Tricare and Minister for Health and Family Services - [2001] AATA 653

DECISION AND REASONS FOR DECISION [2001] AATA 653

ADMINISTRATIVE APPEALS TRIBUNAL )

)Nos Q1998/790-800 &

GENERAL ADMINISTRATIVE DIVISION ) Nos Q1999/28-64

Re TRICARE (ANNERLEY) PTY LTD ACN 009 805 154
First Applicant

TRICARE (COUNTRY) PTY LTD ACN 008 411 069
Second Applicant

TRICARE LIMITED ACN 009 657 345
Third Applicant

NETANYA NOOSA PTY LTD ACN 010 391 983
Fourth Applicant

TRICARE (MERMAID BEACH) PTY LTD ACN 009 757 920
Fifth Applicant

TRICARE (STAFFORD HEIGHTS) PTY LTD ACN 101 976 735
Sixth Applicant

TRICARE (KAWANA WATERS) PTY LTD ACN 050 406 927
Seventh Applicant

And MINISTER OF HEALTH & FAMILY SERVICES
Respondent

DECISION

Tribunal Justice D F O'Connor, President Mr K L Beddoe, Senior Member

Date16 July 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review.

(Sgd) D F O'Connor J
President

Decision No: 653/2001
CATCHWORDS
HEALTH – Nursing homes – Nursing and Personal Care – Scale of fees – characterisation of nursing and personal care duties.
Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367

REASONS FOR DECISION

16 July 2001 Justice D F O'Connor, President Mr K L Beddoe, Senior Member

The Applicants are members of the TriCare Group of companies and were proprietors within the meaning of the National Health Act 1953 (Cth) (the Act) of several nursing homes over various periods between 1988 to 1997.
Pursuant to the statutory scheme operating at that time, the Commonwealth paid a benefit to the relevant applicant for the period 1 July 1988 to 30 June 1993. In 1992 the National Health Act Amendment Act 1992 amended the Act in relation to payment of benefits to proprietors of nursing homes from 1 July 1993 onwards. During the period 1 July 1993 to 30 June 1997, Commonwealth benefit was paid to the proprietors of the TriCare Nursing Centres pursuant to section 51 of the Act as amended. A situation of overpayment arose; the dispute in this instance is the amount of the overpayment.
Pursuant to s 40AA(7) of the Act, the Nursing Homes Financial Arrangements Principles 1989 were formulated. Clause 7 of these Principles provides that the Secretary was to estimate the cost, at relevant award rates, of amounts paid for approved levels of nursing and personal care staff, and when determining this estimated cost, the Secretary was only to take into account the cost of the time of nursing and personal care staff which was used exclusively for the purpose of providing nursing and personal care in relation to the nursing home. These Principles impliedly recognised that some work actually performed by nursing and personal care staff might not be for the purpose of providing nursing and personal care, and they required that work to be distinguished in each case from nursing and personal care, so as to calculate the hours worked exclusively for the purpose of providing nursing and personal care.
The issue arising in the present case is whether three particular types of work performed by nursing and personal care staff employed by the applicants can be classified as "nursing and personal care" as defined in the legislation.
Background and the Legislative Scheme: Notional Scale of Fee decisions
The funding scheme for periods relevant to the matter under review was as per the Act, the National Health Regulations and the Nursing Homes Financial Arrangement Principles 1989.
The Act provides that the proprietor of a residential care facility is entitled to receive "general care benefit" in respect of each "approved nursing home patient" in the home for each day on which the patient receives nursing home care: s 47A(1). The amount of benefit the proprietor is entitled to receive under s 47A(1) equals the difference between the notional fee and the resident contribution: s 47A(2). The Secretary is required to determine a notional scale of fees in respect of each approved nursing home within three years of each accounting period: s 46D(1). Accounting periods are determined in accordance with s 47C. Notional scales of fees are determined in relation to the accounting period in respect of the facility, and in respect of the provision of nursing home care to approved nursing home patients in the nursing home during the accounting period: s 46D(2).
"Section 46D Setting of notional fees
(1) The Secretary must, within 3 years after the end of an accounting period in respect of an approved nursing home, determine a notional scale of fees in respect of the nursing home.
(2) A notional scale of fees, in respect of the nursing home is determined:
(a) in relation to the accounting period in respect of the home; and
(b) in respect of the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to approved nursing home patients in the nursing home during the accounting period.
(3) In determining the notional scale of fees, the Secretary:
(a)must take into account the actual expenditure incurred by the proprietor in respect of the provision of that nursing home care to approved nursing home patients in the nursing home during the accounting period; and
(b)may take into account such other things as the Secretary considers relevant.
(4) The Secretary must, for the purposes of determining the notional scale of fees, order an investigation to be carried out in respect of an approved nursing home to find out the actual expenditure so incurred by the proprietor.
(5) In determining the notional scale of fees, the Secretary must comply with the relevant principles formulated under subsection 40AA(7).
(6) The proprietor affected by a decision of the Secretary under subsection (1) may apply, in writing, to the Minister for a reconsideration of that decision by the Minister.
(7) The application must be made within 28 days after the proprietor receives notice of the decision.
(8) If the proprietor applies for reconsideration of the decision, the Minister may affirm or revoke the decision or vary it as he or she thinks fit.
(9) For the purposes of determining the notional scale of fees for the first accounting period in respect of a nursing home after the commencement of this Act, the accounting period is taken to have commenced on a day determined by the Secretary."

The Commonwealth pays in advance for care of patients in residential care. "Overpayment" therefore arises where there is a difference between the advances of Commonwealth benefit paid to a provider, and the amount payable in respect of the same period: s 46B(2). The proprietor of a nursing home is liable to repay any "overpayment" of benefit: s 51B(1), and such overpayment may be recovered in whole or in part in accordance with s 51C.
Pursuant to subs 40AA(7) of the Act, the Minister of the Department of Health & Family Services (the Minister) formulated the Nursing Homes Financial Arrangements Principles 1988 (effective from 1 July 1988 to 30 June 1989) and the Nursing Homes Financial Arrangements Principles 1989, effective from 1 July 1989, (the Principles).
The Nursing Home Financial Arrangement Principles 1989, Principle 4(1) provides that the Secretary shall determine a notional scale of fees in relation to a nursing home by taking into account:
(a) for a classified patient, the standard fee for patients in that classification;

(b)any loadings in relation to the nursing home, determined by the Secretary in accordance with principle 32; and

In accordance with s 40AGA the Secretary is required to determine the "standard fee" for patients included in each classification determined under s 40AFA(2) in each approved nursing home for a financial year. In accordance with s 40AGA(6) the standard fee for a classification of patients in an approved nursing home that is a Class 2 nursing home is the amount calculated in accordance with the formula: SAM + N, where SAM is the standard infrastructure allowance per occupied bed per day and N is the product of:

(a)the number of staff hours per day of nursing and personal care determined by the Minister to be the number of staff hours of such care to be taken into account for the purpose of s 40AGA(5) in relation to patients having that classification; and
(b)the amount determined by the Minister to be, for that financial year, the amount to be taken into account for the purposes of s 40AGA(5) in relation to the cost per staff hour of providing nursing and personal care in a State or Territory in which the nursing home is situated.

Sub-principle 32(26) provides that in determining a notional scale of fees in respect of each approved nursing home the Secretary shall take into account as a loading the amount determined in accordance with the formula set out in that sub-principle. The Secretary is required to calculate actual expenditure incurred, at the relevant award rate, in respect of the salaries, wages and allowances for the nursing and personal care staff actually utilised by the nursing home to provide nursing and personal care in the accounting period: sub-principles 26A, 26C, 27 and 28. In determining actual expenditure, the Secretary shall only take into account the cost of the time of nursing and personal care staff which is used exclusively for the purpose of providing nursing and personal care in relation to the nursing home: sub-principle 8(2).
"Nursing and personal care" is defined in sub-principle 2(1) as follows:
"(a)the planning or giving of nursing care to an approved patient by nursing and personal care staff;
(b)other care (including therapy and counselling, and oral care where this is not given by a dentist, dental therapist, or other member of the dental profession) 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; or
(ii)       assist the rehabilitation of the patient; or
(iii)       meet a special need of the patient.
(c)the undertaking, by nursing and personal care staff, of a training program of the type covered by subparagraphs 32(26)(k)(ii) or (iii), provided that it is not a course of training and/or study leading to a formal qualification such as an enrolled nurse or a degree in nursing, except where such a course has been explicitly approved for a specific individual;
(d)the undertaking, by nursing and personal care staff, of a training program operated by delegates of the Secretary and approved by the Secretary for the purposes of this paragraph;
(e)the supervision of nursing and personal care staff by other nursing and personal care staff with appropriate nursing, therapy or other appropriate health professional qualifications; and
(g)the undertaking, by the Director of Nursing, of nursing and personal care financial management to the extent necessary to manage allocated nursing and personal care funding, including –
(i)the development, maintenance and management of a nursing and personal care resources budget;
(ii)the management of the impact of admission policy on nursing and personal care budgeting; and
(iii)      nursing and personal care staff management;
but not including –
(iv)       payroll preparation and associated duties;
(v)       the preparation of accounting statements;
(vi)the preparation of statutory returns, such as financial information required by the Secretary, or information required in relation to taxation or workers' compensation; and
(vii)ordering supplies or arranging maintenance, other than in relation to pharmaceutical or medical supplies, and nursing and therapy equipment."

The definition extends beyond strict provision of nursing care to approved patients and includes:

Training and supervision by nursing and personal care staff with appropriate qualifications;
Duties associated with the classification of patients by nursing and personal care staff; and
Certain tasks performed by the Director of Nursing in relation to CAM funding.
"Nursing and Personal Care Staff" in relation to a nursing home means employees or contract staff who provide nursing and personal care to patients of the nursing home and who are within the various categories of employees set out in the definition (Principle 2(1))

Recovery of Overpayments

As a result of the decisions of Mr Paterson and Ms Laut, the Commonwealth became entitled to recover certain amounts as "overpayments" of Commonwealth benefit paid to TriCare for the 1993/94 to 1996/97 accounting periods, pursuant to ss 46B and 51B of the Act.
The overpayments were recovered by the Commonwealth by way of deductions from later advances of benefits paid to the proprietors of the relevant TriCare Nursing Centres, pursuant to s 51C of the Act.
The overpayments which arose in relation to Huntingtower Nursing Centre for the 1993/94 and 1994/95 accounting periods were recovered by way of deductions from advances of Commonwealth benefit paid to Stafford Heights Private Nursing Centre. Huntingtower Nursing Centre closed on 12 April 1995 and 60 of its 75 bed approvals were transferred to Stafford Heights Private Nursing Centre, which opened on the same day.
While the parties disagree about the amount of the overpayments that should have been recovered, they agree that the Commonwealth was entitled to recover the overpayments pending resolution of that dispute.
Summary of the Grounds of Review
The Applicants claim the decision maker did not make allowance for the following items of expenditure in the Notional Scales of Fees confirmed or varied by her decisions:

The estimated cost of the time spent by nursing and personal care staff performing functions associated with the provisions of meals to residents (the plating adjustments);
The estimated cost of the time spent by nursing and personal care staff at Mt Gravatt Nursing Centre performing certain functions associated with the provision of clean linen (the laundry adjustments); and
The estimated cost of the time spent by the AIN/Clerk performing various functions described in timesheets maintained by TriCare (the AIN/Clerk adjustments).

The Applicants claim that the decision maker's decision to disallow expenditure, by way of the above adjustments, was based upon incorrect findings of fact in relation to the nature of the activities upon which the applications were based; and an incorrect interpretation and application of the relevant law.
The Applicants submit that the correct and preferable approach is not to disallow expenditure on the three areas of adjustment in the calculation of the Notional Scales of Fees, on three bases. Firstly, the Applicants claim the allowance of expenditure is legitimate because the amounts constitute actual expenditure incurred by the proprietor in respect of the provision of nursing home care to approved nursing home patients in the nursing home during the accounting period within the meaning of subsection 46D(3)(a) of the Act. Secondly, or in the alternative, the amounts constitute expenditure incurred by the nursing home, the relevant award rates of the salaries, wages and allowances for the nursing and personal care staff actually utilised by the nursing home to provide nursing and personal care, within the meaning of sub-principle 32(26)(k)(i) of the relevant principles. Thirdly, or in the alternative the amounts were required to be taken into account as a matter of discretion, as "such other things as the Secretary considers relevant" within the meaning of subsection 46D(3)(b) of the Act.
The Respondent in its Statement of Facts and Contentions says the term "care" is undefined but it takes its meaning according to the context to which it is applied, ie. the proper provision of assistance to a patient. The Respondent argues that not everything done for a patient at a nursing home involves the provision of "care" as that term would be understood in this context, and further, that not all "care" is relevant as only nursing and personal care is relevant care for this purpose.
The term "nursing care" is not separately defined but is used here in its ordinary meaning. In many cases there is no rigid demarcation between domestic assistance and nursing and the types of care within paragraphs (a) and (b) of the definition of "nursing and personal care" may not be mutually exclusive.
However the essence of the type of care involved is that it relates to the health and wellbeing of the patient. So insofar as it does not involve nursing care, it must:
(i)assist the patient to carry out activities of daily living which the patient is unable to perform adequately without assistance; or
(ii)assist the rehabilitation of the patient; or
(iii)meet a special need of the patient.

In each case the purpose of the provision of the care is described by reference to the patient's health or wellbeing. As to what is involved in the activities of daily living the same legislative scheme set out in Regulation 4A and Schedule 1A defined the "the provision of assistance in the activities of daily living of residents" by reference to:
Assistance to residents in:
(a) bathing, showering, personal hygiene and grooming; and

(b)toileting and the management of incontinence, the use of aids and appliances designed to assist incontinence management; and
(c)eating, use of eating utensils and eating aids, actual feeding, and
(d)dressing, undressing and the use of dressing aids,- and
(e)moving, walking, wheelchair use and the use of devices and appliance designed to aid mobility, and
(f)the provision of eating and dressing aids.

The Respondent sought to make the point that the care must be provided to an approved patient personally, by referring to Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 at 378 per Branson J. It claimed that each care situation must be one which relates to a particular patient and the provision of care must be so closely connected to the patient as to be provided personally to him or her. The Applicants argued for a broader view of "personally", in that the care be provided either to the resident's physical person or to meet a personal need, as opposed to being provided for the residents generally. That is, the physical presence of the resident during the performance of the task in question is not a prerequisite to a task being characterised as nursing and personal care.
The Applicants contend that activities associated with or for the purpose of the provision of nursing and personal care are to be treated as equivalent to nursing and personal care. The Respondent claims in opposition that the nursing and personal care cost must be the cost of actual provision of nursing and personal care. Three reasons were given for this:
40AG(7)(ab)
in relation to a financial year commencing on or after 1 July 1989, N is the amount determined by the Minister to be the daily nursing and personal care cost in relation to non-classified patients in the nursing home for that financial year;
(b)
NPC is the annual nursing and personal care cost of the nursing home for that financial year determined in accordance with principles formulated under subsection 40AA(7) and on the assumption that all patients in the home are non-classified patients;
40AGA(5)
The standard fee for a classification of patients in an approved nursing home that is a Class 1 nursing home other than an adjusted fee government nursing home is the amount calculated in accordance with the formula:
where:
AIA and ABD have the same respective meanings as in subsection 40AG(7).

(b)the Principles require that relevant amounts be calculated by reference to the actual provision of nursing and personal care, eg clause 32(26) and the references to the number of staff hours per day of nursing and personal care (Principle 32(26)(a), and to expenditure incurred at the relevant award rates, in respect of salaries, wages and allowances for the nursing and personal care staff actually utilised by the nursing home to provide nursing and personal care" (Principle 32(26)(k)).

(k) AE is:
(i)        the expenditure incurred or, where this is not available, the estimated expenditure determined by the Secretary as having been incurred by the nursing home, at the relevant award rates of the salaries, wages and allowances for the nursing and personal care staff actually utilised by the nursing home to provide nursing and personal care in the financial year, determined in accordance with subprinciples (26a), (26c), (27) and (28), plus the expenditure incurred or, where this is not available, the estimated expenditure determined by the Secretary incurred by the nursing home in paying a pharmacist for the additional packaging required to allow the nursing home to operate a unit dose medication system; plus
(ii)       Subject to subprinciples (27), (28) and (28C) and (28D), the expenditure incurred by the nursing home during the financial year in providing a structured training program to nursing and personal care staff, where the training is provided by people with appropriate nursing therapy or other appropriate health professional qualifications, and where the sole object of the program is to develop, maintain and improve the skills required by nursing and personal care staff in providing nursing and personal care or in assisting nursing home patients to maintain oral and dental health; plus
(iii)       subject to subprinciples (27), (28), (28C) and (28(D), the expenditure incurred by the nursing home during the financial year in providing a structured training program in occupational health and safety to nursing and personal care staff, where the training is provided by people with appropriate qualifications; plus
(iv)      subject to subprinciples (27), (28) and 28(D) the expenditure incurred by the nursing home in paying for the travel and accommodation costs of its nursing and personal care staff travelling to attend a training program of the type covered by subparagraphs (ii) or (iii) where –
          (a)       the nursing home is situated at least 50 kilometres by the nearest all-         weather road from a major population centre; and
(b)       the training program is being conducted in that centre, the travel is to                  that centre, and the accommodation is in that centre;

(v)       subject to subprinciples (27), (28), (28E) and (28F), the expenditure incurred by the nursing home during the financial year is paying nursing and personal care staff to discuss with nursing home patients and their relatives the agreement under section 40ABB of the Act; plus
(vI)      subject to subprinciples (27) and (28), the expenditure incurred by the nursing home during the financial years in providing counselling, by nursing and personal care staff who are social workers or qualified welfare officers, of other nursing and personal care staff in relation to problems which arise out of their providing nursing and personal care; plus
(vii)     subject to subprinciples (27) and (28), the expenditure incurred by the nursing home in providing interpreting services to assist in the provision of nursing and personal care.
(c)it is inconsistent with the fundamental structure of the funding scheme with reimbursement for the distinct components of infrastructure costs and nursing and personal care costs. Separately funded infrastructure cost could otherwise be recovered as "associated with" or "for the purpose of" nursing and personal care.

Apart from expressed instances of certain work as nursing and personal care, work within the infrastructure component does not become allowable because it is done for the purpose of the provision of nursing and personal care work, or is associated with it.
Factual Background
Overview

The types of benefit advanced to TriCare during the period 1 July 1993 to 30 June 1997 included "general care benefit" for the provision of "nursing home care" to "approved nursing home patients", which later became payable pursuant to ss 47A, 48A and 48AB of the Act.
The nursing home proprietor's entitlement to general care benefit was calculated by reference to a "notional scale of fees" for a particular "accounting period".
Pursuant to s 46C of the Act, the Secretary determined the following accounting periods for the TriCare Nursing Centres: 1 July 1993 to 30 June 1994 (1993/4); 1 July 1994 to 30 June 1995 (1994/5); 1 July 1995 to 30 June 1996 (1995/6); and 1 July 1996 to 30 June 1997 (1996/7).
On 27 June 1997, Mr Martin Paterson as delegate of the Secretary determined notional scales of fees for each of the TriCare Nursing Centres for the 1993/4 accounting period pursuant to s 46D(1) of the Act. On 29 July 1997, TriCare applied for Ministerial review of those decisions pursuant to s 46D(8) of the Act. As a result of the review, new notional scales of fees for 1993/4 were substituted by Ms Pieta Laut, as delegate of the Minister, on 14 July 1998. Certain adjustments incorporated in the new scales of fees were in TriCare's favour.
On 14 August 1998, TriCare applied to this Tribunal for review of Ms Laut's decisions of 14 July 1998, pursuant to s 105AB(1A) of the Act. The relevant applications are Q1998/790-800 inclusive.
On 15 June 1998, Mr Martin Paterson, as delegate of the Secretary, determined notional scales of fees for each of the TriCare Nursing Centres for the 1994/5, 1995/6, and 1996/7 accounting periods. On 6 July 1998, TriCare made an application for Ministerial review of Mr Paterson's decisions of 15 June 1998, pursuant to s 46D(6) of the Act. On 10 December 1998, Ms Laut, as delegate of the Secretary, purported to affirm all of the decisions of Mr Paterson of 15 June 1998. Mr Paterson had conceded a number of issues raised by TriCare in letters dated 28 April 1998, 3 June 1998, and 25 August 1998 however, Ms Laut confirmed those concessions in her decisions of 10 December 1998. On 8 January 1999, TriCare applied to the Tribunal for review of Ms Laut's decisions of 10 December 1998 pursuant to s 105AB(1A) of the Act. These applications constitute Q1999/28 to Q1999/64 inclusive.
Loadings in relation to 1988/89 to 1992/93 included in the 1994/95 Notional Scale of Fees

In determining the notional scales of fees for all of the TriCare Nursing Centres, with the exception of Kawana Waters and Stafford Heights Private Nursing Centres, for the 1994/5 accounting periods, Mr Paterson and Ms Laut took into account certain amounts that derived from benefits paid to the relevant nursing centres between 1 July 1988 and 30 June 1993, as a loading pursuant to sub-principle 32(35) of the Principles. Kawana Waters and Stafford Heights Private Nursing Centres did not open until 12 April 1995.
In the notional scale of fees for Cypress Gardens Nursing Centre for 1994/95, Mr Paterson and Ms Laut took into account certain amounts that derived from benefits paid to Broadbeach Nursing Centre between 1 July 1988 and 19 February 1991, as a loading pursuant to sub-principle 32(18) of the Principles. Broadbeach Nursing Centre closed on 19 February 1991 and a number of its bed approvals were transferred to Cypress Gardens Nursing Centre, which opened on the same day.
Disallowance of certain items of expenditure for the purpose of determining the Notional Scales of Fees

The Notional Scales of Fees do not make any allowance for the following items of expenditure incurred by the proprietors of the relevant TriCare Nursing Centres, because Mr Paterson and Ms Laut considered that they were not "nursing and personal care" as defined in the Principles:

the estimated cost of the time spent by nursing and personal care staff, as defined in the Principles, (NPC Staff) carrying out the activities described by the Department of Health & Family Services (the Department) as "plating" meals, at all of the TriCare Nursing Centres with the exception of Annerley Nursing Centre;
the estimated cost of the time spent by NPC Staff performing certain activities described by the Department as "laundry duties" at Mt Gravatt Nursing Centre; and
the estimated cost of the time spent by the AIN/Clerk at each of the TriCare Nursing Centres performing certain activities.

Information on which the decisions of Mr Paterson and Ms Laut were based

The amounts of the items of expenditure referred to above and the decisions to disallow them for the purpose of determining the Notional Scales of Fees, were based upon information including the following:

NH20 Forms submitted by TriCare to the Department;

the validation of the periods 1988/89 to 1993/94;

the validation of the periods 1994/95 to 1996/97;

circulars issued by the Department;

manuals issued by the Department; and

the surveys completed by the AIN/Clerks at the TriCare Nursing Centres

NH20 Forms

For the purpose of obtaining payment of Commonwealth benefit between 1 July 1988 and 30 June 1997, nursing home proprietors were required to submit an "NH20 Form" to the Department each year, setting out the details of their claim for benefit in respect of the relevant period.
NH20 Forms were submitted by TriCare for each TriCare Nursing Centres for each year, in relation to the periods 1988/89 to 1996/97.
Validation of 1988/89 to 1993/94 and 1994/95 to 1996/97

The Department used the validation program to verify that costs relating to certain types of expenditure claimed by proprietors of nursing homes had been incurred in accordance with the requirements of the legislation.
The Brisbane branch of the Department commenced a validation of each of the TriCare Nursing Centres on 23 January 1996, in relation to the expenditure incurred by TriCare to for the period from 1 July 1988 to 30 June 1993.
The exit interview in relation to the validation of the periods 1988/89 to 1993/94 was conducted on 30 July 1997. At that exit interview, TriCare was provided with a document entitled "Exit Interview and Draft Report of Findings" by the Departmental officers.
Between 16 February and 25 March 1998, the Brisbane branch of the Department conducted a further validation of each of the TriCare Nursing Centres, for the accounting periods 1994/95 to 1996/97.
The exit interview in relation to the validation of the periods 1994/95 to 1996/97 was conducted on 30 April 1998. At that interview, TriCare was provided with a second document entitled "Exit Interview and Draft Report of Findings".
The two validations of the TriCare Nursing Centres involved, inter alia, inspection of TriCare's records supporting amounts claimed for all nursing centres, visits to the centres in operation at the time and interviews with their staff.
"Staff Discussion Notes" were made by the Departmental officers while conducting site interviews with nursing centre staff during the validations and this is the anecdotal evidence upon which the validation findings were based.
No staff discussions or site visits were conducted at Huntingtower Nursing Centre, as it closed on 12 April 1995, prior to both of the validations. Some discussions were held with staff formerly from Huntingtower Nursing Centre, while conducting staff discussions at other centres.
The determinations of Mr Paterson and Ms Laut were, in part, based upon the findings of the validation officers for the relevant periods. Mr Paterson was one of the officers involved in both validations.
Circulars issued by the Department

The Department regularly issued "circulars" to proprietors of nursing homes, advising of changes to the legislation and the administration of the funding scheme. Although not having the force of legislation, these circulars assisted in ensuring fairness and consistency in administering the scheme.
Circulars issued by the Department included:

Nursing Homes (Participating) Circular No, 72 entitled "Introduction of New Financing Arrangements for Nursing Homes for the Aged - 1 July 1987", which was distributed to nursing homes in April 1987; and
Commonwealth Department of Health Housing & Community Services Circular CNH (NG) 92015 entitled "Classification of Bed Making and Plating in relation to Care Aggregated Module (CAM) Funding", which was dated and issued to nursing homes on 6 July 1992.

Circular No 72 noted that difficulties might arise where staff classified as NPC staff took on duties not associated with the provision of NPC. It also noted that:
"It is recognised that difficulties might arise where staff so classified take on duties not associated with the provision of nursing and personal care. The Department would be concerned to ensure that staff funded under the Nursing and Personal Care Fee Module do not undertake duties other than nursing and personal care duties to a significant extent. At the same time the Department does not wish to introduce demarcation issues and artificial rigidities that would put in jeopardy the quality of life and care outcomes for residents. Accordingly, it will approach this matter with a degree of flexibility but will intervene should nursing and personal care staff be excessively used for functions covered by SAM. Guidelines will be developed to assist in the determination of excessive use of nursing and personal care staff for SAM functions."

Nursing Home Manuals

On 1 July 1990, the Department issued a manual called the "Nursing Home Management Manual", which was prepared by the CAM Management Support Consultancy (a consortium of the Australian Affiliation of Voluntary Care Organisations Incorporated and the Australian Nursing Homes' Association) for the Department. The purpose of the manual was to assist nursing home managers to effectively manage their homes under the funding arrangements in force at the time.
On 28 March 1995, the "Nursing Home Manual" was issued by the Department to explain the Commonwealth's policies and operational requirements for nursing homes. It was designed to take the place of the circulars previously issued by the Department.
Issues In Dispute
In this review the character of three areas of service activity in the nursing homes are being disputed. The dispute relates to two of the Department's categories of funding ie.
CAM - the provisions of funds for nursing and personal care
SAM - an amount to cover the nursing homes' infrastructure costs
The areas of activity in dispute are:
(a) Plating: putting food on plates from a bain marie;

(b)Laundry Duties: collecting bed linen from a laundry and folding that linen before taking it to the patients' individual rooms;
(c)Assistants-in-Nursing/
Clerk Duties: a wide variety of tasks which ranged across areas such as carrying out errands for patients, assisting patients with menu selection, rostering and payroll tasks, organising patient transport, assisting patients at meal times, orienting new patients to the Centre etc.

Before turning to consider these specific issues it is relevant to note:

(a)that while some people may define a social policy in terms of a specific task or device the generally accepted view is that it is preferable that these definitions take their stand on the aims and objectives of the policies and not on the specific actions or devices used to achieve them. To focus on a specific task or device in the absence of a conceptual framework of aims is to take a meaningless shred from the fabric of the policy.

(b) that there is a difference between the concepts of:

(i)the integration of elements in service provision; and
(ii)the co-ordination of elements in service provision.

In this context integration means combining service elements into a whole activity and co-ordination means placing or arranging services in a proper position relative to each other.
Social Policy Issues
Social policies are products of our history and for this reason perspectives on the Commonwealth Government's nursing home polices are acquired by examining their evolution within the context of the Commonwealth Government's national health policies and associated services for chronically sick and disabled people.
An historical perspective brings into focus the fact that the Commonwealth Government's nursing home policies are concerned about the nursing care of severely disabled and sick people and in this sense are different from other accommodation and support services for aged and younger infirm people who do not require intensive nursing and medical care.
The health policies introduced over the period 1950-1953 were a mixture of publicly financed schemes and voluntary contributory health insurance schemes. These measures undoubtedly benefited aged and disabled people in a number of ways but overall they did not provide a comprehensive system of care for chronically sick and disabled people. The Commonwealth Government was cognisant of these difficulties at the time the National Health Bill was introduced in 1953 but at that time the Minister for Health, Sir Earle Page, expected that as the schemes developed and as the financial resources of the organisations became "clearer and more substantial" the deficits in the health policies would be rectified (Commonwealth Parliamentary Debates, H.R. 2, 12 November 1953 p.158).
Perceived deficits in the national health policies resulted in a number of changes to the health policies which led to a separate system of financing for the "nursing home sector" – private, voluntary and public services – in 1962.
When introducing Amending Legislation to the Parliament in 1962 the then Minister for Health, the Hon. R.W.C. Swartz said:
"There is one other group of patients in regard to which the existing arrangements have not been operating satisfactorily and that is the patients in convalescent homes and rest homes and in the infirmary sections of State benevolent homes and State and private homes for the aged. Because many patients in these homes are pensioners and because they very often remain in the homes for long periods of time, the Government has decided that they should not be obliged to join health insurance funds to qualify for Commonwealth benefits. It is therefore proposed that patients in these institutions will receive a Commonwealth benefit of £1 a day which will be deducted from their accounts by the institution regardless of whether they are insured with a hospital insurance fund.
The institutions to which this arrangement will apply are institutions which in the past have been treated as 'unrecognised hospitals' in the hospital benefits legislation. In future it is proposed that patients in these institutions will be classified as nursing home patients and the legislation provides that the Commonwealth benefit of £1 a day will be payable for 'nursing home care' in those nursing homes. The benefit will be paid from the first day of their admission to the nursing home and will continue without limitation as long as they are patients there." Commonwealth Parliamentary Debates H.R. 37, 27 November, 1962 pp 2568-2569.
While there have been many changes to nursing homes policies since 1962 the primary objective of providing nursing home care for chronically disabled and sick people has not changed and the Commonwealth Government has continued to pay subsidies to private, voluntary and public organisations who provide nursing home services.
Evidence
The Tribunal had the benefit of a view at the Mt Gravatt Nursing Centre where we observed the layout and the serving of lunch.
Each of the witnesses called to give evidence made a witness statement which was tendered and marked as an exhibit. The witnesses and their statements are as follows:-
           Anthony John Quinn  Exhibit A1
Michelle Wendy White                   Exhibit A2
Shirley Diane Waddell                   Exhibit A3
           Gladys Loretta Crowle                   Exhibit A4
           Gabrielle Matthews  Exhibit A5
           Karen Denise Grinlaubs                Exhibit A6
           Arthur George Brotherhood          Exhibit A7
           Martin Weston Paterson                Exhibit R1

Plating of Meals

For the purpose of determining the Notional Scale of Fees, Mr Paterson and Ms Laut disallowed the estimated cost of the time spent by NPC staff on the activities described by the Department as "putting food on plates from a bain marie (plating)". The periods involved at each nursing home are set out in the statement of agreed facts and need not be repeated here.

The amounts disallowed were based on the cost of the time spent by NPC Staff in and associated with the following, as estimated by the Department:

putting food on plates from a mobile bain marie which was transported around the wings in order to serve meals to bed-ridden residents, at the nursing centres listed in the statement of agreed facts; and
during 1992/93 to 1993/94 at Mt Gravatt and Jindalee Nursing Centres and during 1994/95 to 1996/97 at Cypress Gardens, Mt Gravatt, Jindalee and Mermaid Beach Nursing Centres - putting food on plates from a bain marie located in the servery, while serving meals to residents in the communal dining rooms.

In addition to the above, it appears that some adjustments have been made for 1994/95 to 1996/97 for plating in the special needs units at Kawana Waters and Stafford Heights Private Nursing Centres.

The treatment of "plating" as a separate task from the other tasks being performed

The amount of the cost of NPC Staff disallowed for the purpose of determining the Notional Scales of Fees was based on an estimate of the time spent by NPC Staff putting food onto plates, while the other costs associated with the serving of meals were accepted.
In summary, NPC Staff members who serve food to residents undertake the following activities while serving meals:-

ascertaining the general dietary requirements of each resident, having regard to their records and their knowledge of the resident;

ascertaining the immediate dietary requirements of each resident, having regard to any current medical treatments they are having;

ascertaining the resident's ability to eat particular foods, for example, their ability to swallow (which may change throughout a day) or whether they should be given soft foods;

ascertaining each resident's own particular requirements for the meal in question, for example whether they are hungry or well, what sort of food they would prefer etc;

matching requirements described above with the food available for that meal;

determining a meal of appropriate quantity and type specific to each resident's individual needs;

placing the appropriate quantity and combination of food onto a plate for the resident from the bain marie.

meeting the logistical requirements of each resident, for example whether they need special cups or cutlery in order to eat their meal;

taking the plated meal from the trolley or servery and placing them before the resident;

ensuring the resident is comfortable and able to eat their meal easily;

assessing and providing any assistance the resident requires to eat their meal;

dispensing any medications which are required to be taken with the meal or at mealtime; and

assessing any other needs and providing the required care.

Validations on which the calculations were based

The Department's estimates of the cost of the time spent "plating" were based upon its findings following:

discussions conducted with various staff at the TriCare Nursing Centres, during the validation of the periods 1988/89 to 1993/94 and 1994/95 to 1996/97; and
visits to each of the TriCare Nursing Centres (with the exception of Huntingtower Nursing Centre), during the validation of the periods 1988/89 to 1993/94 and 1994/95 to 1996/97.

The amounts of expenditure disallowed for Huntingtower Nursing Centre were based on the adjustments for Toowoomba Nursing Centre, as no validation interviews or visits were undertaken for that centre.
The Respondent argued that while nursing and personal care staff members perform CAM work in many ways in the course of the provision of food to patients, the actual task of putting food on plates from a bain marie is not to be so characterised. The respondent drew a distinction between CAM tasks such as providing assistance to an individual patient to eat his or her meal or dispensing medication required to be taken with a meal and plating. The Respondent claimed that while the relevant task might sometimes be performed in the course of work which is generally nursing and personal care, the intention of the Principles is to bring into account only the tasks exclusively involving nursing or personal care. Clauses 7(1) and 8(2) of the Principles were relied on in this respect.
The Respondent contends that while the provision of food is essential this does not make its placement on plates nursing or personal care. To find otherwise would mean the preparation and cooking of the meal would be tasks within the definition as would the delivery of the meal to the dining room or other place where it is to be eaten. The placing of food on plates within, for example, a hospital kitchen by domestic staff working only within the kitchen does not satisfy us that those staff are providing nursing or personal care of any patient who receives their meals. The Respondent claims that the position is no different where the same task is done by someone who is a nurse or is performing other tasks which are nursing or personal care.
In the present cases, the staff performing the plating task were not the staff who, in some cases, would then assist the patient with the meal. This assistance was given by nursing and personal care staff.
The Applicants argued that the estimated cost of the time spent by nursing and personal care staff "plating' meals should be taken into consideration in the determination of the Notional Scales of Fees, on the following bases:

(a)those activities constitute the giving of nursing care within the meaning of part (a) of the definition of nursing and personal care in sub-principle 2(1) of the Principles; and/or
(b)those activities constitute activities associated with the provision of nursing and personal care in the strict sense, so that they fall within the definition of nursing and personal care in sub-principle 2(1) of the Principles; and/or
(c)the time spent on those activities was time spent for the purpose of providing nursing and personal care in relation to the nursing home, within the meaning of sub-principle 8(2) of the Principles; and/or
(d)the cost of the time spent performing those activities should be taken into account in the determination of the Notional Scales of Fees as "such other matters as the Secretary considers relevant", within the meaning of subs 46D(3)(b) of the Act.

The evidence given to the Tribunal by senior registered nurses employed by Tricare made it clear that they have a responsibility for monitoring and attending to the nutritional needs of patients. Also, they are helped to discharge this responsibility by the other nursing and personal care staff. A registered nurse is in charge at all meal times and only nursing and personal care staff are involved in the selection and distribution of food and attending to the needs of patients who require special assistance eg. feeding.
The patients in the nursing homes suffer from a wide range of conditions which are often unstable. This means that the process of attending to the nutritional needs of patients calls for an interplay of nursing knowledge and skills, factual information about a patient's state at any given time, their specific limitations and the patients' preferences. The following statements by two of the senior registered nurses who gave evidence exemplifies their points.
Michelle Wendy White is a registered general nurse, former Director of Nursing and Clinical Care and now the Administrator of the Mount Gravatt Nursing Centre. In her witness statement she said:
"13.     Between mid-1995 and mid-1997, meals at Mt Gravatt Nursing Centre were 'plated' by NPC Staff. That means that they put food on the plates for each resident from a bain marie, and assembled a tray with their food, crockery, cutlery, cups, condiments and any specific purpose eating utensils.
14.      When NPC Staff plated the meals for residents they had the relevant residents in mind, and plated a meal of suitable size and content. I feel that it was essential for the person who did the plating and the person who did the serving to be NPC Staff members, as they had the necessary skills and knowledge of the residents in order to ensure they received suitable meals.
15.      Nutritional needs and dietary requirements may change from meal to meal depending on a person's physical state or their mental state for the day. It is also important to make sure that choices are made available to residents from a safety aspect, such the type of fluids or the type of diet. Somebody may not recognise their illness and often residents do not recognise their own limitations and feel that everything is fine, whereas they are a high risk. Some residents are very impulsive because of their disease process.
16.      I believe that the manner in which we provided the meals, with NPC Staff plating the meals, was essential to meeting the residents' individual nutritional needs and dietary requirements.
Meals are still plated by NPC Staff at Mt Gravatt Nursing Centre today. It is very functionally efficient and is the best way of meeting the needs of the individual residents."
Anthony John Quinn is a registered general nurse who also holds a geriatric nursing certificate (N.S.W.). Mr Quinn was a former Director of Nursing at the Point Vernon Nursing Centre and is currently Operations Manager in Tricare's Head Office. In his witness statement he said:
"In plating a meal for a resident, the NPC staff members would have in mind the particular resident for whom the meal was intended. The plating of the meals was part of the larger function of ensuring that residents were properly nourished and hydrated.
The plating of meals by NPC staff is the best and most efficient manner of meeting residents' nutritional, dietary and medical requirements, and it is also consistent with the holistic care of those residents.
NPC staff are the best able to plate the meals, because they are aware of the specific dietary needs of the residents and up-to-the-minute changes in their conditions and needs, so that they are able to make appropriate changes to the actual diet and amounts of foods that they plate."

Members of the Tribunal visited the Mount Gravatt Nursing Centre at a meal time. During this visit the Tribunal observed that NPC staff were collaborating with each other about patients' needs at the time NPC staff were serving meals from a bain marie. It was also evident that if someone without the relevant nursing knowledge were to plate the meals that that person would have to be instructed and supervised by NPC staff. In the words of Michelle Wendy White's evidence "If SAM staff plated it would be a waste of time, because the SAM person would be waiting for NPC staff to direct them as to what types of food were to be served on to which plate, with what utensils. Some residents require certain specialised feeding plates, spoons and other things. The whole process would be very time consuming".
Given these circumstances and the fact that the specific action of plating the food is a relatively simple action in the constellation of factors – knowledge and skills – required to meet the nutritional needs of patients that it is reasonable for the Applicants to have integrated plating into their nursing and personal care services.
In relation to the serving of meals to residents from mid 1995 to mid 1997, meals for residents at the Mt Gravatt Nursing Centre were transferred from bain maries to plates by nursing staff. During a meal period this procedure was undertaken at three locations in the Centre. One fixed bain marie was located in the kitchen adjacent to the dining room and two mobile bain maries were located at various points in the wings to facilitate service of meals to residents who needed to or preferred to eat in their rooms.
Hot food on the bain maries was prepared outside the Centre. Some food such as salads and sandwiches was prepared in the on-site kitchen by kitchen staff.
The serving of meals was conducted differently depending on location. However the process commences on a common basis with residents selecting their menu for the next day usually in consultation with the AIN/Clerk or a nurse. That consultation would include guidance as to appropriate food for the resident in the light of the resident's care plan. Such menu selection was not however rigid in its effect because the Centre accommodated changes in choice whether as a mere change of whim or for reasons connected with the resident's wellbeing. Those changes could occur up to the time of the meal and it is therefore apparent and generally accepted that supervision of the diet of individual residents is necessary up to the point of putting the requested food on the plate. That supervision is necessary as to choice of food (including whether it should be mashed or pureed) and the quantity of the food to be served.
It was the essence of the practice of plating meals that the nursing staff putting food on the plates knew and understood the requirements of the individual residents with regard always being had to the current state of health, ie their health on the day. That was said by the witnesses to be a nursing function because of the need to take into account the state of health of the resident and to adjust the meal to those circumstances.
The practice for plating and serving meals from the mobile bain-maries in the wings was that one member of the team would plate and the other(s) serve and supervise the residents. In the dining room the actual plating was normally done by the Director of Nursing or the Assistant Director with service to residents being undertaken by nursing staff and diversional therapists.
The process of serving meals was the same for breakfast, lunch and dinner throughout the week. There was a constancy in the procedure designed to meet the needs of the residents depending as it did on the particular knowledge of the nursing staff as to the needs of the individual residents.
We are satisfied on the material that the necessary provision of appropriate meals three times a day was a significant feature in the activities of daily living by the residents at Mt Gravatt. It was, as Mrs White said, a significant feature of the holistic nursing care provided by the Centre. That is also apparent from the fact that the nutritional needs of residents were determined on an individual basis by the registered nurses. This was not a function assigned to enrolled nurses or diversional therapists. In determining the dietary needs the registered nurses took into account each resident's current well being, maintaining their nutrition in that context and the need to maintain the resident's hydration.
The applicants do not follow a universal practice in their centres as to plating and serving of meals. In some homes the plating of meals is done by domestic staff under supervision of a registered nurse. The supervision of the registered nurse is however constant in all homes. The evidence also satisfies us that the residents react more favourably to nursing staff participating in and supervising the selection and serving of their meals. Ms White agreed, in the course of cross-examination, that it was not necessary to use two nursing staff for plating of meals. But if there are not enough SAM staff to do plating of the meals then it must be done by two nursing staff. We are satisfied there is no other viable option which would meet the needs of the residents.
We have come to that view after taking into account the evidence that in some centres operated by the applicants the actual plating of food is done by the domestic staff. The function is however always supervised by a registered nurse so that in those cases it is the supervision rather than the actual plating of the food which is nursing and personal care activity. We are satisfied however that where plating of food is done as part of the nursing function then that is properly characterised as nursing and personal care.
Laundry duties
The estimated cost of "laundry duties" performed by NPC Staff at Mt Gravatt Nursing Centre
For the purpose of determining the notional scales of fees for Mt Gravatt Nursing Centre, for the 1993/94 to 1996/97 accounting periods, Mr Paterson and Ms Laut disallowed the estimated cost of the time spent by nurses fetching linen from storage in the laundry area for use in the bedrooms, as well as folding that linen on some occasions, during the periods 1992/93 to 1996/97.
The amounts disallowed were based on the estimated cost of the time spent by nurses, only on those occasions when folded linen was not available in the linen stores, on the following activities:

collecting clean linen from storage in the laundry area and taking it to the wings; and
folding linen at the point of storage prior to taking it to the wings.

Collecting Linen from the Laundry and Taking it to the Wings

Each of the nurses at the Mt Gravatt Nursing Centre care for a number of specific residents. As part of the range of "nursing and personal care" tasks which they do for those residents, the nurses make their beds, as required (for example, after an episode of incontinence).
At the beginning of each shift during 1992/93 to 1996/97, the nurses filled up their trolleys from the linen stores located in the wings.
At Mt Gravatt Nursing Centre clean linen is kept in linen stores located in every second wing and those stores are regularly stocked up by the laundry staff. Because of a lack of storage space in the design of the Mt Gravatt Nursing Centre, and specifically in relation to those linen stores however, stocks of clean linen sometimes ran out and in such instances a nurse needed to go to the laundry to collect more supplies for his or her trolley.
Mt Gravatt Nursing Centre has a central hub with eight wings, like spokes of a wheel, which radiate from the central hub. The laundry is located in the central hub, so that because of the specific design of the centre, the laundry is central to all wings of the centre and was still the most efficient point from which to collect linen when a particular linen store was out of linen.

Folding linen in the laundry

Where there was insufficient folded linen in the linen stores, nurses at Mt Gravatt Nursing Centre folded the supply that they required when they collected clean linen from the laundry.
Nurses did not attend the laundry specifically to fold linen.
Validations on which the calculations were based
The calculations of the cost of the time spent by nurses on laundry duties were performed by the Department and were based upon visits to the Mt Gravatt Nursing Centre, as well as discussions conducted with various members of the nursing centre staff, during the validation of the periods 1988/89 to 1993/94 and 1994/95 to 1996/97.
The parties do not dispute the estimated cost of the time involved in the collection and folding of linen, as calculated by the Department.
When the members of the Tribunal analysed the evidence and considered the duties involved in collecting bed linen from the laundry and folding that linen it was difficult to see why the interests of patients would have been better served by these tasks being undertaken by NPC staff as distinct from SAM staff. There is no doubt that laundry services need to be co-ordinated with CAM services in the same way as food preparation services need to be co-ordinated with CAM services. Subject to an extraordinary event occurring e.g. the outbreak of an infectious disease or an individual patient needing specially prepared linen, the character of the laundry services considered in this review appear to be SAM services not requiring the services of nursing and personal care staff.
The Respondent argued that the fact that the task of folding linen is performed by a member of nursing and personal care staff does not make the task nursing and personal care. The character of the task does not change from the fact that nurses or assistants do the work. The task of collecting linen from the laundry and folding linen in the laundry was not an ordinary task performed by nursing and personal care staff who were in the process of making beds for patients. This task occurred only when the linen stores on the wings were empty and SAM staff were not available. The Respondent claims that the task could not become nursing and personal care simply because on some days the Applicants failed to roster a laundry worker to resupply the linen stores.

The Tribunal recognises that situations may arise from time to time in a nursing home when there is an excessive demand on bed linen and NPC staff may have to go to a laundry or elsewhere to collect extra linen. However, these episodic situations would not provide a basis for integrating these laundry services into CAM tasks.
In reaching this decision the Tribunal appreciates the reasons why the NPC staff undertook these laundry tasks at the Mount Gravatt Nursing Centre where there is a shortage of space for storing linen but consider that as a matter of public social policy the Respondent was correct in classifying the laundry duties as SAM tasks.

Collection and Folding of Clean Linen

As already noted Mt Gravatt Nursing Home has a centralised laundry which is located in the hub of the building with immediate access to the eight residential wings. Four of the eight wings have large linen cupboards from which nurses may obtain clean linen for bed making etc. These cupboards which are located in alternate wings are replenished with clean linen twice daily by laundry staff.
Clean linen is obtained by nurses from the cupboards and put on trolleys by nursing staff for the purposes of bed making etc. From time to time the trolleys have to be replenished by the nursing staff from the linen cupboard and sometimes the supply in the cupboard was exhausted.
It thereby became necessary for nursing staff to resort to clean linen in the laundry. Because of the physical location of the laundry that did not represent an undue detour by the nursing staff. In certain parts of the Centre there would be little if any difference in the time taken to go to the laundry by comparison with time taken to go to the nearest linen cupboard.
The important distinction is that linen in the linen cupboard would be folded whereas linen in the laundry may need to be folded by the nursing staff. As a practical matter we accept that the nursing staff would need to fold unfolded sheets etc before they took them to a resident's room.
We are not concerned with replenishment of linen cupboards. That function is and should be a SAM function. We are concerned with linen obtained from the laundry by nursing staff to meet the particular needs of residents. Incontinence cases are an obvious example of where additional bed linen will be required but such instances will also include other medical conditions. There is no dispute that bed making in these circumstances is properly regarded as a nursing and personal care function. The question is whether we should distinguish the circumstance of nursing staff obtaining linen from a linen cupboard in a wing from the circumstance of obtaining linen (often unfolded) from the conveniently located laundry. We do not see any basis in fact for making a distinction in the circumstances of this case. If we had to consider an offsite or distant laundry there may well be a different conclusion but the present case does not justify the distinction made by the Respondent. From a practical perspective we can see no difference between obtaining linen from a cupboard in a wing and obtaining linen (even if it needed to be folded) from the laundry if the linen is obtained for the purpose of meeting the needs of a particular resident (or residents) and not merely for the purpose of replenishing stocks of clean linen.
The Applicants submitted that the estimated cost of the time spent by NPC staff at Mt Gravatt Nursing Centre performing the "laundry" activities should be taken into consideration in the determination of the Notional Scales of Fees, on the following bases, that:

(a)those activities constitute the giving of nursing care within the meaning of part (a) of the definition of nursing and personal care in sub-principle 2(1) of the Principles; and/or
(b)those activities constitute activities associated with the provision of NPC in the strict sense, so that they fall within the definition of nursing and personal care in sub-principle 2(1) of the Principles; and or
(c)the time spent on those activities was time spent for the purpose of providing nursing and personal care in relation to the nursing home, within the meaning of sub-principle 8(2) of the Principles; and or
(d)the cost of the time spent performing those activities should be taken into account in the determination of the Notional Scales of Fees as "such other matters as the Secretary considers relevant', within the meaning of subsection 46D(3)(b) of the Act.

AIN/Clerk Role

Assistants to Nurses were employed at each of the TriCare Nursing Centres, with the exception of Stafford Heights Nursing Centre, with "split duties", that is they performed both nursing and personal care duties and clerical/administrative duties. Those employees were known as "AIN/Clerks".
For the purpose of claiming Commonwealth benefit for the periods 1988/89 to 1996/97, TriCare claimed an amount of expenditure for the AIN/Clerk. That amount was based upon an apportioned cost of employing the AIN/Clerk, which reflected the amount of their time which was spent for the purpose of providing nursing and personal care, as opposed to performing other duties.
The nursing and personal care duties performed by the AIN/Clerk were very flexible and varied on a daily basis. In general terms, they assisted residents with minor day-to-day activities which they were unable to complete themselves without assistance. Some residents were highly dependent on the AIN/Clerk for both practical and emotional support.

AIN/Clerk Time Sheeting Exercises ("AIN/Clerk Timesheets")

For the purpose of determining the proportion of the cost of each AIN/Clerk which should be claimed for each nursing centre, the AIN/Clerks at the TriCare Nursing Centres, with the exception of Kawana Waters Nursing Centre, recorded the amount of the time they spent on various types of activities for a 6 week period between November 1991 and April 1992.
As Kawana Waters Nursing Centre only opened on 12 April 1995, the cost of the AIN/Clerk claimed for that centre was based on the amount of time recorded in relation to various types of activities during the period 3 February to 14 February 1995.
In each accounting period, further timesheeting exercises were then done to confirm the proportions determined in the initial exercises .
On the AIN/Clerk Timesheets developed by TriCare, duties were coded under Items 1 to 18, with Items 1 to 5 being classified as "SAM" and Items 6 to 18 being classified as "CAM". Unclassified time was recorded as such and claimed as "CAM" or "SAM" depending on the nature of the duty performed
The total amount of time recorded under the following Items on the AIN/Clerk Timesheets for each of the TriCare Nursing Centres during the initial exercises (and confirmed by the subsequent timesheeting exercises each year), were used by TriCare to estimate the proportion of the AIN/Clerk's duties which could be claimed for the respective centres for each year –

Item 6 - organise resident transport
Item 7 - carrying out errands for residents;
Item 8 - assist residents with their postage
Item 9 - assist residents at meal times
Item 10 - file residents' medical records
Item 11 - assist residents with personal bank accounts, agency accounts, money and valuables;
Item 12 - orient new residents to the centre;
Item 13 - assist residents with menu selection;
Item 14 - rostering and payroll.
Item 15 - review resident classification index requirements and documentation;
Item 16 - compile residents' personal details on admission and as details change;
Item 17 - answer telephone calls that relate to residents, their relatives or nursing centre staff;
Item 18 - assist residents with payment of personal accounts;
unclassified time spent for the purpose of providing nursing and personal care.

On the basis of the results of the timesheeting exercises, TriCare claimed between 62.5% and 75.00% of the cost of the AIN/Clerk at each of the TriCare Nursing Centres should be taken into consideration for the purpose of the calculating its entitlement to Commonwealth benefit for the relevant years
The descriptions of the individual Items do generally but not completely describe the activities recorded under the Items.

Basis of reduction of AIN/Clerk costs accepted for the purpose of determining the Notional Scales of Fees

Mr Paterson and Ms Laut did not accept the proportions of the cost of the AIN/Clerk which TriCare claimed should be taken into consideration for the purpose of determining the amount of benefit to which it was entitled for the periods 1988/89 to 1996/97.
Instead, Mr Paterson and Ms Laut reduced the proportions of the cost of the AIN/Clerk accepted as items of expenditure to be taken into consideration in the calculation of the Notional Scales of Fees determined by them for the 1993/94 to 1996/97 accounting periods.
The reduced proportions of the cost of the AIN/Clerk accepted by Ms Laut for the purpose of her determinations were based upon the total amount of time recorded by the AIN/Clerks under the following items accepted by her as being "CAM" expenditure.

Items 6, 8, 9, 10 and 12 of the A 1 N/Clerk Timesheets for each centre;
50% of the time recorded under Item 7 of the AIN/Clerk Timesheets for each centre; and
50% of the time recorded on the AIN/Clerk Timesheets for each centre which was not allocated to any particular Item (ie. unclassified time) but was recorded as CAM.

The AIN/Clerk Timesheets cover 6 weeks of timesheeting for each of the centres (with the exception of Kawana Waters Nursing Centre) and were used by the officers who conducted the validations in order to estimate the cost of the AIN/Clerk to be used in the calculation of the notional scales of fees for 1993/94, 1994/95 (includes adjustments for the cost of the AIN/Clerk for 1988/89 to 1992/93), 1995/96 and 1996/97.
Using the total proportion of the AIN/Clerk's time recorded under those Items on the AIN/Clerk Timesheets for each centre during the initial exercises, Ms Laut calculated the estimated proportion of the AIN/Clerk's time which she accepted as expenditure to be taken into consideration in the calculation of the Notional Scales of Fees for those centres for the relevant periods.
Reduction of proportion of AIN/Clerk costs accepted for the purpose of determining the Notional Scales of Fees
On the basis of the calculations referred to above Ms Laut reduced the proportion of the cost of the AIN/Clerk claimed by TriCare, as set out below:-

Nursing Centre         Proportion of AIN/Clerk cost claimed by TriCare     Proportion of AIN/Clerk cost accepted by Ms Laut
Annerley        68.75%          16.84%
Bundaberg     62.50%          17.37%
Cypress Gardens       75.00%          30%
Huntingtower   75.00%          43.29%
Jindaiee         75.00%          28.03%
Kawana Waters        20.79%          28.13%
Labrador        75.00%          42.37%
Mermaid Beach        75.00%          32.76%
Mt Gravatt      62.50%          20.79%
Pimpama       62.50%          30.26%
Pt Vernon       62.50%          24.74%
Toowoomba    62.50%          29.61%

The Department accepted that the following activities constitute "nursing and personal care" within the meaning of the NHFP, so that the cost of the time spent on those activities was to be taken into consideration for the purpose of determining the Notional Scales of Fees for 1993/94 to 1996/97:-

organising ambulances, taxis and other transport for residents (item 6 on the AIN/Clerk Timesheets);
reading or explaining mail to residents; helping residents to address letters, check postcodes and purchase stamps; writing letters and Christmas cards for residents (item 8 on the AIN/Clerk Timesheets);
helping residents at meal times (item 9 on the AIN/Clerk Timesheets);
filing medical records (item 10 on the AIN/Clerk Timesheets);
helping new residents and their relatives to get orientated (item 12 on the AIN/Clerk Timesheets).

AIN Clerk duties

In this context it is necessary that we take account of the types of care provided to residents at the Mt Gravatt Nursing Centre. For this purpose the employees of the applicant's centres were surveyed to determine the character of their daily tasks on a per six minutes break up of the days work. Document T24 is a copy of the survey documents.
For the purposes of the survey the work tasks of the AIN/Clerks was categorised as follows:-
Duty Code Duty
Carry out Accounts Payable procedures -
(i)processing of accounts, making sure invoices and orders/delivery dockets agree;
(ii)obtaining D.O.N. signature;
(iii)coding all accounts;
(iv)payment of accounts under $200;
Carry out general Office Procedures, including
(i)petty cash, telephone, meal sales and photocopying money;
(ii)postage (other than resident mail);
(iii)maintaining the Nursing Centre cheque account.
Place orders for equipment, perishable and non-perishable supplies as approved by Director of Nursing.
Compile resident internal account records upon admission and as details change.
Answer telephone calls that do not relate to residents, their relatives or Nursing Centre staff.

(There is no dispute that the above categories 1-5 are infrastructure (SAM) functions). The Applicants claim that the balancing of the duties are correctly classified as care duties and are categorised as follows:

Assist the Director of Nursing with the following duties when required.

Duty Code Duty
("Items")

Organise resident transport.
Carry out errands for residents.
Assist residents with their postage.
Assist feeding residents at meal times.
File current resident medical records.
Assist residents with personal bank accounts, agency accounts, money and valuables.
Orientate new residents to the Nursing Centre
Assist residents with menu selection.
Rostering and payroll;
Review resident classification index requirements and documentation.
Compile residents' personal details upon admission and as details change – exclude internal account records.
Answer telephone calls that relate to residents, their relatives or Nursing Centre staff.
Assist residents with the payment of personal accounts.

The Respondent takes issue with items 7, 11, 13, 14, 15, 16, 17 and 18. As to category 7 the Respondent conceded that 50% of this category was personal care. The Applicants claimed 62.5% of the cost of the AIN/Clerk. Originally the Respondent allowed 20.79% of the cost but now concedes a 50/50 basis.

Duties Recorded under ITEM 7 of the AIN/Clerk Timesheets - Carrying Out Errands for Residents

The types of activities recorded under Item 7 of the AIN/Clerk Timesheets by the AIN/Clerk included the following duties performed for individual residents at their request:

going to the local shopping centre for personal items for residents, such as newspapers, magazines, cigarettes, cards, soft drinks and beer;
delivering messages to residents;
ordering newspapers for residents by telephone;
making appointments with medical specialists and podiatrists for residents by telephone;
assisting residents around the nursing centre;
helping residents to prepare shopping lists;
assisting residents at concerts and other activities held at the nursing centre;
looking up a telephone number and dialling it for a resident.

All TriCare Nursing Centres had a hairdresser that visited in some capacity, as residents were not generally of a state of health to enable them to travel to a hairdresser. The AIN/Clerk would liaise with the residents to determine who wanted an appointment with the hairdresser when they next visited the centre, and kept a list which they would then pass on to the hairdresser when they arrived.
Some of the activities recorded under Item 7 (being not less than 50% of those duties on a time-applied basis) constitute "nursing and personal care" within the meaning of the NHA.
Duties Recorded under ITEM 11 of the AIN/Clerk Timesheets - Assisting Residents with Personal Bank Accounts, Agency Accounts, Money and Valuables
It is important that residents of nursing homes maintain some degree of independence in the management of their financial affairs and the choice as to what residents do with their money is their own. As a matter of practice, residents at the TriCare Nursing Centres were encouraged to be responsible for making decisions regarding the safekeeping of their own money, documents and other valuables.
Many residents kept a small sum of money (approximately $20 to $100) and/or valuables in a safe located at the reception area of each of the TriCare Nursing Centres. The AIN/Clerk helped residents to manage their money and gave them money for personal shopping or phone calls from those funds as requested. Some resident's relatives replenished those funds as required and the AIN/Clerk kept records of the funds and valuables held in the safe.
If residents required change for the telephone the AIN/Clerk gave them the correct change from the nursing centres' petty cash float.
On occasions, the AIN/Clerk went to the bank to deposit money or pension cheques into savings accounts or carry out other transactions for residents, at their request.
Duties Recorded under ITEM 13 of the AIN/Clerk Timesheets - Assisting Residents with Menu Selection
The AIN/Clerk went around the wings each day and helped residents to make a selection for the evening meal from the menu. The AIN/Clerk consulted with individual residents and assisted them to make an appropriate choice of meal, which was commensurate with their individual dietary and nutritional needs, as well as their likes and dislikes. [in so doing, the resident was encouraged to exercise freedom of choice.]
In helping residents with menu-selection, the AIN/Clerk used their knowledge of the resident's needs and their ability to interpret dietary and nutritional requirements. The AIN/Clerk also referred to the Care Plan located on or near residents' beds where necessary.
Some residents had special needs and required particular assistance in order to communicate their preferences and dislikes in relation to the evening meal, due to their incapacities and disabilities.
Duties Recorded under ITEM 14 of the AIN/Clerk Timesheets - Rostering and Payroll
The AIN/Clerk, in conjunction with the Director of Nursing and as part of the Director of Nursing's administration team, helped to prepare the rosters. Responsibility for management of the roster remained with the Director of Nursing to ensure resident care and staffing hours were correctly allocated.
The duties recorded under Item 14 varied from centre to centre. At some centres the AIN/Clerk developed a roster based on a master roster with the guidance of the DON. They also wrote up the roster in a form to go up on the wall of the nursing centre, as this was prior to the introduction of computers in the centres. At other centres, the DON did all of the rostering duties.
Where the AIN/Clerk helped in the preparation of the rosters, they did so based upon their experience as to how the nursing centre operated, their knowledge of the needs of the residents and the skills and expertise of the staff available. For example, in a centre with wings, the resident needs in some wings may been more onerous than others. The AIN/Clerk, in conjunction with the Director of Nursing, would make adjustments to the roster based on such information, as well as feedback from the registered nurses, enrolled nurses and assistants to nurses.
The AIN/Clerk also took calls from any staff who were away, marked them absent on the roster and telephoned casual staff to organise a replacement. They then informed the Director of Nursing, entered the changes on the roster and sent the details to head office (where the pays were processed).
At the end of each fortnight the AIN/Clerk did a summary of the actual hours worked by each staff member and sent it to TriCare's head office for the preparation of pays.

(a)those activities constitute the giving of nursing care within the meaning of part (a) of the definition of NPC in sub-principle 2(1) of the Principles; and/or
(b)those activities constitute activities associated with the provision of NPC in the strict sense, such that they fall within the definition of NPC in sub-principle 2(1) of the Principles; and/or
(c)those activities constitute time spent for the purposes of providing NPC in relation to the nursing home, within the meaning of sub-principle 8(2) of the Principles; and/or
(d)the cost of the time spent performing those activities should be taken into account in the determination of the Notional Scales of Fees as "such other matters as the Secretary considers relevant", within the meaning of subs 46D(3)(b) of the Act.

The Respondent claims that activities in Item 14 are expressly excluded from the definition of personal care. Supervision of nursing and personal care staff by other nursing and personal care staff and managing the allocation of nursing and personal care funding are specifically provided for and therefore acceptable as within the definition. The Respondent submitted that unless the task is within a specific provision of the definition, it is clearly not nursing and personal care according to the ordinary meaning of the term.
Item 15 - review resident classification index requirements and documentation
The Applicants rely upon the facts set out at paragraphs 32.1 to 32.3 of the Statement of Agreed Facts. The cost of the time spent by the AIN/Clerk performing the review of Resident Classification Instruments (RCI) requirements and documentation, recorded under Item 15 of the AIN/Clerk Timesheets, should be taken into consideration in the determination of the Notional Scales of Fees, on the basis that:

(a)those activities constitute duties associated with classifying patients for the purposes of s 40AFA of the Act, within the meaning of part (f) of the definition of NPC in sub-principle 2(1) of the Principles; and/or
(b)those activities constitute activities associated with the provision NPC in the strict sense, so that they fall within the definition of NPC in sub-principle 2(1) of the Principles; and/or
(c)those activities constitute time spent for the purpose of providing NPC in relation to the nursing home, within the meaning of sub-principle 8(2) of the Principles; and/or
(d)the cost of the time spent performing those activities should be taken into account in the determination of the Notional Scales of Fees as "such other matters as the Secretary considers relevant", within the meaning of subs 46D(3)(b) of the Act.

For the purpose of the definition of NPC, the appropriate qualifications of the AIN/Clerk are those referred to in paragraph 31.5 of the Statement of Agreed Facts & Contentions. Essentially they are not formal nursing qualifications but knowledge based on experience.
During the exit interview held on 30 July 1997, in relation to the first validations, the Departmental officers demonstrated an incorrect understanding of the work recorded under Item 15 of the AIN/Clerk Timesheets and it is possible that such a misunderstanding has led to the adjustments in relation to this Item. The Department indicated that the activities recorded under that Item included clerical duties such as the "typing of care plans". The applicant says and we accept that this category did not include clerical duties such as typing of care plans and in fact care plans were never typed at all.
Item 16 - compile residents' personal details on admission and as details change
The Applicants rely upon the facts set out at paragraphs 33.1 to 33.4 of the Statement of Agreed Facts. The cost of the time spent by the AIN/Clerk performing the compilation of personal details on admission and as details changed, as recorded under Item 16 of the AIN/Clerk Timesheets, should be taken into consideration in the determination of the Notional Scales of Fees, on the basis that:

(a)those activities constitute the planning of "nursing care" within the meaning of part (a) of the definition of NPC in sub-principle 2(1) of the Principles; and/or
(b)those activities constitute duties associated with classifying patients for the purposes of s 40AFA of the Act, within the meaning of part (f) of the definition of NPC in sub-principle 2(1) of the Principles; and/or
(c)those activities constitute activities associated with the provision of NPC in the strict sense, so that they fall within the definition of NPC in sub-principle 2(1) of the Principles; and/or
(d)those activities constitute time spent for the purpose of providing NPC in relation to the nursing home, within the meaning of sub-principle 8(2) of the Principles; and/or
(d)the cost of the time spent performing those activities should be taken into account in the determination of the Notional Scales of Fees as "such other matters as the Secretary considers relevant", within the meaning of subs 46D(3)(b) of the Act.

It is TriCare's understanding that most nursing homes would undertake the activities referred to in paragraph 33 of the Statement of Agreed Facts at the time of admission and they would be accepted as a NPC duty, particularly where a registered nurse or AIN performed the task. It should also be noted that page 1-58 of "The Nursing Home Manual" identifies (T29) maintaining nursing and personal care records" as being a NPC duty.
The Respondent claims that activities in Item 15 – Review resident classification index requirements and documents and Item 16 – Compilation of personal details on admission and subsequently are both tasks which are essentially clerical in nature, though of assistance to those staff who perform tasks which are themselves nursing and personal care. The duty of classifying patients is separate from this task, Definition paragraph (f).
Item 17 - answer telephone calls that relate to residents, their relatives or nursing centre staff
The Applicants rely upon the facts set out at paragraphs 33.1 to 33.3 of the Statement of Agreed Facts. The cost of the time spent by the AIN/Clerk answering the telephone calls recorded under Item 17 of the AIN/Clerk Timesheets should be taken into consideration in the determination of the Notional Scales of Fees, for one or more of the following reasons depending upon the purpose of the call, that is because:-

(a)those activities constitute the giving of nursing care within the meaning of part (a) of the definition of NPC in sub-principle 2(1) of the Principles; and/or

(b) those activities constitute other care provided to residents personally to:

(i)assist the patient to carry out activities of daily living which the patient is unable to perform adequately without assistance; or
(ii)to meet a special need of the patient

within the meaning of part (b) of the definition of NPC in sub-principle 2(1) of the Principles; and/or
(c)those activities constitute activities associated with the provision of NPC in the strict sense, so that they fall within the definition of NPC in sub-principle 2(1) of the Principles; and/or
(d)the time spent on those activities was time spent for the purpose of providing NPC in relation to the nursing home, within the meaning of sub-principle 8(2) of the Principles; and/or
(e)the cost of the time spent performing those activities should be taken into account in the determination of the Notional Scales of Fees as "such other matters as the Secretary considers relevant", within the meaning of subs 46D(3)(b) of the Act.

At times when the AIN/Clerk was not on duty (for example, weekends) such telephone calls as those recorded under Item 17 would have been dealt with by other NPC staff within the nursing home. At such times, the Department accepts the duty as falling within the definition of NPC. The fact that it was the AIN/Clerk who took some of these calls during office hours does not change the nature of the task from being NPC to SAM. At page 1-61 of "The Nursing Home Manual" (T29), the Department identifies "discussing with the person and/or the person's family, the person's entry or possible entry to the nursing home" as a NPC duty. That entry is included as a task done by the in-charge member of the NPC staff.

Item 18 - assist residents with payment of personal accounts
The Applicants rely upon the facts set out at paragraphs 34.1 to 34.3 of the Statement of Agreed Fact. The function of assisting residents with the payment of personal accounts is required to be provided in order to promote residents' independence, as required by Outcome Standard 2.2 (referred to in Annexure "E" of the Applicants Statement of Facts and Contentions, so that residents are enabled and encouraged to maintain control of their financial affairs. As referred to in paragraph 51 of the Applicants' Statement of Facts & Contentions, looking after your own financial affairs is also an activity of daily living.
The Applicants submit that the cost of the time spent by the AIN/Clerk on the activities recorded under Item 18 on the AIN/Clerk Timesheets should be taken into consideration in the determination of the Notional Scales of Fees, on the basis that:

(a)those activities constitute the giving of nursing care within the meaning of part (a) of the definition of NPC in sub-principle 2(1) of the Principles; and/or

(b) those activities constitute other care provided to residents personally to:

(i)assist the patient to carry out activities of daily living which the patient is unable to perform adequately without assistance; or
(ii)to meet a special need of the patient

within the meaning of part (b) of the definition of NPC in sub-principle 2(1) of the Principles; and/or
(c)those activities constitute activities associated with the provision of NPC in the strict sense, so that they fall within the definition of NPC in sub-principle 2(1) of the Principles; and/or
(d)the time spent on those activities was time spent for the purpose of providing NPC in relation to the nursing home, within the meaning of sub-principle 8(2) of the Principles; and/or
(e)the cost of the time spent performing those activities should be taken into account in the determination of the Notional Scales of Fees as "such other matters as the Secretary considers relevant", within the meaning of subs 46D(3)(b) of the Act.

Finally, the Respondent claims that items 17 and 18, making telephone calls on behalf of residents and assisting residents with payment of personal accounts are beneficial, but not within the definition of nursing and personal care. The apportionment mechanism used for unclassified time, in this instance 50% apportioned to CAM, is reasonable given that not all of the tasks are nursing and personal care.
Unclassified time spent for the purpose of providing nursing and personal care
The Applicants relied on the facts set out at paragraphs 35.1 to 35.3 of Annexure A of the Statement of Agreed Facts. All of the cost of the time spent by the AIN/Clerk on the unclassified activities recorded on the AIN/Clerk timesheets as being CAM duties should be taken into consideration in the determination of the Notional Scale of Fees, on the following bases: that

(a)those activities constitute the giving of nursing care within the meaning of part (a) of the definition of NPC in sub-principle 2(1) of the Principles; and/or

(b) those activities constitute other care provided to residents personally to:

(i)assist the patient to carry out activities of daily living which the patient is unable to perform adequately without assistance; or
(ii)to meet a special need of the patient

within the meaning of part (b) of the definition of NPC in sub-principle 2(1) of the Principles; and/or
(c)those activities constitute activities associated with the provision of NPC in the strict sense, so that they fall within the definition of NPC in sub-principle 2(1) of the Principles; and/or
(d)the time spent on those activities was time spent for the purpose of providing NPC in relation to the nursing home, within the meaning of sub-principle 8(2) of the Principles; and/or
(e)the cost of the time spent performing those activities should be taken into account in the determination of the Notional Scales of Fees as "such other matters as the Secretary considers relevant", within the meaning of subs 46D(3)(b) of the Act.

CONSIDERATION

Errands carried out for residents are dependant upon the condition of the resident and the particular needs of the resident. Those factors determine the need and nature of the errands that are required, in the course of the resident's daily living. The errands are essentially personal to the resident and are part of the care provided by the applicant to the residents, depending on their need.
Similarly assistance with banking requirements of residents depends on individual circumstances. It may include accompanying a resident to the bank, or going to the bank on the resident's behalf. In any event the banking task was undertaken because of the particular need of the resident.
Menu selection refers to assistance provided to residents with selection of their meals for the following day. It is a non-binding process in that it is merely an indication of the residents' preferences for meals the next day. Assistance with menu selection necessarily takes into account the residents' health status and their capacity to make a reasoned selection from the menu. The assistance takes into account the dietary and nutritional requirements of the resident on a day by day basis. We are satisfied that the assistance requires an input in many cases which takes into account not only the whim of the resident but also the dietary needs of the resident.
Rostering duties, are, on the material before us, functions connected with the administration of the nursing centre and not connected in any relevant sense with the care of residents. We have taken into account the fact that rostering of staff was the responsibility of the Director of Nursing and was performed under her direction and with regards to the particular requirements.
We are satisfied that in performing activities of work the AIN/Clerk will very often require an empathy and understanding of a resident's personal care needs. That will be the case where the residents' personal circumstances are such that they are unable to undertake all the normal activities of daily living and also where particular residents have special needs. It does not follow, in our view, that assistance provided to residents must therefore be characterised as nursing and personal care.
These functions will be relevant to compiling residents' personal details upon admission and as details change. We accept that admission to a nursing home will often be an emotionally disturbing experience for the new resident and for the relatives and/or friends that may be involved in the process. The circumstances of the admission could well be difficult and become more difficult if not handled with care and compassion. In such circumstances the obtaining of personal details for the completion of the Centre's personal records will sometimes be difficult and complicated requiring exercise of discretion, compassion and care to facilitate the process, ensure proper records and without creating difficulty for the new resident. That much was clear from the material before the Tribunal and we accept that would be a CAM function. However it is not clear to us that the mere function of compiling personal details of residents, which is characterised as an administrative task, is such that it can be treated as nursing and personal care.
Similar considerations apply to the receipt of incoming telephone calls relevant to individual residents. We are not satisfied there is any basis in fact for distinguishing between the receipt of telephone calls for residents or about residents from the general run of telephone calls. Nor is there any basis for distinguishing between telephone calls for CAM staff and SAM staff. The cost of administering the telephone calls is a cost of carrying on a business as a nursing home, not a cost of providing nursing and personal care for residents albeit that some of the telephone calls will be in relation to nursing and personal care of residents. Time spent on such calls by nursing staff will be part of nursing and personal care of residents but that is not embraced by the category "Answer telephone calls that relate to residents, their relatives or Nursing Centre Staff". We are satisfied that is a function of carrying on business as a nursing home rather than part of the function of nursing and personal care of residents of the home. We have come to that view after considering the material before the Tribunal and in particular the evidence of Michelle White. In her statement of evidence she described the telephone calls as follows:
"…inquiries from their (residents') relatives, doctors ring in and making different appointments for them (residents)…. Relatives might ring to discuss something about a resident's care and the AIN/Clerk might need to direct them to nursing staff about that."
She went on to say that referral to nursing staff would depend on what the enquiry was seeking. It if was anything medical then the AIN/Clerk could not answer it but there were many other questions they could answer. Sometimes the AIN/Clerk provided phone access to residents who did not have their own phone and sometimes assisted residents with the making of a phone call because the resident was unable to communicate effectively on the phone.
The AIN/Clerk assisted a small number of residents with payment of personal accounts. This occurred in a minority of cases mainly because many residents' relatives made the necessary arrangements for paying such accounts. Assistance was provided with a view to encouraging residents to look after their own financial affairs. Such assistance was provided on a one for one basis. As was made clear the character of the assistance was such that it was usually provided by relatives. Clearly payment of personal accounts can be accepted as a function of daily living in the sense that many members of the community at large undertake those functions. Others rely on other family members, friends, employees or professional persons to attend to such matters for them. We are not satisfied that paying personal accounts can be characterised as nursing and personal care of a resident.

Discretion under Section 46D(3)

The Applicants contend that if the estimated cost of the time spent by nursing and personal care staff on the plating, laundry and AIN/Clerk activities can be properly disallowed for the purpose of determining the loadings to be applied in the calculation of the Notional Scales of Fees pursuant to the Principles, the Applicants would then submit that those amounts should be taken into consideration pursuant to subsection 46D(3)(a) or subsection 46D(3)(b), on the following bases, that:-

(a)the purpose of calculating "AE" for the purpose of sub-principle 32(26)(k)(i), is only to determine whether a negative loading should be applied in the determination of the notional scales of fees;
(b)the sole objective of loadings is to ensure that CAM funding is used for the provision of nursing and personal care to residents and that certain standards of care are provided to residents;
(c)the quality of care provided to residents in the TriCare Nursing Centres during the relevant periods was very high;
(d)the work practices adopted at the TriCare Nursing Centres were the most efficient and economical manner of providing care to the residents in the relevant nursing homes;

(e)the work practices adopted at the TriCare Nursing Centres were directed towards the provision of quality of care of a holistic nature and a team approach to the provision of that care;
(f)in relation to the laundry activities, the practices adopted were necessitated by the layout of the home and the laundry was still an efficient place to obtain clean linen, being central to all wings of the centre;
(g)there is no evidence that the use of nursing and personal care staff at the TriCare Nursing Centres for the activities in question was excessive or that the standard of care provided to residents suffered in any regard;
(h)there is no evidence that the Applicants benefited in any regard by the adoption of the work practices subject to review; and

the TriCare Nursing Centres differ from other nursing homes in Queensland in that it owns a large number of nursing homes, hostels and retirement villages, so that it has a head office where a lot of the usual clerical and other administrative duties which would usually be carried on site at other nursing homes are performed.

These reasons, in the Respondent's view, do not provide a good reason for paying to this particular proprietor more than the statutory scheme provided for, or for permitting the proprietor to retain what it had wrongly claimed was its entitlement under the scheme.
The Respondent's view of the issue of discretion under s 46D(3) is that there are at least two flaws in the Applicant's contention. Firstly, it would be inconsistent with the Act. In particular, it would be inconsistent with s 46D itself, which goes on to provide, by subs (5) that:
"(5) In determining the notional scale of fees, the Secretary must comply with the relevant principles formulated under subsection 40AA(7)."
Further, the discretion given to the Secretary to "take into account such other things as the Secretary considers relevant" is not a discretion to ignore the requirement of subs (5) that the relevant principles formulated under s.40AA(7) be complied with. In other words, the Respondent submits it is not a discretion to bypass the Act and the Principles.
The Respondent further submitted that when the essential structure of this funding regime is kept in mind, with its separate provision for infrastructure expenditure and nursing and personal care expenditure, it is seen that the Secretary must fix the notional scale of fees consistently with that fundamental structure. Clearly, adherence to that structure, to other provisions of the Act and to the Principles is consistent with the requirement of s 46D(3)(a) that the Secretary take into account the actual expenditure incurred by the proprietor in the relevant nursing home during the relevant period. The purpose of s 46D(3)(b) is to make it clear that the Secretary is not limited to the proprietor's actual expenditure. For example, as is now expressed in Principle 9(1) the Secretary would be entitled to consider the facts and circumstances indicating whether the actual expenditure was unreasonable or excessive, especially where it was not made at arms length but was made to a related entity of the proprietor.
The Respondent insisted upon an examination of the essential structure of the scheme which proceeded on a premise that there should be a fixed allowance for infrastructure, but a variable allowance for nursing and personal care. The Respondent submitted that far from discouraging efficiency and quality in nursing homes, the structure recognised the need for flexibility, so far as nursing and personal care was concerned, to ensure that proprietors were properly paid for actual nursing and personal care provided at the nursing home.
Further, it is clearly desirable and inherently fair that the funding regime be consistently administered. It would be quite unfair to exercise this alleged discretionary power in an ad hoc way in favour of one proprietor where others, many of whom would be business competitors of that proprietor, would be treated differently.
Section 46D(3) of the Act provides that in determining the notional scale of fees the Secretary must take into account the actual expenditure incurred by the proprietor in respect of the provision of that nursing home care to approved nursing home patients in the nursing home during he accounting period. The subsection also provides that the Secretary may take into account such other things as the Secretary considers relevant.
By virtue of Section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal may exercise all the powers and discretions, that are conferred by the Act on the Secretary, for purpose of deciding the application for review.
While the Applicants submit that even if the cost of the plating, laundry and AIN/Clerk adjustments are not required to be taken into account in the determination of the Notional Scale of Fees pursuant to the Principles, the Secretary and on review the Minister's delegate, must take those costs into account pursuant to subsection 46D(3)(a)
Principle 32(26)K of the 1989 Principles sets out how to determine factor AE (in determining adjusted actual expenditure by determining the expenditure incurred for the nursing and personal care staff actually utilised by the nursing home to provide nursing and personal care in the financial year. The Principles to be applied in determining loadings under Principle 32 are coupled in their detail and we need not pursue them here.
We accept that the intent of Principle 32 is that CAM funding is used for NPC of residents to an accepted standard. However the fact of NPC being provided to a level of care above the accepted standard does not hereby increase the claim to be allowed for CAM funding and does seek to ensure that CAM funding is applied to the provision of NPC to residents.
We also accept that the standards of care in the applicants nursing homes was of a high order directed toward the provision of quality care of a holistic nature in an efficient and economical system of care.
On the other side of the coin while we accept that the applicants provide a high level of quality care we have not formed the impression that the care provided was excessive to the needs of the residents.
It was put to use, and we accept that there is nothing to the contrary, that the applicants are part of a large organisation with centralised administration hereby reducing the amount of administration that might otherwise have occurred at the individual sites.

Nursing and Personal Care

The phrase has a defined meaning as set out at paragraph (?) above.
Part (a) of the definition of nursing and personal care in sub-principle 2(1) includes the following within the meaning of nursing and personal care:-
"the planning or giving of nursing are to an approved patient by nursing and personal care staff".
There is no definition of "nursing care" in the Principles or the Act, so that reference must be made to the usual meaning of the term and any meaning attributed to it in accordance with the common law. The dictionary meaning of "nursing" have a wide meaning. The Shorter Oxford Dictionary defines "nurse" to include one who takes care of, looks after, or advises another" and to "wait upon, attend to (a person is ill)".
Wallbridge -v- Dorset County Council (1954) Ch 659 found that "nursing care" is not a term of art and should not be confined to "sick nursing". In Pennant Hills Restaurants Pty Ltd -v- Barrell Insurances Pty Ltd [1977] 2 NSWLR 827, Mahoney J of the Court of Appeal Division of the NSW Supreme Court said that the term "nursing care" can comprehend services of a kind which in a healthy person could be seen as ordinary housekeeping. The High Court further considered that case in Pennant Hills Restaurants Pty Ltd -v- Barrell Insurances Pty Ltd [1979-1980] 145 CLR 625, (where Mason J with whom Gibbs and Nilson JJ agreed):
"In a suitable context "nursing" may denote a wider range of activities than those undertaken by a nurse in caring for a patient who suffers from illness or injury ..."

In the provision of care and maintenance for the aged and incapacitated in a non-hospital environment, the analysis of Stephen J of the High Court in the Pennant Hills case also provides some guidance. His Honour said:-
"'Nursing' like the verb 'to nurse' may be used with various shades of meaning. All appear to involve the attending to the personal needs of another who lacks the capacity to care for himself whether because of illness, extreme age or youth, or other physical or mental handicap. While often applied to the care of the young and the sick, "nursing" is clearly not to be so confined,. it includes the care of the healthy but incapacitated Public Trustee -v- Mackay (1969) NZLR 995 at 1006 per Turner J and Wallbridge -v- Dorset County Council (1954) Ch. 1 659 at 667-668). Nor could it be confined by reference to any particular training or qualifications possessed by the person who undertakes it. It is, however, confined to caring for the person of the recipient of such care and for his immediate surroundings. This may itself involve activities carried on at some distance from him such as food preparation and laundering. Its extent in any given case would be determined by the extent of incapacity. For example, for the bedridden, it would involve washing, seating, dressing and undressing him and caring for the state of his immediate surroundings, his bed and bedroom and all that is necessary for those purposes, including food preparation and laundering clothes."
His Honour went on to explain that the circumstances of the person being cared for may be such as to extend the care required both as to the person and their immediate surroundings, as well as care provided to meet the personal needs of that person. The range of activities covered by the term will depend upon the needs of the recipient and the circumstances in which the care is provided.
As to the meaning of "nursing care" in the context of the Act, the Applicant submitted that in the Pennant Hills case, the members of the High Court stressed the importance of the context of the legislation in which the term "nursing care" is used to the interpretation to be given to it. In relation to the Principles the only restrictions on the meaning of "nursing care" are that:-
(a) the care is to be provided by NPC staff;

(b) the care is to be provided in an approved nursing home; and

(c)the care is to be provided to patients who have been approved as having a continuing need for nursing care, by reason of infirmity or illness, disease, incapacity or disability.

The Applicants argued that there was no need for nursing care to be provided to residents personally, relying on Stephen J's comment that "nursing care" may involve activities carried on at some distance from the recipient, such as food preparation and laundering. This interpretation in relation to part (a) of the definition of nursing and personal care is arguably supported by the comments of Branson J in Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 at 378-379 ("the Allora case), where her Honour said.-
"it is necessary to determine whether the word "personally" in par (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 par (b) is so read, it becomes clear that the drafter of pars (a) and (b) has drawn a distinction between the giving of care to a patient (par (a)) or the giving of care to a patient personally (par (b)) again. Significantly,... there is no express requirement in par (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 par (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 was in the meaning of the definition is thus a question of fact to be determined in the light of the ordinary meaning of the expression of care".
The range of activities which constitute "nursing care" within the meaning of part (b) of the definition of nursing and personal care are restricted to some extent by the work practices adopted in individual nursing homes. For example, the preparation of meals and laundering of bulk linen is carried out by non- nursing and personal care staff, so that the provision of those services would not fall within the definition of nursing and personal care.
The Respondent submitted that "nursing care" must be considered in the context of the Act, that is, a legislative scheme which distinguishes nursing care from infrastructure costs. In different contexts, the preparation of a meal for a patient might be regarded for different legal purposes as nursing care. For example, the preparation of a meal by a nurse attending a patient in his or her own home might, according to the particular statutory context, be described as nursing care.
The Applicant submitted that considerations as to whether activities amount to the planning or giving of "nursing care" include the following:
(a) the purpose for which the activity is performed;

(b)the circumstances in which it is carried out (including the set up of a particular nursing home, work practices and the manner in which care and services are provided to residents); and
(d)the needs of the persons to whom the care is provided.

In making any determination as to whether a particular activity constitutes the planning or giving of "nursing care", the Secretary (and the Department in carrying out its validations), is therefore required to have regard to those factors, in relation to the nursing home under consideration.
We have had considerable difficulty with the characterisation of the duties of the AIN/Clerk. We have come to the view that it cannot be an enact science and will always require an arbitrary assessment taking into account the levels of care for residents involved in the particular function. That will vary from resident to resident and correct characterisation would require an extraordinarily complex assessment which simply could not be justified.
After considering the material before us and relying on the test enunciated by Branson J in Seventh Mingcourt set out above we have classified the duties of the AIN/Clerk as follows:-
There is no dispute that duties 1 – 5 are correctly classified as S A M duties).
Item Duty Classification
Organise resident transport CAM
Carry out errands for residents SAM/CAM
Assist residents with their postage CAM
Assist feeding residents at meal times CAM
File current resident medical records CAM
Assist residents with personal bank accounts, agency accounts, money and valuables SAM
Orientate new residents to the Nursing Centre CAM
Assist residents with menu selection CAM
Rostering and payroll SAM
Review resident classification index requirements and documentation SAM
Compile residents' personal details upon admission and as details change – exclude internal account records. SAM C/f para 180
Answer telephone calls that relate to residents, their relative or Nursing Centre staff SAM
Assist residents with the payment of personal accounts. SAM
Uncategorised duties CAM/SAM 75/25

We have categorised Items as CAM because we understood the Respondent to have accepted that classification).
We are not satisfied that there are any black and white rules for determining what is "nursing care", especially when it must be considered in conjunction with "personal care". Each case will need to be decided on its particular facts but we are satisfied, as a generalisation, that nursing staff providing care to resident, whatever the nature of that care, can be accepted as providing NPC. That will be the case if the nursing staff member is remaking a resident's bed or plating the resident's meal. Everything necessary to perform that task undertaking by nursing staff should be accepted as NPC.
In particular we are satisfied that nursing staff who attend at the Mt Gravatt Nursing Centre laundry do obtain fresh linen (whether folded or unfolded) for the purpose of re-making a resident's bed will be performing NPC throughout that process. We would not accept, if it was in issue that nursing staff who attended the laundry for the purpose of resupplying the linen cupboards in the wings were performing NPC. In the latter circumstance the care of residents is too remote from the task so that there is effectively only a remote and irrelevant quality of residential care.
Similarly plating of meals by nursing staff is, in our view, only NPC when the plating is performed for the individual resident. Plating for residents generally without immediate regard for the individual resident does not in our view constitute NPC.
Principle 8(2) required this result. Time spent by nursing staff in performing ancillary duties such as folding linen in the laundry for the purpose of resupply of linen cupboards does not have the necessary characteristics of care for the residents. It relates to the day to day functioning of the nursing home and is therefore in our view, a SAM function.
For these reasons we will set aside the decisions under review and remit the matters to the respondent for reconsideration with a direction to give effect to these reasons for decision.
Before concluding we would like to note that because the appointment of Ms Anne Brennan expired on 30 June 2001, she has been unable to participate in this decision. She did however provide valuable expertise to the making of the decision and we wish to acknowledge that.
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of Justice D F O'Connor, President and Mr K L Beddoe, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20-22 March 2000
Date of Decision  16 July 2001
For the Applicant  Mr Hack, SC
For the Respondent                 Mr North, SC
  Mr Eliadis, Counsel