy and support when required – allowing flexibility in meeting the resident’s needs. A case manager is responsible for making a resident’s care needs known to other staff and will be familiar with the resident’s care plan. The case manager is responsible for implementing the resident’s care plan.
33. Ms Raguz confirmed that the policy at the Meadows since the care recipient became a resident on 6 March 2000 is that the physiotherapist makes an initial assessment of the resident within 21 days of admission, and then every year for their annual review or otherwise if their condition is deteriorating. If a resident has a physiotherapy care plan involving therapy, the Special Dementia Carers will often be responsible for providing the therapy in accordance with the physiotherapist’s instructions and in accordance with the training provided to the Carer. The Carer will phone the physiotherapist about every 12 weeks to report on progress and to ask whether she wants to see the resident. Usually, the physiotherapist does not unless there is something to indicate a need to do so.
34. Ms Raguz acknowledged that a fairly detailed Care Plan is needed and, “in light of potential literacy issues” among the Carers, it also needs to be clear so that they can understand what it means in order to provide good care (Transcript 1 May 2003 p72).
35. Ms Raguz said she was responsible for contact with the Department over the care recipient’s case. At no time did anybody from the Department observe the care recipient or interview his wife about his care needs. Nor did anybody ask Ms Raguz about the role of the physiotherapist in the care recipient’s case or about the nature of his care plan.
36. Ms Raguz said because of the care recipient’s dementia, he requires staff input and guidance on what to do next. He needs prompting to initiate activities such as toileting, dressing etc and, with regard to walking, needs assistance and/or supervision to walk even short distances. “Prompting” is required at each stage of any activity, for example at each stage of shaving, showering or dressing. For example, with shaving, the care recipient would need to be reminded to shave and then how to go about each step in the process:
Opening the vanity to actually find shaving cream, turning the taps on, adjusting water temperature, putting the shaving cream on his face, handing him the razor … leading his hand to his face … rinse the razor in between … each step of the process needs to be initiated. (Transcript 1 May 2003 pp55 – 56)
37. Ms Raguz said the care recipient is “unsafe walking unaided. He requires somebody’s assistance and supervision to walk” (Transcript 1 May 2003 p57). He is assisted in taking structured walks at least three times per week as part of his physiotherapy care plan but this also addresses his diversional therapy needs in so far as it reduces his agitation at the same time. The length of the walk will be decided upon by the Special Dementia Carer working at the particular time and will depend on the level of the care recipient’s confusion and agitation on that day. The physiotherapy care plan also states that the care recipient is to have daily limb exercises for 15 minutes. The goal of the exercises and the daily walk is to prevent any further loss of joint mobility and maintain the care recipient’s strength.
38. Ms Raguz described three categories of walk undertaken by the care recipient: an average walk of about 90 metres which takes about 10 minutes; a long walk of about 150 metres which takes about 15 minutes; and a very long walk of about 150 metres which involves leaving the Meadows’ closed environment, requires greater supervision, is unfamiliar and confronting for the care recipient, and takes at least 20 minutes. Ms Raguz said she is confident the care recipient takes at least three such walks a week. Walks are required daily by the care recipient’s physiotherapy care plan but the care recipient is not always able to walk every day, for example if he is agitated. After a walk, the care recipient may go and visit one of the other cottages and so be out for more than 20 minutes.
39. Ms Raguz said the care recipient does not stand out among the other residents. She generally sees him every day but is not involved in the hands on delivery of care. His restricted mobility would be a consequence of arthritis. She did not claim a “D” rating for therapy for the care recipient (Q19) because his progress notes did not indicate daily therapy – she was not confident that he was taking daily walks.
40. Ms Raguz said in a situation without the Meadows’ supportive environment a staff member would not be able to supervise and monitor residents through visual contact. The environment at the Meadows encourages residents to walk because of its design features, allowing residents to see where they are going and to follow a path. The Meadows environment is designed to permit greater flexibility in meeting residents’ needs. In her statement (A4), Ms Raguz said at paragraph 25:
From my experience in caring for dementia sufferers [the care recipient] would require a higher degree of staff involvement, in terms of frequency of attendance, and the intensity of those attendances, in relation to his need for assistance with activities of daily living if he was not cared for at the Meadows. [The care recipient’s] wife has told me that he is calmer when he can see the toilet, (an important design principle, as mentioned in paragraph 22(c) above), and that he is more agitated when he is away from the Meadows, such that [his wife] is no longer inclined to take him on outings.
41. Ms Raguz said the physiotherapist, Barbara Southam, is employed full-time at the Hammond Village, which comprises four aged care facilities with approximately 300 residents in total. Exercises nominated for a resident in a physiotherapy care plan are supervised by the Special Dementia Carers who, for example, might go through exercises with residents. The physiotherapist provides each cottage with an exercise tape to assist the carers lead the residents through different exercises. Such interventions by Special Dementia Carers to assist residents are a common sense approach to putting a therapy plan into effect. Activities nominated in a care plan are provided from the date of the plan. Thus, the therapy nominated in the care recipient’s physiotherapy care plan dated 12 February 2002 and diversional therapy plan dated 19 February 2002 would have been provided from those dates.
42. In her statement (A4) at paragraph 20, Ms Raguz said following the redesign of the care recipient’s care plans, the staff provided therapy to the care recipient in the following manner:
(a) accompanied [the care recipient] on walks for a minimum of ten (10) minutes each, at least three (3) times per week; and
(b)assisted [the care recipient] to perform limb exercises at least three (3) times per week, individually in his room. The daily limb exercises lasted for at least 15 minutes at a time, and were especially focussed on exercising the shoulders. Examples of such exercises include:
(i) involving [the care recipient] in ball games;
(ii)prompting [the care recipient] to put his hands in the air, behind his head, behind his waist and on his shoulders and also to rotate his elbows; and
(iii)accompanying [the care recipient] on walks in the garden or around the
cottage.
43. Ms Raguz said the care recipient’s care plan with respect to Q8 Understanding and undertaking living activities was initially prepared on 6 March 2001, but has been reviewed on a number of occasions since (27 May 2001, 21 October 2001, 9 December 2001, 26 March 2002) and found to be still effective. Examples of the assistance provided to the care recipient with respect to the activities of daily living include (A4 para 24):
(a) prompting [the care recipient] to dress correctly and encouraging him out of his roo m to socialise with others;
(b) assisting and/or prompting [the care recipient] to undress, and wash and dry himself daily;
(c)assisting [the care recipient] to wash and change soiled underwear;
(d)assisting and prompting [the care recipient] to clean and dust his room, and change his bed linen;
(e) reminding [the care recipient] at meal times, directing him to his place at the table, setting the table for him, and pouring all hot fluids for his safety;
(f) prompting [the care recipient] to the toilet at two (2) to three (3) hour intervals;
(g) assisting with oral hygiene, grooming and shaving, including setting up the shower and toiletries, adjusting clothing and cutting finger and toe nails;
(h) encouraging fluid intake;
(i) reminding [the care recipient] where he is and what time it is;
(j) ensuring [the care recipient’s] glasses are clean and reminding him to put them on and take them off daily;
(k) supervising [the care recipient] when he is in the kitchen, for safety, in particular to keep knives and chemicals away from him;
(l) assisting [the care recipient] on all outings, including getting on, and off, the bus, crossing the road, and using stairs; and
(m) administering medication.
44. Ms Raguz said over the past four years she has been involved in four departmental reclassifications of care recipients. This is the only matter in which the Department has disagreed with her assessment. In the weeks before a resident’s annual reappraisal is due, the resident’s progress notes are more carefully kept so that the person’s needs can be identified. She is aware that reappraisals are made substantially on the documents and that, therefore, the documentation for a resident is important for the reappraisal process. More generally, the progress notes for residents are an important source of information and management tool. Ms Raguz expects progress notes to be maintained daily for all residents and she emphasises this to staff.
45. Ms Raguz said her preference would be for the progress notes to be used for “exception reporting”: “so that if something is different to what is on the care plan, that’s when the progress notes entry needs to be made” (Transcript 1 May 2003 p66). However, this is not yet feasible at the Meadows, in particular given the level of skills of the carers. In the weeks before a resident’s annual reappraisal, more careful progress notes are kept for the purpose of the reappraisal and emphasis is given in a to particular activities/needs on different days. For example, emphasis might be given to recording in the notes matters related to Q19 Therapy on two days, and then matters related to other questions on other days. This is a way of recording the relevant information required for the 20 questions of the Classification Principles. Otherwise, staff could spend all day writing up progress notes.
46. Ms Raguz said a person’s rating for a particular question relies primarily on the care plan but with reference to the progress notes. If the notes differ fundamentally, this would suggest the care plan needs revising. So, for example, in respect of Q5 Toileting, she rated the recipient as “A” relying on the care plan.
Submissions
Applicant
41. Mr Brennan, for the Applicant, said the Meadows affords three main benefits to residents: first, as a result of its physical design; second, as a consequence of its staffing model; and, third, as a result of its case management approach involving two Special Dementia Carers being allocated to each cottage during the day to facilitate a client-centred approach to care.
42. Mr Brennan said approved providers have an obligation under the “Quality of Care Principles 1997”, which like the Classification Principles are delegated legislation under the Act, to deliver the care identified by a physiotherapist in respect of a care recipient who has been classified according to the resident classification scale (Transcript 27 May 2003 p6). (For example, s 18.6(1) requires an approved provider to provide the care or service for a resident identified by a health professional.) It is in the interest of the approved provider to provide an accurate appraisal of a care recipient to facilitate classification by the Respondent pursuant to s 28-1(1) of the Act.
43. With regard to Q8 Understanding and undertaking living activities, Mr Brennan submitted that the care recipient should be rated as a “C”.. The evidence is clear that he needs frequent repetition and reminding in relation to such activities as drinking, personal hygiene and social interaction. This is only not required for toileting and eating and even then he needs prompting and supervision to start the activity. His Speech/Comprehension/Language Assessment (T8A) dated 16 February 2002 states:
11. Comprehension is affected by effects of Dementia. Requires things to be repeated and requires prompts for all ADLs [Activities of Daily Living].
The care recipient’s “Understanding and Undertaking Living Activities” Care Plan, identifies the problem as “poor comprehension related to cognitive impairment” and the management/intervention as:
Needs prompting for all ADL’s on all occasions. Requires frequent repetition and reminding to undertake and complete most activities.
Examples of assistance provided to the care recipient with ADL are given by Ms Raguz in her statement (A4 para 24) and in oral evidence.
44. With regard to Q19 Therapy, Mr Brennan conceded that it is only physiotherapy required by the care recipient which is relevant in this matter, diversional therapy being the subject of a claim under Q14 Other behaviour. Mr Brennan noted that the care recipient’s Transfer and Mobility Assessment dated 16 February 2002 (T8A) states, in relation to the appropriate distance he can walk unaided, “short distance unsafe” due to his dementia. Mr Brennan said this document was not taken into account by the delegate. If the care recipient’s care plan and progress notes are taken into account, it is clear that he can only go for a walk with staff intervention.
45. Mr Brennan submitted that the care recipient’s care needs at the date of the reappraisal require, as the Physiotherapy Care Plan indicates, both daily limb exercises and a daily long walk. The intervention stated to be required in a second document detailing the Care Plan and dated 12 February 2002 is due to joint restrictions in shoulders, neck and right hip and right total knee replacement. Ms Raguz described in evidence what was involved in a walk for the care recipient and she also described how the Carers undertake exercises with the residents.
46. Mr Brennan said in an aged care environment, walks could be considered “therapy”. The care recipient cannot walk even a short distance unaided – for him to walk anywhere requires assistance. It is the taking of him for a walk which is the therapy provided, facilitating the maintenance of his joint mobility and also addressing his diversional therapy needs related to depression and self-isolation. Mr Brennan contended there is nothing to suggest that therapy is only provided by staff – for example, relevant activity could be prompted by a video.
47. Mr Brennan emphasised that it is the care recipient’s care needs and the documentation of those care needs which is the resident classification scale’s focus. These needs are identified in his care plan. The Classification Principles do not require the keeping of progress notes, although such notes may be relevant if a person’s care needs are being reviewed. Mr Brennan said although Ms Raguz’ aim was to have a system of exception reporting, this has not been achieved. The current system is to give particular focus to the resident classification scale questions in the progress notes in the period leading up to the annual reappraisal. In that context, they provide sufficient documentation. It is not practical to require the provision of every service to be recorded on every occasion in the progress notes.
48. Mr Brennan contended that “The Residential Care Manual” tendered by the Respondent (R1) was merely an administrative guide to which the Tribunal could have regard for assistance in clarifying ambiguities. The Manual should not be taken to create either substantive or procedural rules.
49. Mr Brennan submitted that the CNO in this matter did not seek to understand the staffing and other arrangements in place in relation to the care recipient’s needs.
Respondent
50. Mr Kirk, for the Respondent, said the classification scheme aims to facilitate the distribution of scarce resources according to properly identified and real needs. An appraisal is made by the care provider with the Respondent making the classification. The scheme requires proper documentation and a checking mechanism is provided so that reviews can be conducted. The classification system selects 20 issues considered important and to which weights have been attributed. Whilst not perfect, the scheme, including the Classification Principles, must be applied.
51. Mr Kirk submitted that it is implicit in the Scheme that documents are a primary source of material upon which reviews of classification are undertaken. The Guidelines for the interpretation of resident classification scale questions state that the scale “is completed against a clearly defined and documented plan of care”.. The Residential Care Manual (R1), which he said is Commonwealth policy, also emphasises that applications for classification “must be based on written evidence about the care needs and care interventions provided for the resident” (para 5.6) and that reviews look “at all documentation on which the original appraisal was based” (para 5.10.6). Mr Kirk submitted that the Manual indicates that assessment is not just of the resident’s needs but also about the care provided. He noted from Ms Raguz’ evidence that she clearly understood the need for documentation and relied on this, including the care recipient’s progress notes, in making the application.
52. Mr Kirk submitted that the design and claimed efficiency of the Meadows are irrelevant to the issues for determination in relation to Q8 and Q19, which focus on the criteria for different rates. With regard to Q8, the core issues is whether the care recipient experiences “major difficulty” (C) or only “some difficulty” (B). This concerns the mental capacity of the care recipient: whether he is able to ascertain and initiate, and his ability to undertake and/or complete most activities of daily living; or whether he needs cues or prompting but, once prompted, can undertake or complete the activity.
53. While Mr Kirk conceded that the care recipient needs significant prompting and assistance in relation to personal hygiene, he is still substantially independent in toileting. Moreover, Ms Raguz’ evidence as to his shaving was not direct evidence of his needs since she is not personally involved in providing care. Mr Kirk also noted some overlap with other questions, particularly Q2 Mobility and Q7 Bowel Management.
54. With regard to Q19, Mr Kirk said the core issue is whether the care recipient should be rated ‘A’ (“no support”) or ‘C’ (“major support”). Mr Kirk contended that there are four reasons why the rating should be ‘A’. First, there is no clear therapy plan with sufficiently stated goals addressed to the care recipient’s needs and setting out the means of achieving those goals. The Guidelines to the Appraisal Procedures require a “clearly defined and documented plan”. Q19 requires that “therapy is documented as a care need” and that while the program does not need to be implemented by the therapist, the therapist must regularly evaluate the effectiveness of the therapy program. If therapy is provided in a group situation by another staff member or a volunteer under the direction of the therapist, the Manual (R1) requires the therapist to evaluate the effectiveness of the therapy for the care recipient in that situation (R1 p5-120 “Group Situation”), ensuring that the therapy is directed to the person’s needs.
55. Mr Kirk submitted that the Physiotherapy Care Plan of 28 February 2002 was not specific enough. He noted that a later plan is more detailed but should be excluded because it did not exist at the time the application was lodged.
56. The second reason why the rating should be an ‘A’ is that there is no sufficient evidence that the therapy was provided or was provided in a way that is attributable to being therapy. Mr Kirk said that to claim an activity as therapy, it must be addressed to a specific need. Here Ms Raguz indicated that the care recipient went for walks before the preparation of the Care Plan. In any event, there appeared to be no documentation to facilitate an evaluation of the activity by the physiotherapist. Ms Raguz’ evidence is that the Carers phone the physiotherapist about every three months to discuss progress on a plan.
57. The third reason is that it has not been established that taking walks is therapy. Going for walks is an ordinary human need and therapy is not about providing for such human needs, for example as to exercise or company. Therapy must be specifically directed to particular needs of the care recipient.
58. Lastly, the claim in respect of the provision of walks and exercise is covered by other questions; for example, Q8, Q12, Q14 and Q15. In particular, Q12 Emotional dependence deals with managing needs from withdrawal or depression. Part of the goal of the Diversional Therapy Plan dated 19 February 2002 was to address the care recipient’s anxiety and depression and reduce self-isolation.
Application of the Law and Findings
59. First, with regard to the preliminary issue raised by the parties, the Tribunal had regard to the Tribunal’s decision in Re Brightwater Care Group Inc and Secretary, Department of Health and Ageing [2003] AATA 124 which reviewed the relevant authorities and followed the Tribunal decision in ReUniting Church Homes – Bethaven Hostel and Secretary, Department of Health and Ageing [2002] AATA 479 on this issue. In ReBrightwater, at paragraph 63, the Tribunal held 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.
60. In the absence of any evidence to the contrary, the Tribunal inferred that the relevant decision to renew the classification of each care recipient under s 28-1(1) was made on the day on which the “Application for Classification” form was lodged by the Applicant with the Department. Thus, the Tribunal drew a distinction between renewing the classification; a decision made under s 28-1(1), taking account of the matters in s 28-1(3), and changing the classification, a decision made under s 29-1(1). Section 29-1(3)(a) requires that in changing a classification, the Secretary must have regard to the material on which the classification was based, ie the decision under s 28-1(1).
61. In the present matter, the Tribunal sees no reason to depart from the Re Brightwater (supra) decision on the preliminary issue and no need to conduct the same review of authorities undertaken there. Relying on that decision, the Tribunal will, therefore, limit its examination of relevant material to that which was in existence at the time the “Application for Classification” form was lodged, which in this case was 28 February 2002. However, as the Respondent recognises in its Statement of Facts and Contentions (at paragraph 6), this does not preclude the Tribunal from taking account of other relevant evidence where, for example, there is information which assists in understanding the material upon which the classification was substantially based. Such a view is consistent with the reference in s 29-1(3)(b) to “any other material or information of a kind specified in the Classification Principles”.
62. With regard to the material upon which the classification of a care recipient is based, the Tribunal notes that the Appraisal procedures set out in Schedule 1 of the Classification Principles emphasise the importance of documentation in the assessment process. The Guidelines to the procedures state:
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 Applicant. The care needs will have been documented and the care plan will state what services are to be provided to meet those care needs.
63. Mr Brennan pointed out that this statement does not refer to a requirement that the services provided to a care recipient should be documented. However, in the Tribunal’s view it is implicit in the case of a renewal that any assessment of a person’s care needs for the purpose of preparing a care plan should be based in part on past experience in caring for the person and include a record of the services provided. This is borne out by the Department’s policy set out in the Residential Care Manual (R1). The Tribunal notes that in the case of relevant government policy, in the absence of a statutory obligation to do so, the Tribunal will ordinarily apply that policy unless it is unlawful or its application would cause injustice, or there are other cogent reasons for not applying it in the circumstances of the particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634 at 645.
64. In the present case, obviously it is to the legislation, in particular the Classification Principles, to which the Tribunal primarily looks. However, in the Tribunal’s view, the Residential Care Manual may also be considered to the extent that it is not inconsistent with the legislation. Relevantly, the Manual provides in paragraph 5.5 that “Applications for Classifications must be based on written evidence about the care needs and care interventions provided for the resident”. Paragraph 5.10.3 states that “the Secretary will examine the material up to and including the date the application was completed”. Paragraph 5.10.6, which describes the review process, states “the Review Officer(s) looks at all documentation on which the original appraisal and the Application were based”. This may include the resident’s care plan, progress notes, therapy program and other documents about the resident’s care.
65. The Tribunal recognises that the practicalities of a review system involving a large number of classification decisions annually requires that relevant documentation should play an important part in the review process. However, it also needs to be recognised that the practicalities involved in the delivery of care services in a residential care facility dictate that record keeping by care providers such as Special Dementia Carers is likely to be at least abbreviated so that carers are not deflected from their primary responsibility of providing the necessary care services. Obviously, a balance needs to be achieved.
66. It was clear from Ms Raguz’ evidence that while her preference is for “exception reporting”, she recognises the need for appropriate documentation and directs the staff at the Meadows accordingly. The practice she has adopted of instructing staff to make more detailed progress notes in the period immediately preceding a resident’s annual reappraisal, focusing on matters related to particular questions in the resident classification scale on different days, seems a reasonable one.
67. Ms Raguz gave evidence that she uses the progress notes for a resident in ensuring that the care plan reflects the resident’s needs and that good care is being provided to the resident. She also refers to those notes in completing the reappraisals according to the resident classification scale questions.
68. Apart from the documentation relating to the care recipient, the Applicant also lead evidence both from Mr Fleming and Ms Raguz on the design of the Meadows. Mr Fleming said the aim with the Meadows was to reduce adverse environmental factors and provide a prosthetic environment for the treatment of dementia and one which would facilitate the work of staff by enabling them to supervise residents and be pro-active in their care. The Respondent contended that the design/efficiency of the Meadows was not a relevant matter: that the Applicant had not made out its case that this should be taken into account in relation to Q8 and Q19. The Applicant contended that evidence of the environment of the Meadows and the staffing structure is essential to an understanding of how care is provided. In the Tribunal’s view, these matters form part of the background against which the specific issues raised by Q8 and Q19 must be addressed.
69. Turning first to Q8 Understanding and undertaking living activities, the Applicant contends the care recipient should be rated as ‘C’ for “Major difficulty”; the Respondent contends he should be rated as a ‘B’ for “Some difficulty”. The care recipient suffers from dementia. The “Speech/Comprehension/Language Assessment” (T8A) of the care recipient dated 16 February 2002 states:
Comprehension is affected by effects of Dementia. Requires things to be repeated and requires prompts for all ADLs.
70. The “Understanding and Undertaking Living Activities” care plan (T8A) identifies “Poor comprehension related to cognitive impairment”. The stated management/intervention is:
Needs prompting for all ADL’s on all occasions. Requires frequent repetition and reminding to undertake and complete most activities.
The plan states that the care recipient is “confused and disoriented to time and place”. The stated management/intervention is:
Orientate to clock on the wall by telling the time. Remind him where he is, the name of the facility and the suburb.
71. In the “Transfer and Mobility Assessment” dated 16 February 2002 (T8), the following words are circled to describe the care recipient’s gait: “Shuffled” and “Dragging of legs”.. He is unsafe walking unaided over short distances, and uses a frame as an aid. With regard to mobility, the answer to a question asking what the resident requires to get from one designated area to another, it is stated that he needs “Individual supervision” and “Verbal instruction and prompting”.
72. The relevant progress notes for the period 13 February 2002 to 22 February 2002 attest to the care recipient’s confusion, inability to comprehend simple instructions and need for prompting and frequent reassurance. For example, he needs supervision and prompting with all aspects of personal hygiene and at each stage of hygiene activities such as washing, cleaning his teeth, shaving, and at each stage of dressing.
73. In the Tribunal’s view, the documents are sufficient to warrant a rating of ‘C’ for Q8 in so far as the care recipient “Has major difficulty ascertaining, initiating and undertaking or completing most living activities and requires repetition and reminding”.
74. Turning to Q19 Therapy, the Applicant contends the care recipient should be rated as ‘C’ for “Major support” - “Therapy provided 3 times a week”, while the Respondent contends he should be rated as ‘A’ for “No support” – “No therapy provided”.. The Guidelines for Q19 state:
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.
75. This is the nearest the Guidelines come to a definition of “therapy”. Physiotherapy and physical therapy are among the listed therapies covered by this question. The Guidelines state:
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 itself 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.
76. Mr Brennan acknowledged that the Applicant’s claim to a ‘C’ rating in respect of Q19 “stands or falls” in relation to the provision of physiotherapy. The evidence is that the physiotherapist at the Meadows sees each resident at least annually in the period before the person’s reappraisal. At that time, the needs of the resident are reassessed and, if necessary, a revised physiotherapy care plan is prepared. Thereafter, every three months the responsible Special Dementia Carer is expected to telephone the physiotherapist and report on the resident’s progress. The physiotherapist will see the resident again during the course of the year if required.
77. The Q19 Guidelines states that the question relates to therapy provided to care recipients where the therapy is documented as a care need. The Physiotherapy Care Plan dated 12 February 2002 (T8A) [cited paragraph 22 above] identifies the need to address joint restrictions and a reduction in his range of movement by providing daily limits exercises for 15 minutes and “a good walk in the garden DAILY”.. The physiotherapy notes for the care recipient [cited paragraph 22(e) above] record these needs and this intervention on 30 December 2001 with reviews by the physiotherapist taking place at 12 February 2002 and 20 March 2002 when the evaluation stated “Plan reviewed and effective”.
78. The relevant progress notes for 13 February 2002 (T8A) refer to the care recipient’s need to undertake limb exercises and to take a 10 minute walk. The notes for 19 February 2002 also refer to a walk to the duck pond [cited paragraph 22(e) above].
79. Ms Raguz’ evidence is that the care recipient is taken on structured walks at least three times a week, the length of the walk to be determined by the Carer according to the care recipient’s level of confusion and agitation at the time. If he is particularly agitated he might not be able to go for a walk.. In her statement (A4) at paragraph 20, Ms Raguz stated that staff also assist the care recipient to perform limb exercises in his room. The Tribunal was unable to find any specific reference to staff assisting the care recipient with exercises – only of the need to do so.
80. In the Tribunal’s view, the Physiotherapy Care Plan for the care recipient constitutes a sufficiently clearly defined and documented plan of care based on an assessment of his care needs. Because the emphasis of Q19 is on the therapy provided to care recipients where therapy is documented as a need, in the Tribunal’s view it is reasonable to expect the therapy provided to be documented by the provider at least in the period before an annual reappraisal as is Ms Raguz’ practice. While there is some documentation in respect of the care recipient being taken on walks, there is little documentation about the limb exercises. For the future, the Tribunal would expect fuller documentation of such activity in the period before the annual reappraisal.
81. Nevertheless, the Tribunal accepts Ms Raguz’ evidence that the care recipient has been assisted in taking walks at least three times a week and is assisted in undertaking limb exercises. The physiotherapist obviously took the view that walks and exercises were therapy directed to the care recipient’s joint restriction and mobility problems and the Tribunal accepts that such activity can constitute “therapy” because it seeks to maintain or minimise loss of function.
82. The Tribunal recognises that taking the care recipient for a walk may have a dual objective of addressing depression and self-isolation which is also the subject of Q12 Emotional dependence. In the Tribunal’s view, this does not exclude such therapy from consideration in relation to the need addressed in relation to Q19. There will inevitably be overlap between some questions in the resident classification scale. Nevertheless, it is clear that physiotherapy or physical therapy are to be considered under Q19.
83. It should also be remembered that physiotherapy is being provided for an elderly person with arthritis and mobility problems who suffers from dementia. Presumably what could be considered therapy for the care recipient in this matter might be considered merely the addressing of ordinary human needs in the case of a younger person without such disabilities.
84. On the basis that the care recipient is assisted in taking walks on three days every week and is assisted in undertaking limb exercises, the Tribunal finds that therapy is provided at least three times a week in order to maintain or minimise loss of joint range of movement. Thus, a ‘C’ should be recorded for the care recipient under Q19.
85. In conclusion, the Tribunal finds that the care recipient should be accorded a ‘C’ rating for both Q8 and Q19. The effect of this is that the care recipient’s overall score under the resident classification scale is 41.52 [refer to Table paragraph 13 above] which, according to Schedule 2 of the Classification Principles, gives rise to a level 5 classification. The Tribunal therefore sets aside the decision under review and substitutes a new decision that the care recipient should be classified at level 5.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .......................................................................................
AssociateDate/s of Hearing 1 May and 27 May 2003
Date of Decision 27 June 2003
Representative for the Applicant Mr T Brennan, Solicitor
Representative for the Respondent Mr J Kirk, Counsel
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