Seventh Mingcourt Pty Ltd v Lawrence
[1996] FCA 109
•1 MARCH 1996
CATCHWORDS
ADMINISTRATIVE LAW - judicial review - whether there was a decision within the meaning of s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) - Minister obliged by s40AEF of the National Health Act (Cth) to confirm or vary the decision of the delegate of the Secretary - concession by Minister that statutory obligation not met - in fact decision of delegate of Secretary varied - a decision within the meaning of s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) does not have to be a legally valid decision.
ADMINISTRATIVE LAW - judicial review - whether the Minister has the capacity pursuant to s6 of the National Health Act 1957 (Cth) to delegate a part of a particular power of the Minister under the National Health Act 1957 (Cth) - Minister and delegate may not exercise the one power in respect of the same set of circumstances at the same time - comments as to what a decision-maker pursuant to s40AEF of the National Health Act 1957 (Cth) is required to do and take into consideration when confirming or varying a scale of fees determined in relation to a nursing home.
ADMINISTRATIVE LAW - judicial review - whether Minister bound to accept factual findings of the Nursing Homes Fees Review Committee of Inquiry - Minister is free to either adopt or reject the factual findings of the Nursing Homes Fees Review Committee of Inquiry - the process by which the Minister arrives at a final decision must be one that does not breach the rules of natural justice.
WORDS AND PHRASES - meaning of "nursing and personal care" in Principles formulated by Minister pursuant to s40AA(7) of the National Health Act 1957 (Cth) - distinction between the giving of care to a patient and the giving of care to a patient personally - no express requirement that the giving of nursing care involves direct interaction with or assistance to the patient.
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
National Health Act 1957 (Cth) ss 6, 40AA(2), 40AA(6), 40AA(7), 40AA(7B), 40AD(1B), 40AE, 40AEC, 40AED, 40AEF, 40AFA, 40AGA(2), (4), (5), (6), 46AD(1B), 117, 122, 123, 126, 127, 128, 129 and 130
Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
No VG 82 of 1994
SEVENTH MINGCOURT PTY LTD (A.C.N. 006 928 954) (trading as "Allora Nursing Home") v THE HONOURABLE CARMEN LAWRENCE (as the Commonwealth Minister of State for Human Services and Health)
Branson J
Adelaide
1 March 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) No VG 82 of 1994
)
GENERAL DIVISION )
BETWEEN:
SEVENTH MINGCOURT PTY LTD
(A.C.N. 006 928 954)
(trading as "Allora Nursing Home")
Applicant
- and -
THE HONOURABLE CARMEN LAWRENCE (as the Commonwealth Minister of State for Human Services and Health)
Respondent
MINUTES OF ORDER
CORAM: Branson J
PLACE: Adelaide
DATE: 1 March 1996
THE COURT ORDERS THAT:
The decisions purportedly made pursuant to s40AEF of the National Health Act 1953 (Cth) by the Minister on 12 December 1994 and Mr Pirani on 17 May 1995 are quashed.
The decision of the delegate of the Secretary of 15 December 1993 is referred to the Minister for consideration according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIAN DISTRICT REGISTRY ) No VG 82 of 1994
)
GENERAL DIVISION )
BETWEEN:
SEVENTH MINGCOURT PTY LTD
(A.C.N. 006 928 954)
(trading as "Allora Nursing Home")
Applicant
- and -
THE HONOURABLE CARMEN LAWRENCE (as the Commonwealth Minister of State for Human Services and Health)
Respondent
REASONS FOR JUDGMENT
CORAM: Branson J
PLACE: Adelaide
DATE: 1 March 1996
This is an application pursuant to s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for review of decisions of the Minister for Human Services and Health concerning fees applicable to the Allora Nursing Home ("the Home").
THE STATUTORY FRAMEWORK
The applicant was the proprietor of the Home which it operated at 15 Rosemary Street, Woodville West in South Australia. The Home was an approved nursing home for the purposes of the
National Health Act 1957 (Cth) ("the Act") (see s40AA(2)).
Part V of the Act is concerned with approved nursing homes. The approval of the Home as an approved nursing home is, by reason of s40AA(6) of the Act, subject to certain conditions. One such condition is that provided by s40AA(6)(c)(i). So far as is here relevant, that paragraph provides, in effect, that the fees charged in respect of the nursing home care of a qualified nursing home patient in the nursing home will not exceed such fees as are from time to time applicable in respect of the nursing home care of the patient in accordance with a scale of fees. Such fees are to be determined, for present purposes, by the Secretary of The Department of Health, Housing, Local Government and Community Services ("the Secretary") in accordance with principles formulated by the Minister of Health ("the Minister") pursuant to s40AA(7) of the Act and published in the Gazette of Wednesday 28 June 1989 ("the Principles").
Section 40AA(7B) of the Act sets out the matters to which the Minister was required to have regard in formulating the Principles. Those matters are:-
"(a)the need to ensure that nursing homes are efficiently and economically operated;
(b)the need to ensure that the cost to nursing home patients of nursing care is not excessive or unreasonable; and
(c)any other matters the Minister considers to be relevant."
There was no challenge in these proceedings to the validity of the Principles.
Section 40AFA of the Act provides for the classification of nursing home patients according to the degree of their need of nursing and personal care. Section 40AGA(2) of the Act provides for the Secretary, by written instrument, to determine in accordance with the section, the standard fee for patients included in each classification in each approved nursing home for a financial year. The section provides, by subsections (5) and (6), formulae for the calculation of the standard fee for the various classifications of patients in approved nursing homes. Such standard fees are to be taken into account in accordance with the Principles and such other matters (if any) as the Principles require, by the Secretary in determining scales of fees in relation to classified patients in each approved nursing home (s40AGA(4)).
Section 40AD(1B) of the Act authorises the Secretary to alter the conditions applicable to an approved nursing home by substituting for a scale of fees determined for the purposes of s40AA(6)(c)(i) such other scale of fees as is determined by the Secretary. Section 40AE provides, amongst other things, that where, on or after 24 August 1988, the Secretary under s40AD(1B) alters the conditions of a nursing home without being requested by the proprietor to do so, the proprietor may request the Minister to review the decision of the Secretary.
Section 40AEC(1) of the Act requires the Minister, where a request under s40AE is not withdrawn, to refer the matter to the Nursing Homes Fees Review Committee of Inquiry established for the State in which the nursing home operates ("the Committee") for examination and report to the Minister. The subsection further requires the Minister not to take any further action in the matter until the Minister has received the report of the Committee.
Section 40AEC(2)(3) and (4) of the Act is in the following terms:-
"(2)The Minister shall not refer the matter to the Committee unless the proprietor has provided the Minister with:
(a)a statement which sets out fully and in detail the reasons for the request;
(b)a copy of such accounts, books, documents and records that are relevant to the review of the decision by the Minister; and
(c)such information or documents as the Minister specifies under subsection (3).
(3)The Minister may, by notice published in the Gazette, specify information or documents that are to be provided to the Minister for the purposes of a review.
(4)The Minister may, by notice in writing given to the proprietor, require the proprietor to furnish to the Minister such further information or documents as the Minister considers necessary for the purpose of deciding the request and the Minister may refuse to refer the matter to the Committee until that information or those documents, as the case requires, are furnished to the Minister."
The Committee is required by s40AED(1) of the Act to examine the matter referred to it by the Minister, and report, in writing, to the Minister.
Section 117A of the Act provides for the establishment in each State of one, or where appropriate, more than one committee, each called a Nursing Homes Fees Review Committee of Inquiry for the State in which it is established. A Committee is required to consist of 3 persons appointed by the Minister. The proceedings of the Committee are to be held in private (s123) and the Committee is not bound by rules of evidence (s122). It may summons witnesses (s126) and examine upon oath or affirmation (s127). It is an offence punishable by a penalty of $1,000 or imprisonment for 6 months, or both, for a person served with a summons to attend before the Committee and paid reasonable expenses, to fail without reasonable excuse to attend before the Committee, or to produce the books, documents or writings in the person's custody or control which the person is required by the summons to produce, or to refuse to be sworn or make an affirmation or to answer relevant questions put by a member of the Committee (ss128 and 129). A witness before the Committee has the same protection as a witness in a matter before the High Court (s130).
Section 40AEF is in the following terms:-
"(1)The Minister shall, after such investigation of the matter as the Minister considers necessary, either confirm or vary the decision of the Secretary, and advise the proprietor accordingly.
(2)The Minister shall, in undertaking, in accordance with subsection (1), such investigation of the matter as the Minister considers necessary, apply any relevant principle that was in force under subsection 40AA (7) of 40AD (1BE), as the case requires, at the time the decision was made.
(3)The Minister shall not, in undertaking, in accordance with subsection (1), such investigation of the matter as the Minister considers necessary, confirm or vary the decision of the Secretary before the Minister has received the report of the Committee.
(4)Where the Minister varies the decision of the Secretary, the Secretary shall, for the purposes of subsection 40AD (2), be taken to have altered the conditions applicable to the nursing home in accordance with the decision so varied."
The authority of the Minister to delegate powers given to the Minister by the Act is contained in s6 of the Act. Relevantly s6 provides as follows:-
"(1)The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to a person (including the Secretary) all or any of the Minister's powers under this Act or the regulations, other than:
(a)this power of delegation; or
(b)the Minister's powers under section 95.
(2)A power so delegated under subsection (1), when exercised by the delegate, shall, for the purposes of this Act or the regulations, be deemed to have been exercised by the Minister.
(3)A delegate under subsection (1) is, in the exercise of a power so delegated, subject to the directions (if any) of the Minister.
(4)A delegation under subsection (1) does not prevent the exercise of a power by the Minister."
FACTUAL BACKGROUND
Commonwealth funds are paid to approved nursing homes monthly in advance. The monthly amount is comprised of:-
(a)the standard fee for the provision of nursing and personal care to residents ("CAM");
(b)an amount to cover the nursing homes' infrastructure costs ("SAM");
(c)other cost reimbursed expenditure ("OCRE") which reimburses a nursing home for workers' compensation and payroll tax for all staff and superannuation and long service leave for nursing and personal care staff.
At the end of each year approved nursing homes are required to submit an NH20 form on which they report their actual expenditure during the year for the provision of nursing and personal care to residents and in respect of other cost reimbursed expenditure. The reported expenditure is compared by the Department of Human Services and Health ("the Department") with the amount paid to the nursing home and, subject to an allowable tolerance range, a further amount to be paid to the nursing home is determined, or alternatively, an amount to be recovered from the nursing home as a negative loading on future monthly payments is determined.
Periodically the Department engages in a process known as "validation" in respect of a particular nursing home. The object of validation is to audit the records of the nursing
home to verify that costs claimed for CAM and OCRE in NH20 forms were incurred in accordance with the Act. Following validation the Secretary, or more usually it seems, a delegate of the Secretary, will consider whether there should be an adjustment to the nursing home's fees, and if so in what amount.
On 30 November 1992 the applicant was notified that a validation of the NH20s lodged by it for the financial years 1989/90, 1990/91 and 1991/92 was to be undertaken. The validation commenced on 14 January 1993 and was completed on 4 February 1993. Thereafter correspondence passed between representatives of the Home and the Department respectively, until by letter dated 15 December 1993 Alan Hutton, Delegate of the Secretary ("the delegate of the Secretary"), advised the applicant that he had determined a new scale of fees applicable to the Home. The fee advice enclosed with the letter showed that the delegate of the Secretary had determined that the standard fee for the Home to commence on 1 February 1994 was to be:-
Category 1 $113.98
Category 2 $105.18
Category 3 $ 95.16
Category 4 $ 78.84
Category 5 $ 68.80.
He further determined that the scale of fees for the Home, effective from 1 February 1994, was to be:-
Category 1 $106.00
Category 2 $ 97.20
Category 3 $ 87.18
Category 4 $ 70.85
Category 5 $ 60.82.
That is, the delegate of the Secretary had determined that the new scale of fees was to incorporate a negative loading of $7.98 to recover outstanding amounts said to be owing to the Commonwealth by the applicant. By the letter of 15 December 1993 the proprietor was advised that the negative loading was to expire on 31 January 1995. The letter of 15 December 1993 also advised the applicant of its right pursuant to s40AE of the Act to apply to the Minister for a review of the determination advised by the letter.
The delegate of the Secretary, in response to a request to do so, provided to the applicant pursuant to s13 of the ADJR Act a statement of his reasons for his determination. On 14 February 1994 the applicant requested the Minister to review the determination of the delegate of the Secretary.
In accordance with the requirements of the Act, the Minister referred the matter to the Committee. The Committee conducted a lengthy inquiry sitting for 70 hours over a 6 week period. The Home was represented before the Committee by a solicitor and a barrister, and during most of the inquiry the Department was represented by a solicitor. The Committee received some evidence in affidavit form. In addition it received oral evidence, some being sworn evidence and some being taken more informally. Witnesses who gave evidence on oath were subject to cross-examination. The Committee received written and oral submissions from the representatives of the Home and the Department.
The Committee provided a report dated 21 October 1994 to the Minister. It made the following recommendations:-
"i.NURSING HOME PROPRIETOR'S NOTIONAL WORKING SALARY
The Department's decision to disallow the proprietor's notional working salary for the 1989/90, 1990/91 and 1991/92 financial years be upheld.
ii. NURSING AND PERSONAL CARE STAFF
The Committee agrees with the Department's decision to disallow any of the wages of L Flanagan and A J Morris for nursing and personal care in the years 1990/91 and 1991/92. The Committee recommends that the original decision be upheld.
The Committee also agrees with the Department's decision to disallow any part of the wages of J Latham for nursing and personal care in the years 1990/91 and 1991/92. The Committee recommends that the original decision to be upheld.
iii. NON-NURSING AND PERSONAL CARE
The Committee recommends an adjustment for non-nursing and personal care to allow 12 hours per day of non-nursing and personal care for nursing and personal care staff. The Committee recommends that the original decision not to allow the adjustment be reversed and an amount of $48,770 for 1989/90, $52,228 for 1990/91 and $53,528 for 1991/92 be allowed.
iv. MULTI-ROLE STAFF
The Committee agrees to the decision to disallow $49,849 for multi-role staff. The Committee recommends that the original decision be upheld."
On 12 December 1994 the Minister wrote letters to both the applicant and the Committee advising that three of the
Committee's four recommendations had been accepted, namely recommendations i, ii and iv, i.e., the recommendations adverse to the applicant. The terms of the letter of 12 December 1994 from the Minister to the applicant were not placed in evidence before me. As to recommendation iii of the Committee, the Minister, in her letter of 12 December 1994 to the Chairman of the Committee, stated as follows:-
"I acknowledge that the issue of substantiation of the Department's decision to disallow 12 hours a day for nursing and personal care staff is real.
I understand however that where nursing homes structure employee duties so as to use nursing and personal care staff time for non-nursing and personal care work they are required to apportion this time and only claim nursing and personal care staff time used for resident care. The authority in these matters are the Nursing Homes Financial Arrangements Principles 7 and 8(2).
I note that evidence presented to the Committee indicates that from three to six hours of nursing and personal care staff time per day has been used for non-nursing and personal care duties. I understand that the regular performance of these SAM duties has then been claimed from CAM funding. This evidence is a copy of a letter from the proprietor of Allora to the Department and Ms Sylvia Portella's Affidavit dated 26 August 1994 (attached).
I ask that the Committee re-examine this evidence in view of its conclusion that the Department could not substantiate any or all of the 12 hours determined by the Department, and report its findings to me."
By letter dated 16 January 1995 the Committee responded to the Minister. It advised as follows:-
"It is the view of the Committee that if Principle 8(2) were applied literally, then we accept that the Department may have acted correctly in disallowing twelve hours per day that it estimated where (but could not substantiate) nursing and personal care staff were performing non-nursing and personal care duties.
However, the Committee was aware that Circular 72 of May 1987 advised that the Department would approach this matter of the CAM reimbursement with a degree of flexibility and would only intervene should nursing and personal care staff be excessively used for non-nursing and personal care tasks. Although the term "excessive" has not been defined the Committee did not see or hear any evidence to substantiate the Department's disallowance of any hours for performance by nursing and personal care staff of non-nursing and personal care duties.
In our opinion the question does not involve the acceptance of three hours (as per Portella's affidavit) or 12 hours (as per the Department's validation report) or 50% of the amount determined by the Department (as per the letter from the proprietor), rather it is a question of whether those hours represent an excessive use of nursing and personal care staff on non-nursing and personal care duties. No evidence was presented to satisfy us that those hours were excessive.
We therefore find no reason to change our original recommendation to you."
Thereafter, on a date which is not established by the evidence before me, Paul Gordon Pirani ("Mr Pirani"), then Senior Adviser in the Aged and Community Care Branch of the Department, was requested by his supervisor to exercise his powers as a delegate of the Minister for the purpose of s40AEF of the Act with respect to the issue covered by recommendation iii of the Committee.
On 17 May 1995 the applicant was advised that Mr Pirani had decided:-
".not to accept that part of the recommendation from the Nursing Homes Fees Review Committee of Inquiry for the State of South Australia ('the Committee') that there should be an adjustment for non-nursing and personal care to allow 12 hours per day of non-nursing and personal care for nursing and personal care staff; and
.to vary the decision of the delegate of the Secretary dated 15 December 1993 by disallowing 3 hours per day of the claim for nursing and personal care for the years 1989/90, 1990/91 and 1991/92 (rather than the 12 hours per day that were disallowed by the delegate of the Secretary in the original decision)."
Thereafter, the relationship between the parties has been conducted on the basis that the decision of the delegate of the Secretary of 15 December 1993 has been varied in accordance with Mr Pirani's decision.
THE APPLICATION FOR REVIEW
By its amended application for review the applicant sought review of three decisions as follows:-
"A.A decision of the Minister, notified to the Home by letter of 12 December, 1994 ("the December decision").
B.A decision of the Minister, by her delegate Denise Michelle Moffatt made on 3 February, 1995 ("the February decision").
C.A decision of the Minister, by her delegate Paul Gordon Pirani, notified to the Home by letter of 17 May, 1995 ("the May decision")."
The parties were in agreement that it was not necessary for the Court to deal expressly with the February decision: a review of the other decisions will apparently determine to the satisfaction of the parties the issues between them concerning the February decision. I shall not consider it further.
HAS THE MINISTER MADE A DECISION PURSUANT TO S40AEF OF THE ACT?
The decision which the applicant, pursuant to s40AE of the Act, requested the Minister to review was the decision of the delegate of the Secretary under s40AD(1B) of the Act to alter the conditions applicable to the Home by substituting for a scale of fees determined in relation to the Home for the purposes of s40AA(6)(c)(i) of the Act the scale of fees set out above.
I raised with counsel during the hearing of this matter the question of whether the evidence established that this decision, as opposed to the reasoning behind it, had at any time been confirmed or varied by the Minister as required by s40AEF of the Act. Subsequently counsel for the Minister made the concession that no decision to confirm or vary the decision of the delegate of the Secretary had been made by the Minister or by a lawful delegate of the Minister. Further, counsel for the Minister acknowledged that the Minister was obliged by s40AEF(1) of the Act to confirm or vary the decision of the delegate of the Secretary.
It was argued on behalf of the Minister that as a consequence of the failure of the Minister to confirm or vary the decision of the delegate of the Secretary as required by s40AEF, there was no "decision to which this Act applies" within the meaning of s5 of the ADJR Act before the Court. It was further argued that in such circumstances the application for review should be dismissed.
As Mason CJ made plain in Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 337:-
"... a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration."
It cannot, however, in my view, be accepted that "a decision to which this Act applies" within the meaning of s5 of the ADJR Act must be a legally valid decision. Although it has been in this case, in my view, rightly conceded that no valid decision to confirm or vary the decision of the delegate of the Secretary has been made by the Minister, or by a lawful delegate of the Minister, the attitude adopted by the Commonwealth from December 1994 until well into the hearing of this matter has been otherwise.
In her statement of reasons given in January 1995 pursuant to s13 of the ADJR Act the Minister stated:-
"On December 1994, I wrote to the proprietor of the home advising of my determination in respect of a request for a review of the approved scale of fees for the home."
By letter dated 17 May 1995, the Director of the Administrative Law and Litigation Section of the Legal Services Branch of the Department advised the applicant as follows:-
"I refer to your request under sub-section 40AE of the National Health Act 1953 for a review of the approved scale of fees for Allora Nursing Home.
The delegate of Minister has made a decision concerning the outstanding matter of 12 hours per day of non-nursing and personal care undertaken by nursing and personal care staff.
The delegate has varied the decision of the delegate of the Secretary dated 15 December 1993 by disallowing 3 hours per day of the claim for nursing and personal care for the years 1989/90 to 1991/92 (rather than the 12 hours per day that were disallowed by the delegate of the Secretary in the original decision).
A copy of the delegate's decision is attached for your information. I have forwarded a copy of this letter to your solicitors."
Moreover, as is mentioned above, from 17 May 1995 the relationship between the applicant and the Commonwealth has been conducted on the basis that the decision of the delegate of the Secretary had been varied in accordance with Mr Pirani's determination and the earlier determinations of the Minister. No statutory authority for such a variation apart from s40AEF of the Act can be identified.
In my view, a decision pursuant to s40AEF of the Act was purportedly made by the Minister personally on 12 December 1994. A decision pursuant to s40AEF in respect of the same request for review was also purportedly made by Mr Pirani on 17 May 1995. I conclude that each such purported decision is a decision to which the ADJR Act applies.
In view of the concessions made on behalf of the Minister, and accepted by the applicants, such purported decisions should be quashed.
OTHER ISSUES
I consider it appropriate, nonetheless, to express my views with respect to certain of the other issues canvassed during submissions in this matter.
The Minister's power of delegation
It was submitted by counsel for the Minister that the Minister has the capacity pursuant to s6 of the Act to delegate part of a particular power of the Minister under the Act. In my view no support for this submission can be found in s6 or elsewhere in the Act. Whilst s6(3) of the Act makes it clear that the Minister may issue directions to a delegate as to the exercise of a delegated power, the Minister may not, in my view, delegate part of a power. In any event, the instrument of delegation placed in evidence in these proceedings does not purport to delegate a part of any power of the Minister. Although s6(4) of the Act provides that a delegation by the Minister does not prevent the exercise of the power by the Minister, this does not, in my view, mean that both the Minister and the delegate may exercise the one power in respect of the same set of circumstances at the same time.
Moreover, most, if not all, of the powers of the Minister under the Act are not sensibly capable of being split into parts in the manner suggested in argument. Looking at the particular circumstances of this case, the power given to the Minister was to confirm or vary the decision of the Secretary. That is, the Minister was required to confirm or vary a scale of fees determined in relation to the Home. Before doing so the Minister would, no doubt, wish to review the reasons which lay behind the fee determination. However, a review of such reasons is not the same as a review of the scale of fees. A scale of fees fixed following a defective reasoning process might nonetheless be an appropriate scale of fees - possibly, for example, because two errors of reasoning cancel each other out.
Scales of fees under the Act are fixed by the Secretary, or a delegate of the Secretary, having regard to many factors. They must be fixed in accordance with the Principles. Such Principles extend, in printed form, to 117 pages. I do not consider that any review of a fee determination can be fairly undertaken, in the spirit of the Act and the Principles, by a process which involves different persons reviewing different aspects of the reasoning process of the person who fixed the scale of fees for the purpose of determining whether a review of that aspect standing alone would justify confirmation of variation of the scale of fees.
I do not mean by the above that the Minister, or a lawful delegate of the Minister, may not, when reviewing a fee determination, seek advice from different sources as to various matters required to be considered for the purpose of that fee determination. Ultimately, however, it is the Minister, or the Minister's lawful delegate, who must reach a decision either to confirm or to vary the scale of fees fixed by the Secretary or the delegate of the Secretary.
In short, the decision maker pursuant to s40AEF of the Act is required to take an overall view of the matter.
Further, so far as any discretion is conferred by the Principles, the decision maker is required by the Principles to have regard to the need for fair and consistent administration of Part V of the Act. The need for fair and consistent administration of Part V of the Act will, in my view, call for the decision maker to assess the particular scale of fees fixed against scales of fees for other nursing homes in comparable circumstances, and further to have regard to circulars issued by the Department for the guidance of proprietors of nursing homes which remained operative at times relevant to the decision which he or she is required to make.
The factual findings of the Committee
It was argued on behalf of the applicant that in the circumstances of this case, the Minister was bound to accept the factual findings of the Committee, or alternatively, could not overturn them without good reason.
Plainly the Act discloses an intention that matters of disputed fact will be ventilated before the Committee, and that the Committee will make findings concerning them. It is for this purpose that the Committee is given the considerable powers referred to above, which include the powers to summons witnesses and compel them to attend before it and give evidence on oath or affirmation and/or produce books, documents and writings in their custody or control. The Minister, it may be noted, is not given comparable powers.
As was pointed out by Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 369 the Act envisages that such Committees "... would, either because of their composition or by virtue of their accumulated experience, be competent to inquire into, and report upon, applications for variations in the scale of fees applicable to a particular nursing home."
His Honour further pointed out that the Act contemplates that the primary inquiry on any review by the Minister of a fee determination in respect of a particular nursing home will be conducted by the appropriate Committee. Nonetheless, his Honour expressed the view, with which I respectfully agree, that whilst the Minister is free to adopt the report of a Committee and any recommendations made in it, the Minister is equally free to reject the report in whole or in part or to rely only on certain conclusions expressed in it.
The process by which the Minister arrives at a final decision, be it to confirm the decision of the delegate of the Secretary or to vary it, must, of course, be one which does not breach the rules of natural justice (ADJR Act, s5). Where a Committee has made findings of fact based upon contested evidence, natural justice will, in my view, require the Minister to give the proprietor of the nursing home concerned notice of any finding of fact made by the Committee the rejection of which the Minister has under consideration so as to give the proprietor the opportunity to be heard. Where a finding of the Committee is dependent upon its judgment as to the credibility of witnesses, it will be particularly difficult for the Minister, who will not have had the benefit of seeing and hearing the witnesses give their evidence, fairly to reject such finding by any process short of a rehearing of the evidence on that issue. Practical difficulties may stand in the way of any such rehearing. Where the report of a Committee does not clearly set out its findings on relevant issues, it may be necessary for the Minister to request it to make its findings more explicitly.
The reasons of Mr Pirani
A further question which was argued before me was that of whether Mr Pirani erred as a matter of law in concluding that '3 hours per day of the time of nursing and personal care staff was not "actually utilised by the nursing home to provide nursing and personal care" ... as required by principle 32(26)(k) of the Principles.' It may first be noted that the words placed in quotation marks by Mr Pirani in the above extract from his reasons for decision did not all appear
in principle 32(26)(k) of the Principles as in force during the period covered by the validation process. The words "to provide nursing and personal care" were inserted in principle 32(26)(k) by an amendment made to the principle which was published in the Commonwealth of Australia Gazette of 24 February 1993. Neither party contended that the amendment made to principle 32(26)(k) in 1993 ought to have been taken into account for the purposes of the review of the determination of the delegate of the Secretary which related to a period of time which expired before 1993.
Mr Pirani's conclusion that 3 hours per day of the time of nursing and personal care staff employed at the Home were not spent undertaking nursing and personal care was dependent upon a finding by him that certain duties were not nursing and personal care duties. The reasons for decision of Mr Pirani include the following passage:-
"The duties described are of a type normally undertaken by domestic/kitchen staff in a nursing home rather than by nursing and personal care staff. Those duties are at least one step removed from the type of duties that are described in the definition of "nursing and personal care" in principle 2 of the Principles as they do not involve direct interaction with, or assistance to, the patient."
The definition of "nursing and personal care" in principle 2 of the Principles is in the following terms:-
"(a)the planning or giving of nursing care to an approved patient by nursing and personal care staff;
and
(b)other care (including therapy) provided to an approved patient personally by nursing and personal care staff to -
(i)assist the patient to carry out activities of daily living which the patient is unable to perform adequately without assistance;
(ii)assist the rehabilitation of the patient; or
(iii)meet a special need of the patient; ..."
It is necessary to determine whether the word "personally" in paragraph (b) of the above definition qualifies the word "patient" or the words "by nursing and personal care staff". I conclude that the more natural reading of the paragraph requires the conclusion that the "other care" must be provided by nursing and personal care staff to an approved patient personally. That is, that the word "personally" qualifies the word "patient". Once paragraph (b) is so read, it becomes clear that the drafter of paragraphs (a) and (b) has drawn a distinction between the giving of care to a patient (para (a)) and the giving of care to a patient personally (para (b)). Significantly, in view of the above extract from the reasons for decision of Mr Pirani, there is no express requirement in paragraph (a) that the giving of nursing care "involve direct interaction with, or assistance to, the patient."
Paragraph (a) of the definition of "nursing and personal care" set out above is, in my view, intended to encompass nursing care, and paragraph (b) is intended to encompass personal care. Personal care is defined, explicably, in terms of care
provided to a patient personally. Nursing care is defined in terms of the planning or giving of nursing care to a patient. It is a gloss to read into the definition of nursing care that it must be nursing care involving direct interaction with or assistance to the patient. It was not suggested by either party that the expression "nursing care" was used in the above definition in any technical or legal sense. Whether any particular activity in fact amounts to nursing care within the meaning of the definition is thus a question of fact to be determined in the light of the ordinary meaning of the expression "nursing care".
ORDERS
The orders of the Court will be that:-
the decisions purportedly made pursuant to s40AEF of the Act by the Minister on 12 December 1994 and Mr Pirani on 17 May 1995 are quashed;
the decision of the delegate of the Secretary of 15 December 1993 is referred to the Minister for consideration according to law.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Branson.
Associate:
Dated:
Counsel for the Applicant : Mr M E Hoile
Solicitors for the Applicant : Kings
Counsel for the Respondent : Mr S C Cole
Solicitors for the Respondent : Australian Government
Solicitor
Hearing Dates : 5, 6, 7, 8 February 1996
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