Trethewey and National Disability Insurance Agency (NDIS)

[2025] ARTA 495

Trethewey and National Disability Insurance Agency (NDIS) [2025] ARTA 495 (30 April 2025)

Applicant/s:  Ms Jane Trethewey

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/4538

Tribunal:General Member Bubutievski 

Place:Sydney

Date:30 April 2025

Decision:The internal review decision of 21 June 2023 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 22 January 2023, is set aside and remitted for reconsideration with directions that:

(a)the following reasonable and necessary support will be funded under the National Disability Insurance Scheme from 22 January 2023:

a.    2:1 support for 24 hours per day, including two active overnight shifts, until 30 November 2024. The Tribunal finds that this support was reasonable and necessary from the date of Ms Trethewey’s discharge from hospital in December 2021;

(i)2:1 support for 24 hours per day, including one active and one inactive overnight shift, from 1 December 2024;

(ii)Consumables – incontinence aids;

(iii)Assistive technology (AT) – Hi-Lo electric bed; recliner chair with lift feature; tilt in space manual wheelchair and threshold ramps;

(iv)Improved daily living – occupational therapy and AT assessment, 48 hours per annum;

(v)Biannual physiotherapy review;

(vi)A speech pathology review to monitor swallowing and provide training; and

(vii)A new continence assessment and ongoing involvement by a continence consultant.

................[Sgnd]............................................

General Member T. Bubutievski

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – review of decision relating to approval of Applicant’s statement of participant supports (SOPS) under her NDIS plan – early onset dementia – agreed that the best place for care to occur is in the home – requesting 2:1 support 24/7 including active overnights – whether “reasonable and necessary supports” criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) are met – Tribunal satisfied that 2:1 care 24 hours per day should be included in Applicant’s SOPS - Decision Under Review set aside and remitted with direction to facilitate the approval of a new SOPS for the Applicant

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024

Cases

Frugtniet v Australia Securities and Investment Commission [2019] HCA 16
HPSC and National Disability Insurance Agency [2021] AATA 727
McGarrigle v National Disability Insurance Agency [2017] FCA 308

QDKH v National Disability Insurance Agency [2021[ FCAFC 189

Secondary Materials

National Disability Insurance Scheme Guidelines – Reasonable and Necessary Supports

REASONS FOR DECISION

1. The Applicant, Ms Trethewey, is a current participant of the National Disability Insurance Scheme (NDIS). She is presently 66 years old. When this application was lodged on 27 June 2023, Mr Devir (Ms Trethewey’s partner and legal guardian), on behalf of Ms Trethewey, sought review of a decision made on 21 June 2023 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), affirming a decision made on 23 January 2023 under s 33(2) of the NDIS Act to approve a statement of participant supports (SOPS) forming part of Ms Trethewey’s NDIS plan.

   BACKGROUND

2. Ms Trethewey lives with her partner and sister-in-law in the Blue Mountains. The property in which they reside was previously used as a bed and breakfast and has three separate self-contained areas. The area in which Ms Trethewey resides is also used for her care and support by paid carers. In 2017 Ms Trethewey was diagnosed with early onset dementia and became a participant in the scheme on 13 March 2018. She was cared for at home by Mr Devir, without accessing supports under the scheme, until 2021. At this time, she had a bowel impaction which precipitated a delirium, and she was hospitalised for four months. Upon her discharge from hospital in December 2021 her care needs had increased significantly.

3. Mr Devir’s evidence is that Ms Trethewey has been provided with at least 2:1 care for 24 hours per day since this time. This care is provided by an organisation called Complete Care, and their rosters show that this care is provided by the means of two twelve-hour shifts with two workers on each shift, each day.

   NDIS Plan – 30 June 2022

4. On 30 June 2022, a delegate of the CEO of the NDIA (CEO) approved a SOPS, resulting in the commencement of an NDIS plan for Ms Trethewey on 30 June 2022 (June 2022 NDIS Plan).[1] The SOPS was for a notional duration of 12 months. This plan provided for flexible core funding of $789,715.88 which allowed for 1:1 support 24 hours per day, with an active overnight shift. It also allowed for 6 hours per day of 2:1 support and 20 hours per week of social and community access. It also included funding for transport, allied health, behavioural support and support co-ordination. The core and capacity building funding were plan-managed and the funding for behavioural support and support co-ordination were Agency managed.

   [1] JTB at T47, 294-307.

   NDIS Plan – 22 January 2023

5. On 22 January 2023, a new SOPS was approved for Ms Trethewey for a notional duration of 12 months (January 2023 NDIS Plan).[2] This plan was completed because of a change of circumstances review. This plan included flexible core supports of $930,920.46, including 1:1 support at higher intensity pricing for 24 hours per day, with an active overnight shift. It also allowed for 6 hours per day of 2:1 support and the same additional supports as the June 2022 plan, with the exception of the inclusion of $12,708.69 in assistive technology funding for a power bed and low-pressure mattress and $537.50 for home modifications. The core, capacity building and assistive technology funding were plan-managed and the funding for behavioural support, support co-ordination and home modifications were Agency managed. Mr Devir, on behalf of Ms Trethewey, sought review of this plan.

   [2] JTB at T48, 308-321.

   Internal review decision – 21 June 2023

6. On 19 April 2023, Ms Devir made a request for an internal review under s 100 of the NDIS Act to be undertaken in relation to the January 2023 NDIS Plan.[3]  In this request Mr Devir said that Ms Trethewey requires 2:1 care 24/7.

   [3] JTB at T33, 190-197.

7. On 21 June 2023, a delegate of the CEO made an internal review decision under s 100 of the NDIS Act, affirming the decision to approve the SOPS in the January 2023 NDIS Plan (Decision Under Review).[4] At that time, the delegate considered that the requested supports did not meet the ‘reasonable and necessary’ criteria under the NDIS Act as they were not ‘value for money’ or ‘effective and beneficial’.[5]

   [4] JTB at T2, 105-114.

   [5] Ibid.

   Application for review

8. On 27 June 2023, Mr Devir lodged an AAT Application for Review of Decision form (Application Form) with the Tribunal on the basis that the review disregarded the evidence provided. Mr Devir says that Ms Trethewey’s situation is very serious and could not be managed in hospital, and that since she has been cared for at home with 2:1 supports her situation has become more manageable.[6]

   [6] JTB at T1, 32-38.

9. From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

   NDIS Plans – 24 November 2023, 30 April 2024, 18 September 2024, 13 December 2024 and 31 March 2025

10. The CEO approved three further SOPS under s 47A of the NDIS Act during the Tribunal process resulting in the commencement of five further NDIS plans for Ms Trethewey.[7]  The notional duration of each of these SOPS is six months. These are nothing more than a rollover of the funding in the January 2023 NDIS plan. In accordance with the provision of s 103 of the NDIS Plan, the decision to approve the current plan, dated 31 March 2025, becomes the Decision Under Review.

    [7] JTB at R2, R3 and R4, 671-694; 695-726; 717-740; Supplementary JTB at 54-77; NDIS Plan of 31.3.25, file on 1.4.25.

    ISSUES

11. The Tribunal must undertake merits review of the Decision Under Review. The Tribunal will stand in the shoes of the original decision-maker who made a decision to approve a SOPS for Ms Trethewey, containing supports, a reassessment date, and stipulations as to how the funding and other aspects of the plan are to be managed. QDKH v National Disability Insurance Agency,[8] confirmed that the Tribunal has jurisdiction to look at all the reasonable and necessary supports for Ms Trethewey, including those supports raised in the course of these proceedings.[9] The Tribunal must remake the decision to come to the correct or preferable decision on the evidence before it.[10]

    [8] [2021] FCAFC 189.

    [9] Ibid, [8] (Rangiah, Perry and Abraham JJ).

    [10] Frugtniet v Australia Securities and Investment Commission [2019] HCA 16, [14] ( Kiefel CJ, Keane and Nettle JJ).

    Requests made by the Applicant

12. On behalf of Ms Trethewey, Mr Devir sought the funding for care to be provided to Ms Trethewey in their home at the ratio of 2:1 for 24 hours per day with both overnight shifts also being active shifts. Mr Devir submitted that this is necessary to avoid injury or death and that there are no routines or key moments which would allow the care ratio to be reduced. He states that Ms Trethewey required 2:1 care for continence pad changes and bowel movements, moving around and eating, and that none of the assistive technology available would reduce the need for 2:1 care 24 hours per day.[11]

    [11] Exhibit 1, Applicant’s Response, 25-26.

13. The Applicant also requested the payment of unpaid invoices from the care provider which had accrued as a result of care being provided at a ratio higher than is funded in the plan. The Tribunal notes that it is outside the Tribunal’s jurisdiction to direct the Agency to pay outstanding invoices. Any decision made by the Tribunal in relation to the date from which reasonable and necessary supports should be provided may impact on unpaid invoices if the Tribunal decides that these supports should be provided from a date in the past.

    The Respondent’s position

14. The Respondent was of the view that some additional supports are required but that the provision of 2:1 care for 24 hours per day is not reasonable and necessary.[12] The Respondent relied upon the opinion of the independent occupational therapist, Ms Clarissa Haylett, to inform its position that the following supports are reasonable and necessary:

    [12] Exhibit 1, Respondent's SFIC, 4-12.

    (a)1:1 support for 24 hours per day, initially to include an active overnight shift, which should be changed to a sleepover shift with active support for two hours per shift once the Applicant is accustomed to a Hi-Lo bed;

    (b)2:1 support for six hours per day to facilitate mealtimes and personal care/continence activities;

    (c)2:1 support for eight hours of community access per week;

    (d)Consumables – incontinence aids;

    (e)Assistive technology (AT) – Hi-Lo electric bed; recliner chair with lift feature; tilt in space manual wheelchair and threshold ramps.

    (f)Improved daily living – occupational therapy and AT assessment, 48 hours per annum;

    (g)Biannual physiotherapy review;

    (h)A speech pathology review to monitor swallowing and provide training; and

    (i)A continence consultant.

15. The Respondent noted that most of these supports are already funded in the current plan and the additional supports include only funding for eight hours per week of community access at a ratio of 2:1; the lift recliner; the manual wheelchair and the threshold ramps.

16. During the course of the hearing, the Respondent amended its position on the care ratios to include 1:1 support for eight hours per day; 2:1 support for eight hours per day; and either 1:1 active support for eight hours overnight or 2:1 inactive (sleepover) support.

    LEGISLATIVE FRAMEWORK

17. The NDIA was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes the general principles guiding actions to be taken under the NDIS Act.

18. A participant’s plan must be prepared in accordance with the NDIS Act and regulations made under s 32 of the NDIS Act. It must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules).

19. The supports to be provided to a participant in a plan can be both general supports and supports funded under the NDIS (s 33(2)). General supports include coordination, strategic and referral services which may be provided both to participants in the NDIS and people with a disability who are not participants in the NDIS (s 13 of the NDIS Act).

20. Section 33(5) of the NDIS Act requires that the CEO (or delegate), in deciding whether to approve the SOPS under s 33(2), have regard to a number of factors including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied that the supports to be funded by the NDIS are ‘reasonable and necessary supports’.

21. The NDIS Act was amended on 3 October 2024 pursuant to the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (Back on Track Act). The Tribunal had not completed its review of Ms Trethewey’s application by the time the amendments commenced. The original decision which the Agency made regarding Ms Trethewey’s SOPS, the Agency’s internal review decision, and Ms Trethewey’s application to this Tribunal for independent merits review were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.

22. The transitional provisions provided that the changes to s 34 which set out new criteria that must be satisfied for a support to be reasonable and necessary apply to supports decisions made after 3 October 2024. The Tribunal must therefore consider the law as amended. This includes the new s 34(1)(aa), which requires that a support be necessary to address the needs of a participant arising in relation to which the participant meets the disability requirements (or early intervention requirements, as the case may be); and the replaced 

    
    

    s 34(1)(f), which requires that a support be an NDIS support in accordance with the new definition in s 10 of the NDIS Act and the associated rules.

23. For the purposes of s 33(5)(c), the Tribunal must be satisfied of the matters set out in s 34 as amended:

    Reasonable and necessary supports

    (1)  For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (aa)  the support is necessary to address needs of the participant arising from an impairment in relation to which the participantmeets the disability requirements (see section   24) or the early intervention requirements (see section   25);

    (a)  the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

    (b)  the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

    (c)  the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)  the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)  the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f)  the support is an NDIS support for the participant.

    Note:  For the purposes of paragraph   (aa):

    (a)  the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

    (b)  a participant's disability support needs arising from an impairment in relation to which the participantmeets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

    (2)  The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs   (1)(aa) to (f).

24. The NDIA must comply with an approved SOPS (s 39) and a participant (or a person on behalf of a participant) who receives funding under the NDIS must spend the money in accordance with the person’s plan (s 46). Provisions for the management of funding for supports in a participant’s plan are set out in Division 3, Part 2, Chapter 3.

25. Provision is made in s 17, s 27, s 34(2), s 35 and s 209 for the making of rules prescribing matters for and in relation to Chapter 3 of the NDIS Act. Rules of present relevance include the Support Rules, which have the force of law and provide that:

    General criteria for supports

    5.1 A support will not be provided or funded under the NDIS if:

    (a) it is likely to cause harm to the participant or pose a risk to others; or

    (b) it is not related to the participant’s disability; or

    (c) it duplicates other supports delivered under alternative funding through the NDIS; or

    (d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

    5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

    (a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

    (b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

    
    Supports that will not be funded or provided
    
    

    5.3 The following supports will not be provided or funded under the NDIS:

    (a) a support the provision of which would be contrary to:

    (i) a law of the Commonwealth; or

    (ii) a law of the State or Territory in which the support would be provided;

    (b) a support that consists of income replacement.

26. The objects of the NDIS Act are set out in s 3. These include giving effect to international treaty obligations; supporting the independence and social and economic participation of people with a disability; and providing reasonable and necessary supports for participants. Section 4 sets out general principles guiding actions under the NDIS Act. These include that people with disability have the same rights as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life to the extent of their ability. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the NDIS Act in making its decision.

1. The NDIA has issued Operational Guidelines including in relation to the access criteria under the Act (Operational Guidelines). The Operational Guidelines are published on the NDIA’s website.[13] The way they are written has changed significantly over time to make them more user friendly for potential applicants and participants in the NDIS, but the important parts of the content have not been greatly altered. The Tribunal also had regard to the Operational Guidelines in coming to its decision.

   [13] Operational Guidelines | NDIS https//: accessed on 22 March 2025.

   EVIDENCE

2. The Tribunal had before it a JTB which contained almost all the documents initially filed by both parties. This was taken into evidence (Exhibit 1). The Tribunal also took into evidence various Complete Care Team incident reports filed on 29 November 2024 (Exhibit 2) and a supplementary joint tender bundle filed on 18 March 2025 (Exhibit 3).

3. Mr Devir gave evidence. He did not initially call any other witnesses, although ultimately, Mr Lloyd McAlpine, behaviour support practitioner, and Ms Michaela Morrison, Mr Devir’s sister, and a carer to Ms Trethewey, gave evidence. The Tribunal indicated to Mr Devir that it would also be beneficial to have evidence from Ms Ezzy, Ms Trethewey’s occupational therapist; and Dr Shetty, Ms Trethewey’s geriatric psychiatrist. Mr Devir did not arrange for these witnesses to appear and summons to appear were not issued by either party. The Respondent called Ms Clarissa Haylett, independent occupational therapist, to give evidence.

4. The matter was part heard by this Tribunal by videoconference on 2 December 2024. The hearing was completed by videoconference on 19 and 21 March 2025. The Applicant was represented by Mr Devir. The Respondent was represented by Mr Nesbeth of counsel.

   ISSUES BEFORE THE TRIBUNAL – REASONABLE AND NECESSARY SUPPORTS

5. Ms Trethewey’s current NDIS plan, dated 31 March 2025,[14] contains the following:

   [14] NDIS Plan 31 March 2025, filed 1 April 2025.

   My goals

   Your goal

   To be safe, and to feel safe, being cared for in my own home.

   How will you work towards this goal?

   I will continue to live in my own home and have support to complete all daily living activities by support staff.

   Your goal

   To be supported by my speech pathologist, occupational therapist, and behaviour support practitioner, so my support staff are kept up-to-date with safety and care needs as my condition changes.

   How will you work towards this goal?

   I will be supported by allied health professionals.

   Your goal

   To be supported by support staff to complete all my daily activities as I [am] unable to do these tasks myself. I require two active support staff 24/7.

   How will you work towards this goal?

   I will continue to be supported with all my daily activities by support staff and my Guardians Simon and Carla.

6. For a requested support to be funded it must meet both the provisions of s 34 of the NDIS Act and the Support Rules. Regard must be had to Ms Trethewey’s statement of goals and aspirations. While there is no formal onus of proof on Ms Trethewey, Ms Trethewey must be able to put forward sufficient evidence that the Tribunal is positively satisfied that all the statutory requirements are met.[15] The Tribunal therefore considered whether the statutory requirements were met in relation to each disputed support. This requires the Tribunal to be satisfied that each support meets all of the criteria set out in s 34 of the NDIS Act.[16]

   FACTS

   The medical evidence

   [15] HPSC and National Disability Insurance Agency [2021] AATA 727, [85].

   [16] McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121 at 38; National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at 201.

   Diagnoses

7. The medical evidence put before the Tribunal is that Ms Trethewey has early onset dementia in the advanced stages, with her symptoms continuing to progress. Her presentation is complicated by recurrent delirium generally secondary to urinary tract infection or constipation. She has wandering behaviours, sleep disturbance and agitation.[17]

   [17] Exhibit 1, Report of Dr Namrata Shetty, 16 March 2023, T1C, 77-78.

8. Ms Trethewey has moderate difficulty swallowing and requires assistance with eating and drinking.[18] She is incontinent of bladder and bowel and requires full assistance with self-care. She can be very resistant to changes of her continence products and self-care routines.[19]

   Care needs

   [18] Exhibit 1, Report of Ms Elizabeth Brownlow, speech pathologist, 14 November 2023, 538-551.

   [19] Exhibit 1, Report of Dr Sophia Lahz, rehabilitation physician, 29 March 2022, T27, 139-143.

9. Ms Trethewey’s treating medical professionals are of the view that the optimum care for Ms Trethewey would be care at home at the ratio of 2:1.[20] The Respondent’s view is that it is not the responsibility of the NDIS to provide optimum care, but reasonable and necessary care.[21]

   [20] Exhibit 1, Report of Dr James Chesworth, general practitioner, 26 March 2023, T32, 189; Medical Certificate of Dr Namrata Shetty, 21 August 2023, 509.

   [21] Exhibit 1, Respondent's SFIC, 7 at [30].

10. There is common ground between medical practitioners and the parties that Ms Trethewey requires supports to address the impact of these conditions on her daily life, and that she requires 24 hours of support each day. Ms Trethewey’s preference,[22] and that of her family, is that she continue to be cared for in her own home. The evidence indicates that Ms Trethewey was traumatised by her extended hospital admission and the Respondent does not dispute that the home is currently the best environment in which to care for Ms Trethewey, rather than an aged care facility or secure unit. The issue for the Tribunal is how that is best achieved by the provision of reasonable and necessary supports within the limitations of the NDIS.

    [22] Exhibit 1, NDIS Plan 18 September 2024, 731.

    Allied health evidence

11. Mr Timothy Brennan, occupational therapist, in his initial assessment noted that staff advised him that they cannot manage Ms Trethewey’s behaviours independently for extended periods of time and that at that time she was deteriorating with increased behaviours of concern overnight including hallucinations and sleepwalking. She was also physically aggressive and there was anxiety from the staff about managing this at a care ratio of 1:1 overnight. He noted that she required assistance for sit to stand transfers and two staff to assist to move from lying down into an upright position. He recommended a care ratio of 2:1 24/7 with active overnights and noted that the ‘level of support must be maintained in future to enable her to live independently and ensure support staff are safe’.[23]

    [23] Exhibit 1, T31, Report of Mr Timothy Brennan, occupational therapist, 21 September 2022, 168-188; 188.

12. Ms Shelley Wurth, behaviour support practitioner, gives the opinion that due to Ms Trethewey’s presentation, physical aggression, constant pacing and restlessness throughout the day and night it is considered unreasonable and unsafe for staff to work 1:1.[24]

    [24] Exhibit 1, T37, Report of Ms Shelley Wurth, behaviour support practitioner, undated, 206-207.

13. Ms Jan Salthouse, continence nurse, noted that Ms Trethewey is not independent in her continence needs and requires changing before bed, a check at 2 to 3 AM and to be changed again if wet or dirty, and to be checked and/or changed again between 6 and 7 AM. Bowel motions need to be changed immediately due to the risk of urinary tract infection and delirium.[25]

    [25] Exhibit 1, Email, Jan Salthouse, Clinical Experts, 11 March 2022, 497.

14. Ms Michelle Murphy, occupational therapist, noted that two support workers are required for continence pad changes and that Ms Trethewey has a limited tolerance for personal care.[26]

    [26] Exhibit 1, Report, Michelle Murphy, occupational therapist, 12 August 2022, 499-505.

15. Ms Elizabeth Brownlow, speech pathologist, noted that some days Ms Trethewey is very agitated and constantly walking around. One carer holds her hand, and the other spoon feeds her. She stated that Ms Trethewey requires two carers to support her at mealtimes when she is confused or agitated.[27] In an updated report, Ms Brownlow notes that Ms Trethewey’s dementia symptoms have progressed and that she is very sleepy much of the time. She has moderate dysphasia and needs at least 1:1 full physical assistance from a trained carer for mealtimes.[28] In a summary speech pathology and occupational therapy report authored with Ms Megan Ezzy, occupational therapist, Ms Brownlow opines that Ms Trethewey requires six monthly mealtime reviews and 2:1 active support, rising to 3:1 during periods when she is agitated. It is noted that no piece of equipment will reduce Ms Trethewey’s need for active 2:1 support over a 24-hour period.[29]

    [27] Exhibit 1, T28, Report of Elizabeth Brownlow, speech pathologist, 26 April 2022, 144-149.

    [28] Exhibit 1, Report, Ms Elizabeth Brownlow, speech pathologist, 14 November 2023, 538-552.

    [29] Exhibit 1, Report, Ms Elizabeth Brownlow, speech pathologist and Ms Meagan Ezzy, occupational therapist, 8 April 2024, 566-569.

16. Mr Lloyd McAlpine, behaviour support practitioner, states that Ms Trethewey requires high levels of active support as her behaviours of concern occur over prolonged periods without relief. In March 2023 he noted that Ms Trethewey wakes, wanders and paces at night and requires 2:1 care with high physical assistance. Her behaviours manifested in aggressive conduct towards care staff.[30] In an updated report of 9 August 2023 Mr McAlpine says that Ms Trethewey has complex support needs and requires intensive support for the safety, well-being and effective implementation of her care support plan and a care ratio of 2:1 is necessary.[31]

    [30] Exhibit 1, T1D, Report of Mr Lloyd McAlpine, behaviour support practitioner, 29 March 2023, 80.

    [31] Exhibit 1, Report, Mr Lloyd McAlpine, behaviour support practitioner, 9 August 2023, 506-508.

17. Mr Ben Lennard, physiotherapist, gives an opinion that Ms Trethewey is a high risk falls patient. His view is that 2:1 support is justified given her presentation and this is the primary reason that she had not had a fall in the previous 18 months. He noted that she was more unpredictable, agitated and distressed in the months after leaving hospital, during which time she had three falls. He states that Ms Trethewey would need to be in a facility if she did not receive 2:1 care.[32]

    [32] Exhibit 1, Falls Assessment, Mr Ben Lennard, physiotherapist, 15 September 2023, 510-514.

18. Ms Rebecca Robinson, physiotherapist, produced a mobility management plan which states that Ms Trethewey is a high falls and injury risk. She is a two person assist for weight-bearing activities and transfers even with a Hi-Lo bed.[33]

    [33] Exhibit 1, Mobility Management Plan, Rebecca Robinson, physiotherapist, 30 September 2024, 590-597.

19. Ms Clarissa Haylett, independent occupational therapist, notes that Ms Trethewey is best cared for at home as moving to an alternative living setting will have a negative impact on her health and likely cause severe distress. She recommends a continued care ratio of 2:1 for all mobilisation, and 1:1 active overnight until Ms Trethewey’s sleep routine is more consistent. She notes that Ms Trethewey requires at least two pad changes through the night and requires maximal assistance from two support workers for all self-care. She recommends the use of a Hi-Lo bed, and then a trial to see if pad changes can safely be completed by one support worker. She reports that Mr McAlpine advised that Ms Trethewey no longer presents with pacing, physical and verbal aggression and night-time disturbances. Her assessment on the carer strain index led her to conclude that it is no longer appropriate for Mr Devir to care for Ms Trethewey, meaning that support workers are required. Her recommendations are consistent with the Respondent’s initial position of 1:1 active support for 24 hours per day, 2:1 support for six hours per day; and 2:1 support for eight hours per week of community access plus consumable, capital and assistive technology items.[34]

    [34] Exhibit 1, Report, Ms Clarissa Haylett, occupational therapist, independent functional capacity assessment, 17 January 2024, 633-659.

20. Following the receipt of Ms Haylett’s report, several of Ms Trethewey’s treating allied health professionals provided supplementary information. Mr McAlpine indicated that the management of Ms Trethewey’s behaviours of concern are adjusted on a daily basis.[35] Ms Ezzy provided a new functional capacity assessment which notes that Ms Trethewey now has her continence aids changed at least two hourly due to her high output and risk of urinary tract infection, which requires the full support of two people. She states that Ms Trethewey can require the support of up to 4 people when she is heightened. She advises that her bowel motions, which need to be changed immediately, can occur on average up to 5 times in 24 hours. She has an average of 30 transfers in a 24-hour period. She had also recently had a fall as she decided to stand while one support worker was out of the room. Ms Ezzy advises that Ms Trethewey no longer sleeps during the day and has an unpredictable sleep/wake cycle with recent reports of increased agitation and aggression.[36] In a separate document, Ms Ezzy states that there is no set routine to Ms Trethewey’s care and that the five pad changes allowed for by Ms Haylett in a 24-hour period are not sufficient. She also notes that the wheelchair follow technique described by Ms Haylett for mobility requires three carers. She did not consider that the recliner recommended by Ms Haylett was appropriate due to Ms Trethewey’s need for close physical contact with a carer for regulation.[37] Ms Brownlow notes that Ms Trethewey requires two carers for mealtimes and two carers while grazing, which she does continually throughout the day. She said that she is at a severe risk of choking, aspiration and death and notes that as Ms Trethewey cannot interpret her body signals, she had an incident where she was unable to reposition herself when she needed to vomit.[38]

    [35] Exhibit 1, Report, Mr Lloyd McAlpine, behaviour support practitioner, 22 May 2024, 572.

    [36] Exhibit 1, Functional Capacity Assessment, Ms Megan Ezzy, occupational therapist, 20 June 2024, 578-581.

    [37] Exhibit 1, Report, Ms Megan Ezzy, occupational therapist, 20 June 2024, 582-585.

    [38] Exhibit 1, Report, Ms Elizabeth Brownlow, speech pathologist, 20 June 2024, 576 -577.

    MR DEVIR’S EVIDENCE

21. Mr Devir confirmed that the Hi-Lo bed has already been purchased but that they have been unable to transition Ms Trethewey into the bed. He said that they have tried her on the bed a few times (later quantified as three or four times) but that she got off the bed straight away. He did not wish to purchase a bed with rails as he believed that Ms Trethewey had been restrained in such a bed while she was in hospital and had been traumatised by that experience. Consequently, he was concerned about her falling off the bed. Mr Devir stated that prior to going into hospital Ms Trethewey had already been sleeping on a low leather lounge, and that she continues to sleep on a lounge although they have changed it to a higher and firmer couch. The Hi-Lo bed has been placed in the bedroom area of her part of the residence and she appeared to be distressed by the change of location. Mr Devir acknowledged that as Ms Trethewey continues to deteriorate, she will be in that bed because she will be bedridden.[39] Mr Devir was of the view that Ms Trethewey’s level of distress was sufficient to warrant the trial of the bed being discontinued and stated that Ms Ezzy agreed with this.

    [39] Mr Devir’s evidence, 2 December 2024.

22. Mr Devir said that Ms Trethewey currently has two carers present 24 hours per day and neither of the carers sleep. In his initial evidence on 2 December 2024, he stated that the only difference between dayshift to nightshift is that the night carers do not take Ms Trethewey outside to walk in the garden. She would still be up walking and pacing and may eat at 2 AM. He said that this was consistent with the way she was in her working life – she may work at 2 AM or even all night.[40]

    [40] Ibid.

23. By the time of the resumed hearing, on 19 March 2025, Mr Devir agreed that Ms Trethewey is now unable to independently rise from the couch to pace, and that she is now sleeping more than previously. He understood this to be consistent with the expected decline in her condition.

24. Mr Devir stated that Ms Trethewey may have a bowel movement three or four times per day and that she requires two people for changes of her continence aids and clothing. It is not possible to do so with one person. Mr Devir stated that Ms Trethewey needs a bowel movement changed immediately because of the risk of urinary tract infection. He stated that this advice was received from Ms Salthouse, the continence nurse. He confirmed that bowel charts are done during each shift although they had not been provided to the Tribunal. He also administers laxatives to Ms Trethewey as required, as constipation can trigger delirium. At the hearing on 2 December 2025 Mr Devir stated that he had administered laxatives approximately three times in the last month and that if he does so Ms Trethewey then has more bowel motions. She cannot alert the carers to the fact that she has had a bowel motion. Changing of continence aids, particularly from a bowel motion, can be a trigger for Ms Trethewey to display behaviours of concern.

25. Mr Devir stated that Ms Trethewey eats a large amount of watermelon each day as she is able to feed herself this with her fingers. It is used as a soothing strategy and also to ensure that she gets enough fluid. He explained that there was a concern that she was not having enough fluid and they had tried ice blocks and other various things but found that the watermelon was the most efficient way to get her the fluid she requires. She is also sometimes given fluid by syringe, especially in summer. As a consequence, she is now changed every two hours to avoid her sitting in full nappies and getting wet clothing and bedding. Mr Devir said that Ms Trethewey was getting rashes from sitting in wet nappies and he discussed increasing her pad changes with the psychiatrist and general practitioner.[41] This was not a decision made in consultation with a continence nurse. Documents provided to the Tribunal indicated that this change occurred in February 2024.[42]

    [41] Ibid; Mr Devir’s evidence on 19 & 21 March 2025.

    [42] Exhibit 3, Volume 1, A41, 13-14.

26. Mr Devir stated that when Ms Trethewey came home from the hospital ‘she was in the worst state I have seen anyone’. She was losing weight no matter what she was fed. Her agitation was ‘at the top end’ both while she was in hospital and when she came home. It took about six months for her level of agitation to reduce, although she does still have agitation and aggressive behaviour. Mr Devir told the Tribunal that Ms Trethewey’s aggression and agitation can be unpredictable and that it can at times take four people to settle her down.[43]

    [43] Mr Devir’s evidence, 2 December 2024.

27. Mr Devir was of the view that Ms Trethewey requires two carers to be with her at all times. It takes at least two people to assist with transfers. They are currently using three people to assist Ms Trethewey with transfers from the house out onto the porch. It takes two people to change her continence products and do her personal care. He stated that it also takes two people to feed Ms Trethewey as she requires one person sitting next to her, touching her arm, to help her settle while the other person prepares food and feeds her. Mr Devir also felt that two carers were necessary for safety reasons in case of a choking incident or potential fall.

28. Mr Devir is the only person who administers medication to Ms Trethewey. This is usually given to her in yoghurt. She has Lorazepam twice a day, Temazepam and Catapres in the morning and CBD oil at about 9 AM. He explained that the overall goal is to take the edge off and manage her distress, but not make her too sedated.

1. Mr Devir does assist with changes and bed baths if necessary, and will take the place of a carer if a carer does not show up for a shift, but overall, he prefers to manage Ms Trethewey’s medication, medical appointments and the household and financial activities rather than assisting with her personal care. He felt that this was best for Ms Trethewey’s dignity.

2. Mr Devir stated that they have trialled one active and one inactive worker on a night-time shift but that on that occasion the workers did not notice that Ms Trethewey was dehydrated and a bowel motion went unchanged. Mr Devir stated that the carers are carefully vetted and some carers work better with Ms Trethewey than others. Ms Trethewey generally does not respond well to new carers and might tell them to ‘F off’. She has also punched carers and kicked them in the chest.

3. Mr Devir advised that Ms Trethewey is reviewed by her psychiatrist every three months or so, by phone or video conference; her GP monthly; Dr Lahz, who prescribed the CBD oil, every few months and Mr McAlpine, the behaviour support practitioner, visits the house fortnightly. Mr Devir understood that Ms Trethewey also requires two carers due to her behaviours of concern because of the danger she poses to herself and the carers.

4. Mr Devir was of the view that Ms Trethewey has a good quality of life if things are done properly and that her quality of life would reduce dramatically if the care level reduced or Ms Trethewey went into a hospital or institution. He noted that the records from the hospital show that it regularly took up to 4 people to restrain Ms Trethewey in hospital and they were also using injectable sedatives.

5. Mr Devir did not think that Ms Trethewey’s behaviours of concern have reduced. It was put to him that the report of a previous behaviour support practitioner stated that behaviours of concern were present until May 2023 after which time they slowly stopped. It was also put to him that the reports of Mr McAlpine indicate that environmental restraints have been phased out.

6. Mr Devir was also of the view that establishing a routine does not seem to have an enormous impact on Ms Trethewey’s behaviour. Mr Devir stated that it has been attempted, but it does not work for Ms Trethewey. Mr Devir stated that Ms Trethewey responds to intelligent people who know what they are doing rather than routine.

7. Ms Trethewey has had a couple of incidences of sleepiness and breathing issues. Mr Devir stated that Dr Shetty has told him that Ms Trethewey’s normal medications were probably having a greater effect at that those times as she was also unwell. It has not been a frequent occurrence.

8. The occupational therapist, Ms Ezzy, visits about once a month, although she is about to have a baby and be off work. Ms Trethewey has also had consultations with a speech pathologist and previously had a consultation with a continence nurse, although she does not currently have a continence nurse. Mr Devir acknowledged that it would probably be a good idea.

9. At hearing on 19 March 2025 Mr Devir denied that Ms Trethewey’s mobility is altered. She still takes exercise when she wants to, with the assistance of two people. He acknowledged that her condition appears to be advancing and she has episodes where she seems to ‘shut down’, which is happening more frequently. She is requiring administration of a laxative more frequently. She can still finger feed herself watermelon. She needs to be woken and given fluids through the night and is more likely to wake up distressed in summer, due to the hot weather. She requires assistance to rise from the lounge on which she sleeps and still paces the room if agitated, although she needs the assistance of two people. She will slide to the front edge of the couch when she wants to rise and walk. This happens several times a day and also at night. Mr Devir stated that he understands that Ms Trethewey is at the limit of the medication that can be prescribed to her. He said that the medication keeps her ‘quite happy for a few hours’ in the morning but wears off in the afternoon and her underlying distress comes through. He stated that she sleeps for between two and four hours at a time at night and does not sleep for more than six hours at a time. His impression was that she requires help through the night.

10. It was put to Mr Devir that the shift notes indicate that Ms Trethewey frequently sleeps well through the night, sometimes from 9 PM until 6 AM, and is able to remain dozing comfortably in her bed at the times when she is awake. Mr Devir was of the view that the shift notes were unreliable and the carer who frequently does the night shift, John, could not be bothered doing good notes. Mr Devir stated that he speaks to the carers each morning and will rely on what he is told rather than the shift notes. In his view, it was in a carer’s best interests to say that everything is fine, but generally it is not. The Respondent put to Mr Devir that it was not in the best interests of the carers to say that there were no difficulties through the night if there were problems, as they would receive more help if they noted that Ms Trethewey did not sleep.

11. Mr Devir was of the view that Ms Trethewey requires two active carers for the night shift because she needs pad changes every two hours, hydration, and to be checked for overheating because she cannot regulate her body temperature.

12. Mr Devir confirmed that Ms Trethewey’s verbal communication is now minimal. He stated that she likes to be cuddled with her head on his shoulder or on a carer’s shoulder. This behaviour has increased, and Mr Devir expected that as Ms Trethewey becomes less and less mobile she will seek more physical holding from a carer. Mr Devir said that he spends three or four hours with Ms Trethewey most evenings and may do a carer shift if a carer does not arrive. If Ms Trethewey has an issue, he will be in and out of her room all night. Mr Devir does not receive carer allowance in respect of Ms Trethewey.

13. It was put to Mr Devir that he did not make efforts for Ms Trethewey’s treating health professionals to appear to give evidence at the hearing and that he advised Ms Ezzy that she could ignore a request made by the Respondent for her to appear, as it was not a direction given by the Tribunal.[44] The Respondent suggested that Mr Devir frustrated the Tribunal’s processes by this course of action. Mr Devir acknowledged that he did not want the treating health professionals to give evidence before the Tribunal as he did not think it should be necessary. In his view, the request for 2:1 care 24/7 should have been approved on internal review, and an application to the Tribunal should not have been required.

    [44] Exhibit 3, volume 2, page 20, email dated 9 December 2024.

14. It was also put to Mr Devir that he had caused, or attempted to cause, both Ms Ezzy and the physiotherapist, Ms Robinson, to change their reports to show that Ms Trethewey requires more care. Mr Devir denied this but noted that he would correct incorrect information in the draft reports and that the preparation of these reports was a consultative process where the health professionals got most of their information from himself and Ms Morrison. Mr Devir explained that in the case of Ms Robinson, his layman’s understanding of the term ‘max assist’ was incorrect and Ms Robinson explained to him that this would indicate that Ms Trethewey required mechanical lifting devices, which she does not. He acknowledged that Ms Robinson had changed her initial view about Ms Trethewey’s falls risk, because he had told her that all the other reports had indicated that Ms Trethewey is a high falls risk. Mr Devir stated that the professional reports should be accurate and should be changed if new information is available.[45]

    [45] Mr Devir’s oral evidence, 19 March 2025.

    MR MCALPINE’S EVIDENCE

15. Mr McAlpine gave evidence on two occasions. The first was on 2 December 2024, when he had limited time. He explained that he was involved with Ms Trethewey because Ms Trethewey continues to have behaviours of concern. The current behaviour support plan at that time was for the period 31 January 2024 to 31 January 2025. Mr McAlpine stated that Ms Trethewey continues to experience distress, cry, display physical and verbal aggression, and to engage in pacing. Mr McAlpine acknowledged that the restrictive practices which had initially been in place to manage these behaviours have gradually been phased out, not because Ms Trethewey has improved, but because the staff team are very aware of the environmental triggers and are better able to manage her behaviours. Mr McAlpine identified behavioural triggers as pad changes, waking during the night and personal care.[46]

    [46] Mr McAlpine’s oral evidence, 2 December 2024.

16. Due to the time limitation on Mr McAlpine’s evidence the Tribunal sought to have him appear a second time to be examined more fully, which he did on 19 March 2025. Mr McAlpine confirmed that he is not a psychologist but a rehabilitation counsellor. Mr McAlpine holds an undergraduate qualification in rehabilitation counselling from the University of Sydney and a postgraduate qualification in psychology from Western Sydney University. He confirmed that ‘behaviour support practitioner’ is not a clinical role and not a protected title but does require a registration. He last saw Ms Trethewey on 26 February 2025. He said that his observation is that she displays high levels of distress fairly consistently. He explained that he has trained the staff to manage her behaviours of concern and the capability of staff to manage her behaviour without restrictive practices other than the medication administered by Mr Devir has improved. Mr McAlpine noted that the environmental restrictive practices (e.g. locked doors, no access to sharps) were in place prior to him becoming involved in Ms Trethewey’s care. Part of his role is to reduce restrictive practices if at all possible, which he has done in Ms Trethewey’s case.

17. The Tribunal asked Mr McAlpine about his data collection forms, which are in evidence.[47]  The Tribunal asked on what grounds a staff member is required to complete a data collection form. Mr McAlpine said that a form is required if the staff member is worried about behaviours of concern or if there is something that Mr McAlpine and Mr Devir should be aware of. Mr McAlpine stated that he does not regularly review shift notes or data collected by Ms Trethewey’s care provider. Mr McAlpine was of the opinion that Ms Trethewey’s behaviour has worsened over time as there are longer periods of high levels of distress. Since June 2023 there have been 92 instances reported of high levels of distress. Mr McAlpine said that in his opinion this would be ‘obviously’ underreported, as in his experience there is always underreporting. He stated that in 24 instances the distress continued for less than two hours; in 24 instances the distress continued for less than four hours; in 25 cases it was present for less than three hours and in eight cases it persisted for up to 6 hours. He stated that there had been an uptick in reports of distress since November 2024 and it has been more frequently recorded between January and March 2025. He noted that he was due to review Ms Trethewey again the following week.

    [47] Exhibit 3, Volume 2, 277-504.

18. Mr McAlpine was asked about the appropriate staff ratio to manage behaviours of concern. Mr McAlpine said that in this case there is a directive from the medical professionals, Dr Shetty and Dr Chatsworth, that Ms Trethewey requires 2:1 care, and he would defer to that opinion. He understood that Ms Trethewey would require a staff ratio of 2:1 for safety reasons even without the behaviours of concern.

19. Mr McAlpine said that his role is more to look at environmental triggers rather than ‘causes’ of behaviours of concern. It is often difficult to understand the cause of the behaviour due to dementia. Mr McAlpine confirmed that he has provided direct training to the support workers who work with Ms Trethewey about behaviour management although he has not provided training to Ms Morrison. He described his interactions with Ms Morrison as an ‘ongoing conversation’ about the best way to manage Ms Trethewey’s behaviour.

20. Mr McAlpine confirmed that in the most recent behaviour support plan, dated 20 February 2025,[48] he has removed pacing as a behaviour of concern. He said that this is because Ms Trethewey’s physical capacity has diminished considerably and she is now unable to initiate getting up alone. He understands her physical aggression to now have reduced to once or twice per month rather than daily or weekly, simply because she is significantly weaker than she was before. The reduction in physical aggression has correlated to an increase in distress. Mr McAlpine stated that the presentation of the behaviours of concern have changed as the physical aggression has reduced in frequency and intensity, as has verbal aggression.

    [48] Exhibit 3, Volume 1, A42, 15-46.

21. Mr McAlpine confirmed that any personal care is distressing for Ms Trethewey. Particular triggers for behaviours of concern are attempts at personal care and pad changes. Mr McAlpine stated that Ms Trethewey is incredibly distressed most of the time, confused and sad.

22. Mr McAlpine stated that he could not answer whether more personal care is more distressing for Ms Trethewey than less personal care. He was also not prepared to make any statement on the appropriate care ratios for Ms Trethewey based on her behaviours of concern. He did not see this as part of his role – rather, he saw his role as working with Ms Trethewey’s support workers to ensure that they have the skills and tools to manage Ms Trethewey.

23. Mr McAlpine denied discussing the evidence given at the previous hearing day with Mr Devir. He also denied circulating a copy of his most recent behaviour support plan for Mr Devir’s comment prior to its finalisation. He stated that his behaviour support plan is a living document based on feedback from the people who know Ms Trethewey best.

24. Based on his observations, Mr McAlpine was of the opinion that Ms Trethewey does not have the capacity to engage in community activities and it would not be appropriate to attempt to introduce them. He stated that there has also been a trial of a structured routine, which was unsuccessful. These were just basic daily routines such as standard times for getting up, going to bed and eating. He was not able to provide any documentation in relation to the implementation of this trial and denied having been asked by Mr Devir to say that such a trial had been attempted and failed. He stated that he gained this understanding from feedback from the support team, and that what appears to work best are activities which are led by Ms Trethewey. He stated that the staff who care for Ms Trethewey are now good at reading her moods and emotions to determine what she might like to do at any particular time. In the case of food, they can ask her if she would like to eat, offer her food and see if she takes it, or see if she turns her head when it is offered. He stated that Ms Trethewey’s behaviour management is a complicated process with a lot of trial and error.

    MS MORRISON’S EVIDENCE

25. Ms Morrison is Mr Devir’s sister and is involved in the daily care of Ms Trethewey. She stated that she works beside the carers every day for 12 hours. She explained that she had come to assist with Ms Trethewey’s care for a week three years ago and had not been able to leave due to the intense demands. She stated that two months ago she returned home and rented her house out for 12 months. She stated that she can see Ms Trethewey declining quickly. Her ability to communicate verbally has just about disappeared. She is reliant on carers for mobility and feeding. Ms Trethewey can no longer pace, support herself or walk unaided, although she does still walk the same amount as previously, although with more assistance. She has begun to slump when sitting. They are now using three people for transfers, a carer on each side and Ms Morrison behind.

26. Ms Morrison stated that Ms Trethewey has always had behaviours of concern but the way that they have manifested has changed over time. These behaviours manifest daily. She was very, very violent, which was out of character. Instances of physical violence have now reduced. Ms Morrison stated that in recent times Ms Trethewey has broken Ms Morrison’s glasses, pulled her hair out in clumps - ‘scalped’ her, scratched her, nail gouged her, spat on her, torn her clothing and sworn at her using ‘filthy’ language. The biggest trigger is pad changes and personal care. Ms Trethewey kicks and lashes out with her arms at these times. Ms Morrison described it as a ‘very horrible environment’. She stated that on the day that she gave evidence she had had to clean faeces out from under her fingernails and from under Ms Trethewey’s fingernails. She described pad changes as ‘tricky’ and stated that often they can occur more frequently than every two hours because Ms Trethewey may rip a pad as soon as it is put on or have a bowel movement as soon as it is changed. She can be changed three times in quick succession and often this requires cleaning her, cleaning her clothes and/or bedding and sometimes the carers needing to shower. The demands are relentless. Ms Morrison stated that they just want to be able to continue to do what they are doing.

27. Ms Morrison stated that the Hi-Lo bed ‘was a disaster from go to whoa’ and that Ms Trethewey is just not ready for it yet, although they know that she will end up in it. She stated that environmental restrictive practices have not really been removed, just modified. For example, they still cannot have any glass in the room and only use soft plastic utensils.

28. Ms Morrison told the Tribunal that there is no typical day. Every day is different and it is difficult to prepare. Ms Trethewey is very restless through the night, particularly with pad changes. Pad changes, feeding and personal care will all happen during the course of the day. Ms Trethewey needs to have medication on an empty stomach, so she has this before breakfast. They then try to feed her but if she does not want to eat she will clamp her mouth shut or turn her head.

29. Ms Morrison agreed that she has had no formal training from Mr McAlpine, but stated that she was a schoolteacher for 46 years, so that should count for something in terms of behaviour management. She does sit with the carers while they are talking through Ms Trethewey’s behaviour with Mr McAlpine.

30. She stated that she is now $10,000 in debt as she and Mr Devir are funding all of Ms Trethewey’s needs other than the carers. She described the process of dealing with the NDIA and then having to proceed to the Tribunal as ‘soul destroying’ because they were having to fight for Ms Trethewey’s basic care.

31. Ms Morrison stated that she also does overnight shifts if required, probably once or twice a month, but not as often as Mr Devir.

    MS HAYLETT’S EVIDENCE

32. Ms Haylett is an occupational therapist who gave evidence as an expert witness. She visited Ms Trethewey on two occasions. She stated that she did this because it was made clear by the family that Ms Trethewey’s clinical presentation fluctuates day to day, so Ms Haylett attended the home more than once.

33. She stated that her biggest concern was the lack of assistive technology being used, particularly when changing pads and performing personal care such as bed bathing. There are significant manual handling risks and the possibility of injury to Ms Trethewey and the staff. For instance, when training support workers to lift and support a person they are taught to keep their back straight and use their legs. When Ms Haylett observed the morning routine the support workers were on their knees next to the couch on which Ms Trethewey sleeps which means that they were unable to use their legs. One of the support workers told Ms Haylett that she had advised Mr Devir that she had injured her back lifting Ms Trethewey. Ms Haylett stated that while the carers are able to lift Ms Trethewey’s legs during pad changes they are unable to roll her from side to side to visualise the area. This means that there is a possibility that she is not cleaned properly and is at risk of infection.

1. Ms Haylett reiterated that she recommends the use of a Hi-Lo bed which can be raised to a safe working height for staff and allows for Ms Trethewey to be position supine and her whole body rolled from side to side for pad changes and personal care. Ms Haylett acknowledged that she understood that any new equipment or activity can be triggering for Ms Trethewey and result in behaviours of concern. She explained that it would be preferable to position the Hi-Lo bed where the couch currently is and then introduce Ms Trethewey to the bed using a slow, gradual process. Perhaps she could just be encouraged to sit on the bed and look at a book to begin with. Ms Haylett could not give any indication of how long such an introduction would take but noted that there is a need to plan for the future due to the deterioration in Ms Trethewey’s condition.

2. Mr Devir confirmed that the bed purchased was an active motion bed. Ms Haylett noted that this looks like a standard bed but has all the features required to care for Ms Trethewey optimally. It can be lowered almost to the floor which means that if Ms Trethewey is sleeping without bed rails there is a reduced risk of injury. It has had elevation and knee rake and the whole bed can also tilt diagonally so that care staff can help position her with gravity.

3. Ms Haylett stated that there would still be two staff required for showering, bed baths and pad changes. Once Ms Trethewey was accustomed to the Hi-Lo bed it would be possible to trial pad changes by one person using slide sheets, but this is more time-consuming and may not work in Ms Trethewey’s particular case. Ms Haylett was of the view that if this was successful it would allow for the overnight shift to be reduced to one person on an active shift. The alternative would be two people both doing an inactive overnight shift. This allows for the workers to provide two hours of active support throughout the night and Ms Haylett was of the opinion that this would be sufficient to meet Ms Trethewey’s needs for pad changes and personal care throughout the night.

4. Ms Haylett was of the view that a recliner chair should be trialled for times when Ms Trethewey is sitting and for meals. Ms Haylett explained that this would provide for pressure care and temperature regulation. She stated that she had a concern about Ms Trethewey’s posture, particularly when she is outside on the veranda where she is placed with her feet on an ottoman and her torso slumps. She stated that this can cause a compression of the digestive system and prevent Ms Trethewey from breathing adequately with both bottom lobes of her lungs. A tilt in space or recline function would allow Ms Trethewey to nap in the recliner with head support which would lead to less risk of her head falling back and obstructing her airway. Ms Haylett noted that Ms Trethewey has had problems with airway obstruction and choking which may be alleviated by this assistive technology.

5. Ms Haylett thought that this could then be used for feeding, which may reduce the support ratios required for feeding. The support worker can then feed Ms Trethewey from the front, which may mean that there will no longer be a requirement for two workers. Ms Haylett acknowledged that anything new and unfamiliar will be challenging to introduce and must be done gradually. She suggested that the equipment be rented and trialled at the same time every day and that the recliner be used on the veranda outside so that the visual input for Ms Trethewey is still the same, she is just on a different surface.

6. Ms Haylett was of the view that there is a routine in place in relation to meals, bedtime and medications. Sometimes Ms Trethewey does not participate, but the carers do try. She had reviewed the continence notes and thought that at least 60% of Ms Trethewey’s bowel motions occur between 6 and 10 AM. She noted that Ms Trethewey has between 10 and 13 bowls of watermelon per day which would be equivalent to around 5 kg of watermelon per day and that it is used as a settling strategy. She was concerned about the very large intake of fluid and said that she had suggested alternative strategies such as fiddling blankets but stated that Ms Morrison advised her that Mr Devir did not support the use of that strategy at that particular time. She noted that Ms Trethewey appears to respond to books, photo albums, soft toys and music.

7. It was put to Ms Haylett that due to the decline in Ms Trethewey’s condition her ability to communicate and respond to images has reduced since Ms Haylett saw her. Her main comfort is now being physically touched and having somebody’s arm around her and the ability to put her head on their shoulder. It was suggested that this would not work with a recliner. Ms Haylett noted that it would be different but that it would still be possible for a carer to have an arm against Ms Trethewey, hold her hand, touch her leg and be close to her, but that it was more important for Ms Trethewey to remain safe from breathing difficulties, pressure sores and deterioration of posture.

8. Ms Haylett was asked to give an opinion on the benefits of mobility for Ms Trethewey. It was put to her that the physiotherapist has said that Ms Trethewey should walk around every 30 minutes. Ms Haylett said that the need for exercise needs to be balanced with Ms Trethewey’s fatigue and every 30 minutes may be too much. Overall, she agreed that Ms Trethewey walking is good for her digestion, breathing and posture. She confirmed her view that Ms Trethewey requires two carers to assist with transfers and mobilising. She raised the possibility of using a transfer belt. Mr Devir confirmed that this has been discussed with Ms Ezzy and it has been decided not to use this approach as it was previously used while Ms Trethewey was in hospital.

9. Ms Haylett stated that her first recommendation would be to get a multi-disciplinary team in place to review Ms Trethewey including a dietician, doctor, and continence assessment. She was concerned that if pad changes and personal care are distressing for Ms Trethewey, the increased frequency of pad changes due to the constant eating of watermelon would be increasing her level of distress. She was also concerned about how Ms Trethewey could be getting good quality sleep with so many interruptions through the night and whether or not the continence products being used are sufficiently absorbent.

10. Ms Haylett told the Tribunal that she spoke to Dr Shetty. She stated that Dr Shetty was unaware that Ms Trethewey had no equipment. Ms Haylett said that she requested that Dr Shetty address that issue with Mr Devir. She stated that Dr Shetty had never seen Ms Trethewey in person, only on screens, and she had not been to the home and seen how the activities of daily living were performed. She did not think it was fair to ask Dr Shetty to give a view about care ratios in those circumstances.

    THE TRIBUNAL’S ASSESSMENT OF THE EVIDENCE

11. This matter has been problematic due to Mr Devir’s reluctance to call witnesses. While the Tribunal understands his position that the matter should not have proceeded to a Tribunal hearing, the fact is that it did. It did so because he made an application for the Tribunal to hear the matter and, having done so, he had an obligation to make out his case. After the first day of hearing in this matter the Tribunal adjourned the hearing to allow the further collection of evidence and the calling of witnesses because it was patently obvious to both the Tribunal and the Respondent that there was a significant amount of evidence available which had simply not been collected and put before the Tribunal. The Tribunal could not, in good conscience, have made a decision on the basis of what was before it at that time. To do so would have risked a breach of procedural fairness.

12. Ultimately, the Tribunal did receive enough evidence on which to determine the matter but it notes that as Ms Trethewey’s treating health practitioners and allied health practitioners, such as Ms Ezzy, were not made available to give evidence and therefore to be cross examined, the evidence provided by them in the form of their written reports must be given less weight than the evidence given by the professionals who were cross examined. This is particularly the case as the Tribunal is satisfied that the documents produced for the hearing show that Mr Devir had considerable involvement in the reports provided by these professionals. While the Tribunal cannot be satisfied that Mr Devir exercised any undue influence on the content of these reports, they must be considered with caution in the context where the authors were not made available for cross examination and these interactions were not explained by them.

13. The Tribunal did not find Mr McAlpine to be an impressive witness in the matter of the appropriate care ratios for Ms Trethewey. He stated that the required care ratio of 2:1 came from Dr Shetty and Dr Chesworth, and it is not his place to recommended care ratios but in his planning and reporting he has consistently recorded that a care ratio of 2:1 is required. The Tribunal also has some doubts about his data recording, as the increase in the reports of behaviours of concern correspond with this matter being before the Tribunal.

14. The Tribunal found Mr Devir to be imprecise in his answers to questions and to directly contradict the evidence contained in the shift notes in relation to issues like Ms Trethewey’s sleep and mobility. While it has no doubt that he cares deeply for Ms Trethewey and is seeking to give her the best quality of life in her normal surroundings, it was sometimes unclear why professional recommendations had not been systematically trialled or why technology has not been used to reduce risk, rather than people.

15. In closing submissions, the Respondent put to the Tribunal that it should prefer the evidence of Ms Clarissa Haylett, the independent expert, as it has been untainted by Mr Devir and has been subject to cross examination. The Tribunal agrees that this evidence is to be preferred. The Tribunal was also impressed by the evidence of Ms Morrison. She gave her evidence in a straightforward and forthright manner and was very clear about the daily activities and challenges in caring for Ms Trethewey. Ms Morrison painted a vivid picture of the level of support required.

16. The evidence presented at the hearing is that Ms Trethewey’s physical capacity is in decline, which impacts on her care needs. Although previously capable of rising independently from a seated position and pacing the room with support from carers for safety, Ms Trethewey is no longer able to independently rise from a seated position or independently get out of bed. She sleeps more. This change appears to have occurred in approximately November 2024. The intensity of her physical violence has also reduced somewhat due to the reduction in her own strength.[49]

    [49] Evidence at hearing, 19 March 2025, Mr Lloyd McAlpine and Mr Simon Devir.

    CONSIDERATION

17. The Tribunal must determine which supports are reasonable and necessary, having regard to the criteria set out in s 34 of the NDIS Act. The supports must be necessary to address Ms Trethewey’s needs arising from her early onset dementia, being the condition for which she has met the disability requirements for entry to the NDIS. The supports need to be necessary to assist her to meet her goals. In this case, her primary goal is to remain being safe and cared for in her own home. This supports the need to facilitate her social and economic participation. Ms Trethewey is no longer able to socialise outside her home, but she is able to maintain relationships with her family and with trusted carers.

18. The supports need to represent value for money relative to both the benefits received and the cost of alternative supports. There is no doubt that the level of support proposed by the Applicant in this case is costly. Nonetheless, it is agreed that the best and most appropriate way to care for Ms Trethewey at this time is in her own home. This means that alternative models of care, such as an aged care facility or dementia specific unit are not being considered. The level of support provided by the NDIS in this case must be the minimum level which is reasonable and necessary to address Ms Trethewey’s needs. This support must also be effective and beneficial for Ms Trethewey, having regard to current good practice. No evidence was presented in relation to best practice other than a statement by Dr Shetty to the effect that optimal care for Ms Trethewey would be a care ratio of 2:1 in her own home. Thus far, support has been provided to Ms Trethewey on a model of two active carers for 24 hours per day and this appears to have been effective and beneficial for Ms Trethewey, particularly when compared to the impact of her hospital admission in 2021 which led to a serious decline in her physical, mental and psychological function.

19. The funding or support must also take into account what it is reasonable for a family or the community to provide. The evidence before the Tribunal is that Ms Trethewey no longer has any capacity for community participation. The evidence from Ms Haylett is that it is no longer appropriate for Mr Devir to care for Ms Trethewey due to carer burnout. Ms Morrison continues to care for Ms Trethewey daily, in addition to paid carers. Mr Devir administers all Ms Trethewey’s medication, organises her medical and allied health requirements, runs the household and the finances, spends quality time with her each evening and assists in her physical care as required. The family and community care options for Ms Trethewey are fully exhausted. Paid carers through the NDIS are the reasonable and necessary option.

20. There are some facts in this matter which are essentially agreed. Ms Trethewey has early onset dementia and her condition is declining. Her functional capacity is reducing. All the professionals, including Ms Haylett, agree that she requires the assistance of two people for transfers, mobility and personal care, including the changing of continence aids. These requirements alone mean that she requires a care ratio of 2:1 for a significant part of each 24-hour period. By the end of the hearing the Respondent had acknowledged that a care ratio of 2:1 is required for at least eight hours per day.

21. The Applicant submits that a care ratio of 2:1 is required 24 hours per day. The Tribunal is of the view that the facts support this proposition. Even if there can be changes made to Ms Trethewey’s diet which would reduce the frequency of her pad changes, these changes remain unpredictable throughout the day and night. Ms Morrison’s evidence is that Ms Trethewey may need several changes in quick succession. All the evidence agrees that two people are required for changing continence aids. If Ms Trethewey successfully transitions into the Hi-Lo bed a trial of changes by one person using slide sheets can be done, but even Ms Haylett acknowledges that this may not be successful.

22. In addition, as Ms Trethewey requires two people’s assistance for transfers, and she has many transfers during a day due to her distress, it appears to be impractical and dangerous for Ms Trethewey and the care staff for less than two staff members to be present. Ms Morrison’s evidence is that they are now using three people for transfers, being two support workers and Ms Morrison. There is evidence that Ms Trethewey has had falls from attempting to transfer with less than two support workers and the falls risk assessment of Mr Lennard states that she is a high-risk falls patient, with 2:1 support being justified and the only alternative to care in a facility.

23. There is agreement that Ms Trethewey requires the support of two people for mobility. Walking around the house and garden is a technique for the management of her behaviours of concern and Ms Haylett agrees that it is useful for Ms Trethewey’s digestion, breathing and posture. While she may not need to mobilise as frequently as every 30 minutes, she does require frequent mobilisation and it is not possible to manage this without the support of two people.

24. There is some disagreement about whether or not Ms Trethewey requires two support workers for feeding in the event that she is able to transition to a more upright position in a recliner or wheelchair. In this case, feeding may be able to be accomplished by one carer. Nonetheless, the Tribunal is of the view that Ms Trethewey’s need for two carers to be present for mobility, transfers, continence aid changes and personal care means that it is necessary for Ms Trethewey to have a care ratio of 2:1 for at least 16 hours per day.

25. This leaves the vexed issue of Ms Trethewey’s care requirements overnight. The shift notes show that Ms Trethewey is put to bed between 8 PM and 9:30 PM of an evening and may wake anytime between 4 AM and 6 AM. The shift notes indicate that Ms Trethewey is now reasonably settled at night, although it certainly was not the case while she was still able to be independently mobile. Contemporaneous records show that when she first came home from hospital in December 2021 she was wandering at night in considerable distress and appeared to be experiencing hallucinations and sleepwalking. Given her overall presentation at that time, and her care needs, the Tribunal is satisfied that it would have been necessary for her to have two active carers overnight. The degree of night-time distress appears to have gradually eased although she continues to intermittently have nights in which she is very unsettled and Ms Morrison described her nights as restless.

26. Ms Trethewey is now unable mobilise without the assistance of two people. While it appears that this may have increased her levels of distress it does mean that she is now unable to wander at night as she is unable to independently rise from her bed. From the evidence before the Tribunal this has been the case since November 2024. This does increase her physical safety and reduce the demands on the carers overnight although she still may need companionship and settling during the night.

27. Ms Haylett has suggested that one active night-time staff member may be sufficient. The Tribunal is of the view that this is at odds with Ms Haylett’s own finding about Ms Trethewey’s need to have two carers for continence pad changes and the knowledge that even in the best-case scenario she will need at least two continence pad changes each night. She is currently having about four changes per night. This cannot be accomplished by one person. This means that the minimum night-time requirement is either one active and one sleepover shift or two sleepover shifts, which allow for up to two hours of active care in each eight-hour shift. One active overnight shift would only be possible if it proves to be the case that Ms Trethewey has transitioned to the Hi-Lo bed and one person is able to manage her continence needs using slide sheets. Neither of these circumstances are yet certain and to have one person on an active night shift presently poses an unacceptable risk to both Ms Trethewey and that staff member.

28. The Tribunal formed the view that the reasonable and necessary support for Ms Trethewey was a care ratio of 2:1 active support for 24 hours a day until 30 November 2024. Her care needs and levels of distress and activity were simply too high to be reasonably met at any lower level of support.

29. Since that time her ability to mobilise and her strength has reduced. Although her nights are unsettled, she can no longer wander. The Tribunal was satisfied that the evidence before it establishes that from 1 December 2024 the reasonable and necessary supports in a 24-hour period are a care ratio of 2:1 active support for 16 hours per day and overnight supports of one active and one sleepover shift of eight hours. It is likely that this will change over time as Ms Trethewey becomes less able to mobilise, sleeps more and exhibits less distress. The Tribunal considers that the overnight shifts can both be changed to sleepover shifts at some time in the relatively near future.

1. The Tribunal considered all the other assistive technology and capital recommendations made by Ms Haylett in her report and agreed to by the Respondent. The Tribunal was of the view that Ms Haylett had justified the requirements for this equipment well and could see no reason why they should not be trialled. There is no doubt that the trial of new equipment will be an arduous and difficult process for Ms Trethewey and her carers, but in terms of her ongoing welfare and safety such trials may well be worthwhile.

2. The Respondent proposed that the length of the plan be six months given the continued deterioration in Ms Trethewey’s condition. The Tribunal agrees that this is an appropriate plan length in circumstances where Ms Trethewey appears to be in relatively rapid decline.

   DECISION

3. The internal review decision of 21 June 2023 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 22 January 2023, is set aside and remitted for reconsideration with directions that:

   (a)the following reasonable and necessary support will be funded under the National Disability Insurance Scheme from 22 January 2023:

   (i)2:1 support for 24hours per day, including two active overnight shifts, until 30 November 2024. The Tribunal finds that this support was reasonable and necessary from the date of Ms Trethewey’s discharge from hospital in December 2021;

   (ii)2:1 support for 24 hours per day, including one active and one inactive overnight shift, from 1 December 2024;

   (iii)Consumables – incontinence aids;

   (iv)Assistive technology (AT) – Hi-Lo electric bed; recliner chair with lift feature; tilt in space manual wheelchair and threshold ramps;

   (v)Improved daily living – occupational therapy and AT assessment, 48 hours per annum;

   (vi)Biannual physiotherapy review;

   (vii)A speech pathology review to monitor swallowing and provide training; and

   (viii)A new continence assessment and ongoing involvement by a continence consultant.

Date(s) of hearing:	2 December 2024; 19 and 21 March 2025
Date final submissions received:	21 March 2025
Solicitors for the Applicant:	Self-Represented
Solicitors for the Respondent:	Ms Amanda Whiteley, Maddocks Lawyers Mr Marco Nesbeth, Counsel