Riverside Nursing Care Pty Ltd and Secretary, Department of Healt H and Aged Care

[2001] AATA 1063

CATCHWORDS – AGED CARE – cancellation of approval as provider of aged care and cancellation of allocation of places – documents sought – whether relevant to review of decisions  – issues to be considered in reviewing cancellation decisions – whether discretion to be exercised – direction to produce documents refused.

Aged Care Act 1997

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

DECISION AND REASONS FOR DECISION [2001] AATA 1063

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2000/533
GENERAL ADMINISTRATIVE DIVISION      )

Re:                 RIVERSIDE NURSING CARE PTY LTD

Applicant

And:    SECRETARY, DEPARTMENT OF HEALTH AND AGED CARE

Respondent

Tribunal:                   Miss S A Forgie (Deputy President)

Date:  14 September, 2001

Place:  Melbourne

Decision:  The Tribunal refuses to direct the respondent to produce the documents sought by the applicant in a letter dated 29 August, 2001 to the respondent’s solicitors.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 11 May, 2000, the applicant, Riverside Nursing Care Pty Ltd (“Riverside”) applied for review of a decision of a delegate of the respondent, the Secretary of the Department of Health and Aged Care (“the Secretary”) dated 5 March, 2000.  That decision revoked Riverside’s approval as a provider under the Aged Care Act 1997 (“the Act”) and revoked all places allocated to it under the Act. The delegate’s decision was confirmed by another delegate of the Secretary in a decision dated 4 May, 2000.

1. Various directions hearings have been held since Riverside lodged its application and the matter has been set down for hearing commencing on 1 October, 2001.  On 13 September, 2001, Riverside asked that a directions hearing be held to consider the production of documents it had requested from the Secretary.  The directions hearing was held on the following day.  Riverside was represented by Mr Minotti of counsel and the Secretary by Mr Gunst QC with Ms Kennedy of counsel.  After hearing oral submissions and, for reasons given orally, I refused to direct the Secretary to produce the documents.  I have been asked to give written reasons.

THE DOCUMENTS SOUGHT

1. In a letter dated 29 August, 2001 and sent to, but not received by, the solicitors for the Secretary, Riverside sought production of the following documents:

“(a)     All correspondence, notes, memorandum, records and other documents concerning:

(i)preparation for;

(ii)arrangements for;

(iii)the implementation of;

the transfer of residents from Riverside Nursing Home to St. Vincent’s Hospital.

(b)All correspondence, notes, memorandum, records and other documents concerning:

(i)any steps taken by the Department to obtain from Riverside Nursing Home records or other information in respect of the said residents;

(ii)any steps taken by the Department for the transmission from Riverside Nursing Home to St. Vincent’s Hospital of records or other information in respect of the said residents;

(iii)any steps taken by the Department in relation to the ascertainment of the nature and extent of records and other information kept at the Riverside Nursing Home in respect of the said residents.

(c)All correspondence, notes, memorandum, records and other documents concerning any request made by the Department upon:

(i)any  relative of the said residents;

(ii)any medical practitioner who was treating any of the said residents whilst at Riverside Nursing Home;

(iii)the applicant or any of its servants or agents;

for information in relation to any of the said residents.

(d)All correspondence, notes, memorandum, records and other documents concerning any request made by the Department for the purpose of ascertaining:

(i)the wishes of any of the said residents and any of their relatives in relation to removal of the resident or residents from Riverside Nursing Home;

(ii)the extent to which any relative of any such resident was likely to be inconvenienced by the relocation of any resident from Riverside Nursing Home to St. Vincent’s Hospital;

(iii)the likely effect upon any resident of removal of that resident from Riverside Nursing Home.”

BASES ON WHICH PRODUCTION RESISTED

1. The Secretary resisted the production of the documents on two bases.  The first was that they are not relevant to a review of the decision under review.  The second was that the three weeks allocated for the hearing would be insufficient if irrelevant material were to be introduced.  The second basis carries no weight, of course, for if the documents are relevant to the review, additional time would have to be found.

REASONS FOR REFUSING TO ORDER PRODUCTION

1. The first basis depends upon the construction of the Act under which the decision under review was made. The Act provides for the Commonwealth to give financial support through the payment of subsidies for the provision of aged care and through the provision of grants for other matters connected with the provision of aged care (s. 3-1).  The expression “aged care” means one or more of residential care, community care or flexible care (Schedule 1, clause 1). Each of those terms is more specifically defined in the Act but it is not relevant to examine them in this context. Subsidies are paid under Chapter 3 but both Chapters 2 and 4 are relevant.  Residential grants are paid under Chapter 5, which is not relevant in this case.

1. Among other matters, Chapter 2 provides both for the approval of providers and the allocation of places.  Payments of a subsidy cannot be made under Chapter 3 to a person for providing aged care unless that person is approved under Part 2.1 (s. 7-1).  Those who may be approved as a provider of aged care and the manner in which approval is sought are set out in that Part.  The Secretary must approve a person as a provider if he, she or it meets the criteria specified in s. 8-1(1)..  Among those criteria is that the Secretary is satisfied that the person is suitable to provide aged care (s. 8-1(1)(c)).  In deciding whether a person is suitable to provide aged care, the Secretary must have regard to:

“(a)     the suitability and experience of the applicant’s key personnel; and

(b)the applicant’s ability to provide, and its experience (if any) in providing, aged care; and

(c)the applicant’s ability to meet (and, if the applicant has been a provider of aged care, its record of meeting) relevant standards for the provision of aged care (see Part 4.1); and

(d)the applicant’s commitment to (and, if the applicant has been a provider of aged care, its record of commitment to) the rights of the recipients of aged care; and

(e)the applicant’s record of financial management, and the methods that the applicant uses, or proposes to use, in order to ensure sound financial management; and

(f)if the applicant has been a provider of aged care – its record of financial management relating to the provision of that aged care; and

(g)if the applicant has been the provider of aged care – its conduct as a provider, and its compliance with its responsibilities as a provider and its obligations arising from the receipt of any payments from the Commonwealth for providing that aged care; and

(h)any other matters specified in the Approved Provider Principles.” (s. 8-3)

1. Chapter 4 of the Act is headed “Responsibilities of approved providers”.  Approved providers, s. 53-1 provides, “… have responsibilities in relation to aged care they provide through their aged care services.”  The section then provides that those responsibilities relate to:

“·the quality of care they provide (see Part 4.1);

·user rights for the people to whom care is provided (see Part 4.2);

·accountability for the care that is provided (see Part 4.3).”

1. In so far as quality of care is concerned, the responsibilities of an approved provider are set out in Part 4.1 of the Act. Section 54-1 sets out the responsibilities and they are expanded upon in the remaining sections in the Part.  The responsibilities of an approved provider in relation to the aged care he, she or it provides are:

“(a)     to provide such care and services as are specified in the Quality of Care Principles in respect of aged care and 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(1), 56-2(i) or 56-3(j);

(d)if the care is provided through a residential care service after the accreditation day – to comply with the Accreditation Standards made under section 54-2;

(e)if the care is provided through a residential care service before the accreditation day – to comply with the Residential Care Standards made under section 54-3;

(f)if the care is provided through a community care service – to comply with the Community Care Standards made under section 54-4;

(g)if the care is provided through the flexible care service – to comply with the Flexible Care Standards (if any), made under section 54-5, that apply to a flexible care service of that kind;

(h)such other responsibilities as are specified in the Quality of Care Principles.” (s. 54-1)

Sections 54-2 to 54-5 elaborate upon the standards to which s. 54-1 refers.

1. Approval as a provider of aged care ceases in the circumstances set out in s. 10-1.  Those circumstances are:

“(a)     the approval lapses under section 10-2; or

(b)the approval is revoked under section 10-3 or 10-4; or

(c)the period (if any) to which the approval is limited under subsection 8-1(3) expires; or

(d)the approval is revoked under Part 4.4.”

1. Revocation is relevant in this case.  It may occur on the request of the approved provider (s. 10-4).  The Secretary may revoke the approval in the circumstances set out in s. 10-3.  Among those is the Secretary’s being satisfied that the approved provider has ceased to be suitable for approval (s. 10-3).  Before being so satisfied, the Secretary is required to have regard to the matters set out in s. 8-3 in relation to the approved provider (see paragraph 6 above). I will return to revocation under Part 4.4 later in these reasons.

1. Even if a person is an approved provider, a subsidy may only be paid to that person under Chapter 3 for providing aged care in respect of which a place has been allocated (s. 11-1). The allocation of places is the subject of Part 2.2 of the Act and is also the subject of the Allocation Principles made by the Minister for Health and Aged Care (“Minister”) under s. 96-1 (s. 11-2).  Part 2.2 deals with matters such as the Commonwealth’s planning its allocation of places, how people apply for allocations and how they are decided, the transfer of allocations and the variation of conditions for the allocations of places.  Division 18 of Part 2.2 is concerned with when allocations cease to have effect.  Of relevance in this case is s. 18-1(1), which provides that the allocation of a place ceases to have effect if either of the following happens:

“(a)     the place is relinquished (see section 18-2);

(b)the allocation is revoked under section 18-5 or Part 4.4.”

1. If an approved provider relinquishes an allocated place, he, she or it either no longer conducts an aged care service that includes that place or no longer includes that place in an aged care service that continues to be conducted.  It does not mean that the place has been transferred. (Schedule 1, clause 1)  The manner in which an approved provider relinquishes places is the subject of s. 18-2.  Among other things, the approved provider must set out his, her or its “… proposals for ensuring that care needs are appropriately met for those care recipients (if any) who are being provided with care in respect of the places to be relinquished” (s. 18-2(e)).  Those proposals must deal with the matters specified in the Allocation Principles (s. 18-2(3)).  The Secretary must decide whether the proposals are satisfactory and may take certain steps if they are not (s. 18-3).  An approved provider must not relinquish allocated places in respect of which care recipients are being provided with care without complying with any proposal accepted by the Secretary under s. 18-3 (s. 18-4).

1. Revocation of allocations is the subject of s. 18-5.  It provides the means by which the Secretary may revoke the allocation of places if the approved provider has not, for a continuous period of 12 months, or such other period as is set out in the Allocation Principles, provided care in respect of that place.

1. Revocation of an allocation may also occur under Part 4.4 as it may in the case of the approval of the provider of aged care.  That part provides that the Secretary may impose sanctions if:

“(a) the approved provider has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3; and

(b)the Secretary is satisfied that it is appropriate to impose sanctions on the approved provider (see section 65-2); and

(c)the Secretary complies with the requirements of Division 67.” (s. 65-1)

1. In deciding whether or not to impose sanctions in respect of an approved provider’s non-compliance with his, her or its responsibilities, the Secretary must consider:

“(a)     whether the non-compliance is of a minor or serious nature;

(b)whether the non-compliance has occurred before and, if so, how often;

(c)whether the non-compliance threatens the health, welfare or interests of care recipients;

(d)whether the approved provider has failed to comply with any undertaking to remedy the non-compliance;

(e)any other matters specified in the Sanctions Principles.” (s. 65-2)

1. The sanctions that may be imposed by the Secretary include:

“(a)     revoking or suspending the approved provider’s approval under Part 2.1 as a provider of aged care services;

(b)restricting the approved provider’s approval under Part 2.1 as a provider of aged care services to aged care services that are being conducted by the approved provider at the time the sanction is imposed;

(c)restricting the approved provider’s approval under Part 2.1 as a provider of aged care services to either:

(i)care recipients to whom the approved provider is providing care at the time the sanction is imposed; or

(ii)care recipients other than those to whom the approved provider commenced providing care, through one or more specified aged care services, after the time the sanction is imposed;

(d)revoking or suspending the allocation of some or all of the places allocated to the approved provider under Part 2.2;

(e)varying the conditions to which the allocation of some or all of those places is subject under section 14-5;

(f)prohibiting the further allocation of places under Part 2.2 to the approved provider;

(g)…

(h)…

(i)…

(j)…

(k)…

(l)such other sanctions as are specified in the Sanctions Principles.” (s. 66-1)

The Sanctions Principles may be made by the Minister under s. 96-1.

1. There is no question that Riverside was, at the time that the decision under review was made, an “approved provider” as it was a person in respect of which an approval under Part 2.1 was in force (Schedule 1, clause 1).

2. There is no question that, at all relevant times, Riverside was an approved provider of aged care in respect of places allocated to it. An examination of the provisions of the Act reveals that cancellation of the approval and of the allocation is not dependent upon the alternate arrangements that either Riverside or another body (be it an approved provider or not) might have made for the recipients of aged care services in the event of those cancellations. In the context of a cancellation imposed as a sanction under Part 4.4 of the Act, that cancellation is dependent upon Riverside’s having not complied with its responsibilities under Part 4.1 of the Act. Each of the responsibilities specified in s. 54-1 of the Part and applying to Riverside’s situation, focuses on the care that was provided by the approved provider. It does not refer to the appropriateness of any arrangements that might have been in place were Riverside’s approvals to be cancelled. In this regard, a contrast may be drawn between the provisions of Part 4.4 in general and s. 65-1 in particular and those of s. 18-2 in relation to the relinquishment of allocated places.  Relinquishment requires a care provider to set out his, her or its “… proposals for ensuring that care needs are appropriately met for those care recipients (if any) who are being provided with care in respect of the places to be relinquished” (s. 18-2(e)).  No such provision is made in relation to cancellation.

1. Even if there is a finding that Riverside did not comply with its responsibilities under Part 4.1 of the Act, cancellation does not automatically follow. Section 66-1 provides that the Secretary may impose sanctions if that is the case.  The word “may” imports a discretion.  In exercising that discretion, regard needs to be had not only to the provisions of s. 66-1 but also to the objects of the Act. Those objects are gleaned from the Act generally, and I have referred to some of its provisions, and from s. 2-1, which sets out the objects of the Act. Those objects 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 the level of care provided; and

(iii)the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and

(iv)appropriate outcomes for recipients of the care; and

(v)accountability of the providers of the care for the funding and for the outcomes for recipients;

(b)to promote a high quality of care and accommodation for the recipients of aged care services that meets the needs of individuals;

(c)to protect the health and well-being of the recipients of aged care services;

(d)to ensure that aged care services are targeted towards the people with the greatest needs for those services;

(e)to facilitate access to aged care services by those who need them, regardless of race, culture, language, gender, economic circumstance or geographic location;

(f)to provide respite for families, and others, who care for older people;

(g)to encourage diverse, flexible and responsive aged care services that;

(i)are appropriate to meet the needs of the recipients of those services and the carers of those recipients; and

(ii)facilitate the independence of, and choice available to, those recipients and carers;

(h)to help those recipients to enjoy the same rights as all other people in Australia;

(i)to plan effectively for the delivery of aged care services that:

(i)promote the targeting of services to areas of the greatest need and people with the greatest need; and

(ii)avoid duplication of those services; and

(iii)improve the integration of the planning and delivery of aged care services with the planning and delivery of related health and community services;

(i)to promote ageing in place through the linking of care and support services to the places where older people prefer to live.” (s. 2-1(1)). 

In construing these objects, s. 2-1(2) provides that:

“… 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.”

1. The objects are focused upon funding of aged care and upon the provision of aged care services.  I have already set out what is meant by “aged care”..  By “aged care services”, the Act means the “… undertaking[s] through which aged care is provided” (Schedule 1, clause 1). The essential objects of the Act are to provide for planned distribution of a limited amount of funds to undertakings that provide residential, community or flexible care (i.e. aged care) and to provide for the distribution in such a way that it meets a number of needs or objects. Among those needs and objects include the protection of the health and well-being of the recipients of aged care services. It is arguable that this object would influence the matters that would need to be taken into account in deciding whether or not to cancel an approval or an allocation. It is arguable that the need to protect the health and well-being of the recipients of aged care services would mean that regard would need to be had to their health and well-being were the approval and allocations of their aged care provider to be cancelled. Arguably, that would cover not only alternate arrangements to be made for them by another approved provider of aged care but the arrangements to transfer them.

1. If that were to be the correct interpretation of the Act and the discretion inherent in s. 66-1, care would need to be taken to ensure that consideration were not given to the manner in which the transfer actually took place or to the aged care that was actually provided by the approved provider to whom the recipients of aged care were transferred following a cancellation of approval or of allocations.  That follows from the fact that the Tribunal is reviewing a cancellation decision.  In doing so, its role is to consider whether the Secretary’s decision was the correct or preferable decision at the time it was made (see Freeman v Secretary, Department of Social Security (1988) 87 ALR 506 at 509-510, Davies J). It is entitled to take into account all of the facts proved before it but the issue it must consider remains the same. Its role is not to consider whether, with hindsight, the actions taken to implement the Secretary’s decision were appropriate. At all times, the Tribunal’s role is limited to a consideration of whether the decision made by a delegate of the Secretary on 5 March, 2000 was the correct or preferable decision.

1. In the absence of hearing comprehensive submissions by both parties, I am reluctant to come to any final conclusion regarding the interpretation of the Act in general or of s. 66-1 in particular.  I do not need to do so, however, to form a view regarding the documents sought by Riverside.  The request is framed far too widely to be relevant to the issues that may face the Tribunal in reviewing the Secretary’s decision.  Taking paragraph (a) of the Schedule to the letter by Riverside’s solicitors, documents relating to the preparation for, and implementation of, the transfer of residents from Riverside to St Vincent’s Hospital suggests that what is sought are documents relating events concerned with the actual transfer of those patients.  Those documents are not relevant to a consideration of the issues in this case.  This is particularly so in relation to the documents described in paragraph (b)(ii).  It is concerned with what actually happened on the transfer of the patients from Riverside to St Vincent’s Hospital.

1. The purpose for which the documents listed in paragraph (c) are sought is not clear.  No time frames are specified and there are no limits placed upon the nature or purpose of any information sought by the Department from the persons specified in paragraph (c).  In the absence of those time frames and limits, it is not possible to say that they are relevant to the issues to be considered. 

1. As described, it is hard to see how the documents sought in paragraph (d)(ii) are relevant to the issues in this matter.  The convenience to the relatives of the patients as such is not relevant. 

1. More problematic are the documents sought in paragraphs (a)(ii), (b)(i) and (iii) and (d)(i) and (iii).  The context in which they are sought is not clear.  It may be that documents with those descriptions are relevant but, if they are, the request for them must be framed bearing in mind the issues that the Tribunal must consider.

1. For these reasons, I refused to direct the Secretary to produce the documents sought in the letter dated 29 August, 2001 by Riverside’s solicitors.

I certify that the twenty six preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)  

Signed:           .......................................................
  Catherine Hutchins (Associate)

Date of Hearing  14 September, 2001

Date of Decision  14 September, 2001

Counsel for the Applicant             Mr B.F. Minotti
Counsel for the Respondent         Mr C. Gunst QC with Ms M.E. Kennedy
Solicitors for the Applicant           Efron and Associates

Solicitor for the Respondent         Clayton Utz