XZJY and National Disability Insurance Agency
[2021] AATA 5459
•15 December 2021
XZJY and National Disability Insurance Agency [2021] AATA 5459 (15 December 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2020/5985
Re:XZJY
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Deputy President J W Constance
Date:15 December 2021
Place:Sydney
The reviewable decision made 25 May 2020 is set aside and in substitution it is decided that the Agency fund the provision of support for the Applicant by a Registered Nurse for 4.1 hours per day, seven days per week from 15 October 2019.
................................[SGD]...................................
Deputy President J W ConstanceCatchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – funding for Registered Nurse – consideration of sections 33 and 34 – whether supports represent value for money – sustainability of the Scheme – whether the support will be or is likely to be effective and beneficial for the participant having regard to current good practice – decision set aside and substituted
Legislation
National Disability Insurance Scheme Act 2013 (Cth), ss 33, 34
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Milburn and National Disability Insurance Agency [2018] AATA 4928
REASONS FOR DECISION
Deputy President J W Constance
15 December 2021
Part 1: Introduction – Outline of Scheme, Legislation and Relevant Principles……[3]
Part 2: Evidence and Findings of Fact…………………………………………………….[13]
Part 3: Reasoning………………………………….………………………………………….[32]
Part 4: Conclusion.……………………………………………………………………………[49]
PART 1Introduction, Outline of Scheme, Legislation and Relevant Principles
1.1. introduction
There is no dispute that the Applicant, Ms A, requires the care of a Registered Nurse and/or Disability Support Workers 24 hours per day, seven days per week. The issue between Ms A and the Respondent, the National Disability Insurance Agency (the Agency), is how that care should be provided.
The Agency argued very strongly that I should find that it is appropriate that the care Ms A needs should be delivered in a manner described as the Delegated Model of Care. However, in considering the care which should be provided to Ms A, it is important to keep in mind that the real issue for consideration is what is the reasonable and necessary support to be provided to Ms A as an individual, not which one of two competing so-called, models of care is appropriate. My decision in this matter relates only to the needs of Ms A taking into account her disabilities, her health conditions and the environment in which she lives. It should not be read as an endorsement of a particular model of care in other circumstances.
Ms A receives funding for her care under the National Disability Insurance Scheme (the Scheme). The Scheme was established by the National Disability Insurance Scheme Act 2013 (Cth) (the Act) and is administered by the Agency.
Ms A is 40 years old. She was born with complex permanent disabilities and suffers from chronic health conditions. Until 2016 Ms A was cared for by her parents, Mr and Mrs A. Since then, she has lived in shared accommodation in regional Australia and visits her parents on a regular basis. Mr A is her plan nominee under the Scheme.
In October 2019 the Chief Executive Officer of the Agency approved a new plan for Ms A which included support by a Registered Nurse. For all her life Ms A has received such support, initially by her mother, who is a Registered Nurse, and then by Registered Nurses employed at the shared accommodation.
Acting on behalf of Ms A, Mr A sought an internal review of the decision made by the Agency approving the support by a Registered Nurse. Ms A requested six hours of Registered Nurse support per day.
In accordance with the Act an internal review was conducted and on 25 May 2020 it was decided the Agency would fund, relevantly:
·547 hours of Delivery Of Health Supports by a Clinical Nurse over 3 months, i.e. six hours per day; and
·24 hours of Delivery Of Health Supports by a Clinical Nurse over the following nine months.[1]
I will refer to this decision as the reviewable decision.
[1] Exhibit JT1 at 13-14.
The reasoning giving rise to the reviewable decision is that support of six hours per day is necessary to allow a Registered Nurse time, over a period of three months, to train Disability Support Workers to provide additional care for Ms A. After this training the support provided by a Registered Nurse would be for a total of 24 hours over the ensuing nine months.
Ms A has asked the Tribunal to review the reviewable decision. She is seeking support by a Registered Nurse for four hours per day, seven days per week.
Ms A’s application was heard together with applications by two other residents of the shared accommodation who were also seeking additional support by a Registered Nurse. While many of the applicable principles are the same, the needs of the Applicants vary. For this reason, I intend to publish separate reasons for my decision in each application, although significant parts of these reasons will be reproduced in the other applications.
For the reasons which follow the reviewable decision will be set aside. In substitution it will be decided that the Agency fund the provision of support for Ms A by a Registered Nurse for 4.1 hours per day, seven days per week.
1.2. outline of scheme, legislation and relevant principles
I acknowledge submissions of the Solicitor for the Agency in an earlier application to the Tribunal[2] setting out the various provisions of the Act, Rules and Guidelines which provide the framework for determining the matters in dispute in this application. I am grateful for the assistance of those submissions, which form the basis of the content of this section.
[2] See Milburn and National Disability Insurance Agency [2018] AATA 4928.
Preparation of a participant’s plan
The Chief Executive Officer of the Agency is required to facilitate the preparation of a participant’s plan.[3] The plan must include:
·the participant’s statement of goals and aspirations; and
·a statement of participant supports prepared with the participant and approved by the Chief Executive Officer.[4]
It is to be noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the Chief Executive Officer. The statement of participant supports must specify the reasonable and necessary supports (if any) that will be funded under the Scheme.
[3] Section 32 of the Act.
[4] Section 33 of the Act.
The provisions of the Act giving the participant alone the right to state his or her goals and aspirations and at the same time requiring the Chief Executive Officer to work with the participant to prepare the statement of supports, and then to approve those supports which will be funded, “strikes a balance between two of the Act’s objects:
(a)the need to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports, and
(b)the facilitation of a nationally consistent approach to the access to, and planning and funding of, supports for people with disability.”[5]
[5] Milburn and National Disability Insurance Agency [2018] AATA 4928 at [11]; the objects of the Act are set out in section 3 of the Act.
Implementing a plan
The plan comes into effect once the Chief Executive Officer has received the participant’s statement of goals and aspirations and approved the statement of participant’s supports.[6]
[6] Subsection 37(1) of the Act.
Money received by or on behalf of a participant must be spent in accordance with the participant’s plan.[7] An amount paid under the Scheme in respect of reasonable and necessary supports funded in accordance with a participant’s plan is referred to in the Act as the “NDIS amount.”[8]
[7] Subsection 46(1) of the Act.
[8] Section 9 of the Act.
The objects of the Act
The objects of the Act set out in section 3 make particular reference to the purpose of providing reasonable and necessary supports. Subsection 3(1) provides, in part:
The objects of this Act are to:
…
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability;
…
The objects are to be achieved by “adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability.”[9] In giving effect to the objects of the Act, regard is to be had to, among other things, “the need to ensure the financial sustainability” of the Scheme and “the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”[10]
[9] Paragraph 3(2)(b) of the Act.
[10] Subsection 3(3) of the Act.
General principles guiding action under the Act
The determination of the reasonable and necessary supports to be funded under the Scheme is a vitally important function of the Agency. Section 4 provides a set of principles to guide decision-making in respect of this and other functions under the Act.
The following principles are of particular relevance in making decisions as to reasonable and necessary supports:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
…
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
…
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
…
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
…
Subsection 4(17) further references the need to ensure the financial sustainability of the Scheme. It provides:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial stability of the National Disability Insurance Scheme.
Although the phrase “reasonable and necessary supports” is not defined in the Act, its meaning can be determined with the assistance of the provisions referred to above. As the Federal Court said in McGarrigle v National Disability Insurance Agency:
Section 13 expressly indicates that a “support” might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also “support” - whether by way of services of activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding. [Emphasis added].
…
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.[11] [Emphasis added].
[11] [2017] FCA 308 at [88] and [91].
Functions of the Agency
Section 118 of the Act outlines the functions of the Agency, which include supporting the independence, and social and economic participation, of people with disability, enabling them to exercise choice and control in the delivery of their supports, and ensuring that their preferences are respected and given appropriate priority. This section also provides that the Agency is to promote the provision of high quality and innovative supports which maximise independent lifestyles and inclusion in the community of people with disability.
By paragraph 118(1)(b), the Agency has a further function of managing the financial sustainability of the Scheme.
Principles relating to the participation of people with disability
As part of Chapter 3 - Participants and their plans - subsections 17A(1) and (3) provide:
(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
…
(3) The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
Matters which must be taken into account in deciding whether or not to approve a statement of supports
Subsection 33(5) provides:
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant's statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
Matters of which the decision-maker must be satisfied in relation to the funding or provision of supports
Subsection 34(1) provides:
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
It is to be noted that all these conditions must be satisfied in relation to each support.
In McGarrigle v National Disability Insurance Agency the Federal Court said:
Therefore, what is entered in a plan as a support becomes a determinative factor in the administration of the scheme. As the respondent submitted, by s 33(3), supports may be generally described or may be specifically identified. Either way, the function being performed on review by the Tribunal is to approve, vary or modify the supports as set out in a participant plan. In performing that function, the Tribunal must have regard to the matters set out in s 33(5), and form its satisfaction in accordance with s 34.[12]
[12] [2017] FCA 308 at [85].
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Sections 35 and 209 of the Act provide for the making of rules in connection with the funding or provision of reasonable and necessary, as well as general, supports. I will refer to these rules as the “Supports Rules”. As a Legislative Instrument, the Supports Rules bind the Tribunal in making decisions under the Act. Part 5 of the Supports Rules sets out general criteria for supports and supports that will not be funded or provided.
The Rules include:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3 The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support would be provided;
(b) a support that consists of income replacement.
Part 3 of the Supports Rules provides for matters to be considered in deciding whether a requested support represents value for money. The relevant provisions of the Rules will be set out later in these reasons.
The Schedule to the Rules sets out the considerations relevant to determining whether supports are most appropriately funded through the Scheme:
7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Further, in McGarrigle v National Disability Insurance Agency, the Federal Court said, in part:
[The Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports… It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.[13]
PART 2
EVIDENCE AND FINDINGS OF FACT
[13] [2017] FCA 308 at [43].
2.1 Evidence of Mrs A, Ms A’s mother
Mrs A provided a statement dated 27 February 2021[14] and gave evidence at the hearing.
[14] Exhibit JT1 at 259.
Mrs A is the mother of Ms A. Ms A was born in 1981 with Cornelia de Lange syndrome. She is now 40 years old.
Mrs A and Mr A, Ms A’s father, were Ms A’s full-time carers from her birth until 2016. Mrs A has been a Registered Nurse under the Nursing and Midwifery Board of Australia since 1976. She holds approval by the Australian Health Providers Regulatory Advisor.
Mrs A stated, in part:
As a result of [Ms A’s] condition, she is prone to:
[personal information redacted].[15]
[15] Exhibit JT1 at 260-261.
Mrs A provided further information as to the difficulties experienced by her daughter resulting from her disabilities. They are included in the evidence of Ms M later in these reasons. Mrs A said that Ms A is unco-operative with some of the procedures necessary to treat her conditions.
Mrs A continued:
The most important time is the constant monitoring and supervision that [Ms A] requires. Constant and vigilant monitoring of [Ms A] and any symptom can keep her well and her care needs in control. However, I have seen that she can quickly deteriorate becoming very ill if even the smallest thing gets missed.[16]
[16] Exhibit JT1 at 263.
In 2016 a place became available for Ms A at the shared accommodation. As she had spent time there in respite care and was happy in the accommodation, her parents decided to have Ms A take the position. They visit her and on occasions care for her at home.
Mrs A is familiar with the care her daughter needs and would not have allowed her to move to the shared accommodation had there not been a Registered Nurse on the staff.
Mrs A impressed me as an honest witness and I accept her evidence.
2.2 Evidence of Mr A, Ms A’s father
Mr A is Ms A’s father. He provided a statement dated 27 February 2021[17] and gave evidence at the hearing.
[17] Exhibit JT1 at 269.
Mr A is Ms A’s plan nominee under the Scheme. He makes decisions for Ms A in consultation with Mrs A and liaises with Ms A’s service provider which operates the shared accommodation.
In his statement, Mr A confirmed many aspects of Ms A’s care when she was living with him and his wife.
Mr A impressed me as an honest witness and I accept his evidence.
2.3 Evidence of Ms M, Registered Nurse
Ms M is the Care Service Manager at the shared accommodation. She provided statements dated 1 December 2020[18] and 3 March 2021[19] and gave evidence at the hearing.
[18] Exhibit JT1 at 234.
[19] Exhibit JT1 at 294.
For almost 44 years Ms M has been a Registered Nurse under the Nursing and Midwifery Board of Australia and holds approval by the Australian Health Providers Regulatory Advisor.
Ms M’s experience and other qualifications include:
·qualifications in Generalist Nursing, Paediatric Nursing and Midwifery;
·College of Nursing qualifications in Women’s Health, Advanced Midwifery and Management;
·Bachelor of Health, University of Western Sydney;
·employment in NSW Health management, General Practice, Aged Care and the Disability Sector;
·extensive experience in clinical governance and health management;
·Training Facilitator for Disability Support Workers engaged under TAFE traineeships and placed at the shared accommodation.
Ms M has been employed full-time as the Care Service Manager (the most senior nursing position) at the shared accommodation since early 2017.
Ms M described the shared accommodation and her role:
[The shared accommodation] is a small facility that provides respite and accommodation to people with profound physical disabilities with complex needs. [The shared accommodation] has the capacity for six people in the permanent accommodation and six people in the respite facility. [The shared accommodation] is a charity that employs a part-time CEO who works 2 days a week and a Financial Manager who works 2 days a week.
My general duties in this role include but are not limited to:
(a)Providing leadership and direction in client care planning and management within [the shared accommodation].
(b)Applying work practices that comply with relevant legislation and [the shared accommodation’s] Policies and Procedures.
(c)Liaising with [the shared accommodation] via ……. the CEO, for the clinical governance that applies to provision of care in the delivery of services to [the shared accommodation] residents.
(d)Attend to all the responsibilities of the Registered Nurse during the day and I manage other registered nurses in those responsibilities across all three shifts. When I refer to all three shifts, I am referring the 24-hour period across a full day which is divided into three 8 hour shifts. Across each shift, a Registered Nurse is rostered to provide Registered Nursing care to each resident according to their individual needs.
I have known [Ms A], the applicant in these proceedings …….. since …….. February 2017. [Ms A] was already living at [the shared accommodation] when I commenced my employment.
I prepare and undertake [Ms A’s] care plan and audit her care in terms of clinical governance. I liaise on her behalf with medical staff and allied health and I maintain communication with [Ms A’s] parents.[20]
[20] Exhibit JT1 at 234-235.
The following description of Ms A’s disabilities and the effect they have on her health and wellbeing was provided by Ms M:
[personal information redacted].[21]
[21] Exhibit JT1 at 237-238.
In her statement Ms M set out the tasks required of a Registered Nurse to support Ms A. In relation to the performance of these tasks Ms M stated:
In carrying out each of the above tasks, registered nurses use nursing processes to make assessments to arrives at a nursing diagnosis.
The only way to obtain the required qualifications to carry out these tasks is to undertake a tertiary education program to become a qualified registered nurse.
[The shared accommodation] is not registered to provide training or qualifications to anyone to become a registered nurse nor to undertake tasks that registered nurses are qualified by AHPRA to do.
DSW and CSW do not have these qualifications and skills. For example, DSW are not trained in human anatomy, movements and joint articulation whereas Registered Nurses are.
Accordingly, none of these tasks can be delegated to DSW or CSW, nor can they be taught to DSW or CSW by a registered nurse. They need to be performed each day and require nursing skills in diagnosis, treatment, and administration of medication.[22]
[22] Exhibit JT1 at 244.
In the opinion of Ms M, Ms A requires six hours of support from a Registered Nurse each day.[23]
[23] Exhibit JT1 at 246.
In her statement, Ms M set out in detail Ms A’s care protocol from which she calculated the average hours of Registered Nurse supports required. At paragraph 45 of her statement Ms M provided a detailed description of the specific tasks that directly support Ms A’s daily living that fall within each numbered Registered Nurse protocol. These details were not challenged by the Agency.
Support Workers play an essential role in Ms A’s life and care. The Registered Nurses have taught them her personal care needs, safe manual handling of food preparations and feeding, safe community participation and environmental safety and cleaning standards. Disability Support Workers are supported in simple wound care and have first aid qualifications. “However, the genetic conditions that [Ms A] was born with, and the resulting impairments, mean that she requires assistance beyond the scope of even the most well-trained support workers to maintain well-being and comfort and health safety.” [24]
[24] Exhibit JT1 at 246.
Ms M impressed me as an honest witness and I accept her evidence. She is highly qualified with first-hand experience in caring for Ms A for almost five years.
2.4 Evidence of Ms P, Disability Support Worker
Ms P is a qualified Disability Support Worker. She provided a statement dated 1 March 2021[25] and gave evidence at the hearing.
[25] Exhibit JT1 at 275.
Ms P has over 20 years’ experience in providing disability services. She stated, in part:
I hold a Certificate 4 in Community Services plus a Diploma in Community Services/Disabilities. These qualifications were obtained mainly by completing the requisite number of work hours (or practical training). I completed 120 hours with Disability Trust for my Certificate 4 and 240 work hours for my Diploma. During the work hours, we receive training on following registered nurses in all sorts of scenarios and understanding and complying with set procedures and protocols. The work hours in the course are supplemented by classroom based learning about once a week where we are taught about the various roles within community networks and inter-agency networks so that we can form an understanding of where to go to access facilities and support for people with disabilities and people within the community.[26]
[26] Exhibit JT1 at 275.
Ms P has worked at the shared accommodation on a full-time basis since 2014 as a Disability Support Worker and a team leader. She has assisted in the care of Ms A from the time she was a respite resident through to her transition to permanent resident. Ms P has always provided this care under the supervision of a Registered Nurse. In her statement, Ms P sets out all her responsibilities in caring for Ms A. Her evidence is consistent with the evidence of Ms M.
In relation to further training, Ms P stated:
I cannot undertake the protocols allocated to registered nurses because I do not have the training to do so. Without the proper training, I would not agree to assume tasks that are normally undertaken by a registered nurse because the consequences of any mistake would be serious and possibly fatal to [redacted], [Ms A] and [redacted]. I also do not have any desire to train as a Registered Nurse or to train in providing nursing care. I am happy providing care and support within the scope of my practice as a DSW. I would find it extremely stressful if I was required to administer the Registered Nurse protocols for [redacted], [Ms A] and [redacted].[27]
[27] Exhibit JT1 at 284.
Ms P gave evidence that it is difficult to recruit qualified Disability Support Workers to work at the shared accommodation. This is a result of the rural location, rotational shifts and a shortage of candidates with Certificate 3 or Certificate 4 qualifications. Ms P provided the material on which she calculated that the average length of employment of a Disability Support Worker (excluding herself) at the shared accommodation over 12-18 months prior to March 2021 to be approximately 6.5 months.[28] Based on her experience in the industry, this rate of turnover is about average across the industry.
[28] Exhibit JT1 at 285.
Ms P stated, in part:
I consider that the NDIA’s proposed model of care would make recruitment of DSW staff even more difficult at [the residential accommodation], because we would have to find and retain DSW who would, firstly, be willing to learn registered nurse protocols from a registered nurse (rather than a registered tertiary education provider) and secondly, be committed to stay at [the residential accommodation] for an extended period of time to learn and then carry out these responsibilities. Based on my experience as a DSW team leader, I do not believe either of these things are realistic or probable.[29]
[29] Exhibit JT1 at 286.
Ms P impressed me as an honest witness and I accept her evidence. She too has the practical experience in caring for Ms A.
2.5 Evidence of Associate Professor Wilson
Associate Professor Wilson provided reports dated 5 March 2021[30] and 2 June 2021[31]. He gave evidence at the hearing.
[30] Exhibit JT1 at 307.
[31] Exhibit JT1 at 507.
Qualifications and experience
The qualifications and experience of Associate Professor Wilson are important in assessing his evidence in this matter. At age 18 he commenced working as a disability support worker. He has spent most of his career working with people with severe to profound intellectual disability and disability–related multiple chronic and complex health problems in Australia and in the United Kingdom.
Associate Professor Wilson graduated from Western Sydney University as a Registered Nurse in 1991. He was employed around that time as a Registered Nurse by the Camperdown Children’s Hospital in the neurological and neurosurgical unit where he cared for children with intellectual and developmental disabilities before leaving for the United Kingdom.
Having spent time caring for people with disabilities in England, Associate Professor Wilson returned to Australia and worked with two Disability Service organisations. He later worked for the New South Wales Government as a community worker for people with disabilities.
Associate Professor Wilson then returned to the United Kingdom. He worked in Scotland in a residential facility for people with dual diagnoses, mental health problems and intellectual disabilities. He also worked in a residential facility in England (in which he had been previously employed) as General Manager of Disability Services. After several years he returned to Australia.
Back in Australia Associate Professor Wilson worked as a Respite Manager for children and adults who needed crisis and/or planned respite care. He then worked with a Disability Service organisation by which he had been employed previously, this time as a Registered Nurse providing direct nursing as well as policy development, staff training and developing training resources, during which time he completed his Doctor of Philosophy. He then worked at the University of Sydney as a Research Assistant on a project to assist older adults with lifelong disabilities transition to retirement. Associate Professor Wilson continues to work as a full-time academic in applied research. During the last two years he has worked also as a private nurse consultant for approximately four disability service providers in Sydney. He specialises in caring for those with intellectual and developmental disabilities.
Associate Professor Wilson’s professional qualifications are as follows:
Dip Health Sc. (Nursing); B.Soc.Sc. (Habilitation); M.Sc (Disability Studies); PhD (intellectual disability); G.Cert.Sc. (Applied statistics).
Report of 5 March 2021[32]
[32] Exhibit JT1 at 307.
Associate Professor Wilson reported in part:
Impact of Diagnosis on [Ms A]: [Ms A] is a 39-year old woman with a severe genetic condition that has caused her to have intellectual disability, physical disability, and a number of disability-related chronic health issues. [Ms A] has no verbal communication skills other than via a small number of vocalisations, and can only express the majority of her emotions, needs and preferences via nonverbal means. These non-verbal communications require skilled staff with intimate knowledge of [Ms A] and her support needs to interpret what she is trying to convey. This has particular significance for the communication of symptoms associated with deterioration in her health status and the onset of acute illness where skilled registered nurses are required to interpret, and respond to, [Ms A’s] health status. [Ms A] is an extremely vulnerable woman who, without expert care and support, is at great risk of poor outcomes. [Emphasis added]. For instance, if [Ms A] was constipated and in pain, she could not tell anyone about what she is feeling, rather changes in her behaviour and vocalisations would need to be interpreted by a skilled RN who would then conduct a range of assessments before intervening in a timely manner to avoids an acute situation that may require more invasive medical interventions.
Overall Support Needs Summary: [Ms A] has profound and multiple disabilities with disability related multiple chronic and complex health problems. [Ms A] requires full support for all of her daily care and support needs. A Disability Support Worker (DSW) is required 24-hours a day to ensure that [Ms A] remains comfortable, is able to achieve the greatest quality of life possible, has opportunities to participate in activities that she enjoys, and has all of her daily personal care needs met. The complexity of [Ms A’s] disability-related health support needs, the rapid manner that her health status can deteriorate, and her inability to directly communicate symptoms to others, means that she requires access to a Registered Nurse-led model of relationship-centred care for her overall health needs and management.
Other key issues: [Ms A] has noted adverse reactions to some antibiotics (Cefalexin and Erythromycin) that can cause diarrhoea and other gastro-intestinal changes, which sometimes necessitates an RN-led and temporary alteration in her usual daily medication dose and routine. [Ms A] is also sensitive to some legumes and grains and these are to be avoided. It should also be noted that [Ms A] has an advanced care directive that provides guidance for health care and support during episodes of severe and acute illness.
Note: An RN is the only staff member with the scope of professional practice to undertake a nursing assessment of any acute exacerbation of [Ms A’s] respiratory, urological, sensory and gastrointestinal status, to implement a nursing intervention/s, and monitor and review for deterioration or improvement in [Ms A’s] condition. [Ms A’s] history of unpredictable and rapidly deteriorating health status, needs urgent and skilled nursing assessment, intervention and clinical decision-making.[33] [Emphasis added].
[33] Exhibit JT1 at 310.
In his report Associate Professor Wilson provided eleven detailed Tables, each relating specifically to Ms A:
·Table 1: Overview of chronic conditions secondary to primary diagnosis
·Table 2: Weekly overview of direct support needs, hours and skills required
·Table 3: Weekly overview of indirect support needs, skills required and hours
·Table 4: Daily direct nursing care and support, Mon-Sun
·Table 5: Required Registered Nurse-led assessment and/or development of care plans
·Table 6: Registered Nurse-led review of externally developed plans
·Table 7: Medical and allied health home visits per year (M – F only)
·Table 8: Medical/allied health planned external visits per year (M – F)
·Table 9: General/other RN-specific, health-related tasks
·Table 10: [Ms A]-specific RN training and education in health-related procedures
·Table 11: [Ms A]-specific CNE-led annual staff training needs
In preparing Table 1 Associate Professor Wilson considered Ms A’s respiratory, neurological, sensory, gastrointestinal, endocrine, musculoskeletal, cardiovascular, integumentary and genitourinary systems. He summarised the Registered Nurse-specific care and support needed for each chronic illness suffered by Ms A. The Registered Nurse-led and the Registered Nurse-assisted care and supports stated fall only within the scope of professional practice of a Registered Nurse.
Associate Professor Wilson stated, in part:
The summary outlined in Table 1 offers an insight into the cyclical complexity of the Applicant’s various chronic illnesses and how each condition interrelates with others. For instance, if [Ms A] appears different and not her usual self, as she can’t tell someone why she is feeling different, the experience and knowledge of a RN is needed to determine if this behaviour is due to [Ms A] just having a bad day, or if it is related to pain, illness or cognitive distress. Such episodes are often a sign that an acute illness is brewing and that regular monitoring, rapid assessment and treatment is needed to avoid significant decline. ………. While just offered as a snapshot, based on my experience the number and interaction of [Ms A’s] chronic conditions means that she requires assessment and monitoring from an RN for about five minutes every hour. A DSW cannot do these tasks as they are not health professionals, do not have the skills to conduct such assessments, and have limited insight into the cyclical complexity of all her chronic conditions and the cascading of events that will ensure [sic] if not addressed promptly.[34]
[34] Exhibit JT1 at 315.
The summary of support hours as set out in Table 2 is based on an assessment of Ms A’s individual needs and does not take into account shared living models.
In reference to Table 4 Associate Professor Wilson explained how he calculated the timeframes as follows:
In terms of the stated time frames, it needs to be noted that these are estimates and, for instance, an average of 5 minutes of monitoring and assessment every hour, over the 24-hour period, balances out the reality that on a night shift, it is likely that most of the time this would be 1-2 minutes, but that during the day it will be more like 6-8 minutes. Further, that during times of ill-health and/or distress, these episodes of hourly monitoring and assessment will be greater than 5 minutes per hour. With regard to 10 minutes duration for an initial assessment, this is at the start of each of three shifts per day where the [Registered Nurse] receives a handover about the person and conducts a face-to-face assessment of the person and their relevant notes and charts to determine the course of care and support for the shift.[35]
[35] Exhibit JT1 at 319.
I will refer to Associate Professor Wilson’s report of 2 June 2021 later in these reasons.
Evidence at the hearing
When he gave evidence, Associate Professor Wilson explained that a Registered Nurse is able to “join the dots”[36] between each of Ms A’s different chronic illnesses. He/she has the insight into all the relationship between infections, fluid intake and skin conditions suffered by Ms A. The Registered Nurse is able to identify when Ms A’s conditions are starting to cascade or go wrong.
[36] Transcript 16 June 2021 at 85, 101.
In the opinion of Associate Professor Wilson, the Delegated Model of Care proposed by the Agency, with the Registered Nurse being tasked with training the disability support workers and then providing oversight from a distance, would be harmful to Ms A. He does not suggest that Ms A needs a Registered Nurse 24 hours per day. However, “the risk is that without …… daily access [to a Registered Nurse] ….. there will be an increase in acute exacerbation of [Ms A’s] chronic illnesses [and] an increase in hospitalisation …… .”[37]
[37] Transcript 16 June 2021 at 86.
Associate Professor Wilson said that Ms A is vulnerable specifically in terms of her weight. She is severely underweight and therefore at greater risk of contracting illnesses. Her capacity to recover from being ill is reduced. Ms A’s lack of weight means that a small loss would impact upon her far more significantly than others of normal weight.
2.6 Evidence of Emeritus Professor Dowse
Emeritus Professor Dowse provided a report dated 9 April 2021[38] and gave evidence at the hearing.
[38] Exhibit JT1 at 470.
By way of introduction to her report, Emeritus Professor Dowse stated in part:
Community/Delegation of Care is not a term widely used in the field but in this report I take it to signal the delegation of care from nursing staff to non-nursing personnel (including Disability Support Workers) who are generally identified as operating within the community (as opposed to in specific healthcare settings such as hospitals). Much of the guidance and research addressing delegation of care models is situated in the nursing or health context, with only limited material specifically addressing the operation of such models in the community disability care and support context. [Footnote not reproduced].
…………………………
A medical model of care is often contrasted with a community model and views disability healthcare as being controlled by health professionals who are considered the expert in decision-making about healthcare issues. ………. The move to community care since the 1980s has seen an emphasis on the social citizenship and human rights of people with disability and a general discrediting of the predominantly medical approach. This approach instead emphasises the rights and autonomy of the individual with a disability and places the person at the centre of decisions about their care. While the focus of decision making about care may have shifted to a more person-centred model, there remains a need for high quality medical and clinical care to support the well-being of people in order to provide the foundations for their participation and inclusion in the community.[39]
[39] Exhibit JT1 at 476.
From 2017 to 2020 Emeritus Professor Dowse was the Professor of Disability Studies, School of Social Sciences, University of New South Wales. At the same time, she was the Director (Establishment) of the Disability Innovation Institute at the University. Her areas of expertise include research in disability, in particular intellectual disability and complex social disadvantage.
I will refer to Emeritus Professor Dowse’s report and oral evidence in detail later in these reasons.
2.7 Evidence of Ms Merran, Registered Nurse
Ms Merran provided a report dated 20 April 2021[40] and gave evidence at the hearing.
[40] Exhibit JT1 at 394.
Qualifications and experience
Ms Merran has worked for many years in the attendant care industry. Her qualifications and experience include, but are not limited to:
·45 years experience as a Registered Nurse;
·directorship since 1984 of Southern Cross Healthcare Pty Limited, a Service Provider that arranges short and long-term care at all levels from domestic assistance to highly skilled complex or clinical service situations;
·founding President of the Australian Community Industry Alliance, the Peak Industry Body offering support and advice to service providers in the aged care and disability sectors;
·membership of the NSW Advisory Council of the Lifetime Care and Support Authority;
·membership of the NSW Home and Community Care Advisory Council;
·membership of a working group developing and implementing National Disability Insurance Scheme Quality Practice Standards and Scheme for Service Providers.
Report of 20 April 2021
Ms Merran assessed Ms A on 29 March 2021 in her residential care.
In the opinion of Ms Merran, Ms A requires the presence of shared Disability Support Workers across a 24-hour period to address any needs that may arise.
Ms Merran reported, in part:
Specifically, in my opinion, [Ms A] requires one on one care for all activities of daily living. This includes the following:
·2 hours daily x 2 Disability Support Workers (4 hours a day) – bowel care, personal care, grooming and tidy bathroom and morning medications
·2 hours daily – meal preparation, feeding, medications and cleaning up
·1 hour daily – personal domestic duties, bed, laundry, room cleaning
·1 hour daily x 2 Disability Support Workers (2 hours a day) – management of incontinence
·1 hour daily x 2 Disability Support Workers (2 hours a day) – settling at night
·2 hours x 6 days per week – home based activities (12 hours a week)
·3 hours weekly x 2 Disability Support Workers (6 hours a week) - community access
Please note I have used units of 1 hour – given that he [sic] is living in a shared support arrangement I believe this may be generous although also believe that this is balanced with [Ms A] generally requiring one on one support.[41]
[41] Exhibit JT1 at 404.
In answer to a question as to the supports referred to in the preceding paragraph that she considered needed to be provided by a Registered Nurse, Ms Merran responded:
Although [Ms A] is non-verbal, she clearly demonstrated when she was happy or unhappy in my presence by being calm and settled or thrashing around and climbing the lounge. I see no correlation in relation to a Registered Nurse being more able than a Disability Support Worker to observe her method of communication, frustration, pain or ill-health.[42]
[42] Exhibit JT1 at 405.
In the opinion of Ms Merran, Ms A requires the assistance of a Registered Nurse for 60 to 90 minutes per week. The Nurse “should be in a supervisory role to support [Ms A], her family and the Disability Support Workers.[43]The greater skills of a Registered Nurse “should be used to delegate services or be delivered in a hospital setting.”[44]
[43] Exhibit JT1 at 407.
[44] Exhibit JT1 at 412.
It is the experience of Ms Merran that providers of care services throughout Australia provide 24-hour access to Registered Nurse support and advice for both Participants and Support Workers. However, unlike other organisations referred to, the Agency does not have a contract to substantiate this. It was a requirement in a Provider Guide issued by the Agency, but this is no longer the case.
Evidence at the hearing
Southern Cross, referred to by Ms Merran in her report, is the private company Southern Cross Community Healthcare Pty Limited. The business of this company was started by Ms Merran in 1984 and she has continued to be associated with the company’s delivery of services to people with disabilities, including services under the Scheme.
The aim of the model of service delivery operated by Southern Cross is to normalise the life of the person to whom care is being provided. The needs of the participant are identified by assessment done by a competent Registered Nurse, trained in each facet of the disability. The skills of the local Community Nurse are called upon if required. Disability Support Workers deliver the services and must be trained to be competent to do so and to meet the specific needs of the individual to whom care is being provided. Courses provided by TAFE institutions give basic training only and do not address the needs of an individual.
Ms Merran attended Ms A’s residence for approximately 95 minutes, during which time she observed Ms A and the two other Applicants and considered three sets of records. In the opinion of Ms Merran, this was “more than enough” time to assess the situation.[45]
[45] Transcript 18 June 2021 at 280.
In the opinion of Ms Merran, the cost of having a Registered Nurse available at all times for support and advice to support workers is “an expectation and best practice incorporated into the cost of doing business” by the provider of services to Ms A.[46]
[46] Transcript 18 June 2021 at 286.
Ms Merran was asked how newly employed Disability Support Workers would be trained to care for Ms A after the initial three-month training period proposed by the Agency expired. Ms Merran replied, in part:
Look, the whole transition to NDIS has been very difficult for service providers and very difficult for places like [the residential accommodation] so they’re sort of smaller, isolated a bit, haven’t been around for a long time. The transition has been difficult for everybody so when the transition occurs, and whether they transition or not is another story, but if it is determined that they were to transition to a different model and that’s where the responsibility would be for the service provider, in this instance [the residential accommodation] to ensure that everybody trained appropriately and has the ongoing training so by your registered nurse ………. And then what happens is as you slowly train people who then put them in to do buddy shifts so they do their orientation of [the residential accommodation], they do their orientation relevant to the people they’re looking after, they do their orientation for the provider and they do their orientation on the Commission website that they are required to do. They then do their competency based training and signed off to be able to do the skills. They then work as what’s called a ‘buddy’, they work with a worker and a participant right through all the different shifts all the different occasions of services and that happens until they feel comfortable. If a participant is able to express whether they’re comfortable with the worker that’s great but that’s where we would in this situation would be asking the family, ‘Are you happy with this worker? They feel that they’re comfortable and that they are well-skilled, we have signed them off as competent but are you happy?’ So you would go to that level. And then they will say sometimes, ‘I’d like them to do a few more buddy shifts.’ They might say, ‘No, they’re useless, I don’t want them’. And slowly you would give them a four hour shift by themselves but someone else around and obviously, you know, supported accommodation there are other people around, and increase that until they’re comfortable to go solo.[47]
[47] Transcript 18 June 2021 at 317-8; errors in transcription corrected.
2.8 Assessment of the evidence
Ms Merran gave extensive evidence of the delegated model of care operated by Southern Cross Healthcare Pty Limited. For the reasons which follow I have placed limited weight on her evidence. Where her evidence or opinions conflict with that of Associate Professor Wilson and/or Emeritus Professor Dowse, I prefer the evidence or opinions of the latter witnesses.
Ms Merran gave her evidence in a subjective manner and was intent on promoting the model of care she introduced to Southern Cross Healthcare Pty Limited and which has been operated by it since 1984. In her opinion “Registered Nurse Delegation is the correct and only successful method of service delivery for people with disabilities living in the community in Australia.”[48] Ms Merran has a personal interest in the promotion of the delegated model of care by reason of her being a director and shareholder of the company.[49]
[48] Exhibit JT1 at 413.
[49] Transcript 18 June 2021 at 238 and Exhibit JT1 at 399; it was conceded by the Agency that Ms Merran has been a director and one of two shareholders in the company since 1984 – see Respondent’s Skeleton of Closing Submissions filed 21 June 2021 at paragraph 4.
Having listened to Ms Merran give evidence, I am satisfied that her real concern relates to the distribution of NDIS funds between providers of services rather than the appropriate support for Ms A. She said that:
I don’t see why one house [referring to Ms A’s shared accommodation] in Australia, or two houses or however many, get all this extra funding that nobody else gets and we are all managing perfectly well. And it’s about equality, I think their [Ms A’s and two other residents’] needs are very important ………. but I don’t think they’re any more important than anybody else with a profound disability living in shared support and, you know, I worry that when we’ve got something that works and that I would presume 95 per cent of providers are managing to do under a model that has been developed for this scheme, why is this one different and I haven’t found the difference.[50]
[50] Transcript 18 June 2021 at 321.
Ms Merran was dismissive of the manner in which the care of Registered Nurses is being provided to Ms A, describing it as “old fashioned, cumbersome and expensive without true justification or accurate evidence of better outcomes for the Participant.[51] ………… Registered Nurses often overcomplicate matters and have a hierarchical and clinical approach to service delivery that is not normalising and at times condescending. As I am a Registered Nurse myself, I am certain of that my opinion is correct”[52]
[51] Exhibit JT1 at 410.
[52] Exhibit JT1 at 412.
Ms Merran’s views are in stark contrast to the carefully considered report and evidence of Emeritus Professor Dowse, who also was called to give evidence by the Agency. I commend the Agency for its assistance to the Tribunal in calling Emeritus Professor Dowse in addition to its relying on the evidence of Ms Merran.
Contrary to the opinion of Ms Merran, Emeritus Professor Dowse reported, in part:
Initially emerging in the 1990s, the delegation of care model has been most commonly associated with the health workforce in order to respond to medical and clinical labour force shortages.
……….
There is limited research exploring the benefits of community/delegation models of care in a residential facility catering to people with profound and multiple disability, particularly as this model is relatively new in the Australian disability context. This means that there has been limited opportunity for comprehensive evaluation of the process and outcomes of the model itself including for all stakeholders including commissioning bodies, provider agencies, practitioners and front-line workers and most importantly recipients of support delivered under this model. Therefore, empirical evidence for the benefits of this model is scant.[53]
[53] Exhibit JT1 at 475 and 482.
Associate Professor Wilson also was considered and measured in giving his evidence and provided a detailed report, described by Emeritus Professor Dowse as "detailed and excellent… outlining his assessment of the nursing needs of the NDIS participants to whom these matters refer”[54]. Associate Professor Wilson spent significant time observing Ms A and considering her records kept by the staff (including the Registered Nurses) at the shared accommodation.
[54] Exhibit JT1 at 490.
Associate Professor Wilson was questioned concerning the calculations in his report, based on minutes, for various activities which led him to conclude that Ms A needed the support of a Registered Nurse for two hours and six minutes per day. It is unnecessary that a determination of what is “reasonable and necessary” rely on such minute detail. Based on his experience and his careful assessment of the individual needs of Ms A, I accept his evidence as to the amount of Registered Nurse care required by Ms A. In contrast, Ms Merran made her estimate based on a unit of 30 minutes.
I am satisfied that both Emeritus Professor Dowse and Associate Professor Wilson gave their respective evidence objectively and without personal interest in the outcome of this application for review.
Further, in weighing up the evidence I have taken into account the evidence of Ms A’s parents, Ms M and Ms P, all of whom have had years of experience in caring for Ms A.
PART 3
REASONING
3.1 APPLYING SUBSECTION 33(5)
3.1.1 Ms A’s statement of goals and aspirations (s.33(5)(a))
In her plan which commenced on 29 May 2020[55], the following goals were stated on behalf of Ms A:
·I would like to maintain my current levels of participation in social and recreation activities at home and in the community;
·I would like to maintain contact with my family and continue with my regular visits home;
·I will continue to live in my current home;
·I will maintain optimal health and wellbeing.
[55] Exhibit JT1 at 131.
3.1.2 Relevant assessments conducted in relation to Ms A (s.33(5)(b))
I have had regard to the assessments of Ms A by Ms M and Ms P, both of whom are involved in the day-to day care of Ms A. I have had regard also to the assessments in relation to Ms A by Associate Professor Wilson and Ms Merran. I give more weight to the assessment by Associate Professor Wilson than I give to that by Ms Merran.
In his report, Associate Professor Wilson set out the procedure he followed in assessing Ms A and her needs:
I attended [the residential accommodation] on Thursday, 21st January 2021 for a total of 8 hours, spending approximately 2.5 to 3.0 hours focussed solely on [Ms A]. During that time I met and interacted with [Ms A], interviewed [a Nurse Unit Manager], [a Senior DSW], and interviewed other staff on site that day. I perused all of [Ms A’s] health and daily support files that were available for the last 12 months, which included allied health assessments, medical reports, progress notes, medication charts, health-related data collection charts, and multiple plans of support and care. This was followed up with several phone calls on Monday the 24th January where I spoke to both [redacted] and the male RN on shift [redacted] and sought further detail about [Ms A’s] care and support needs. The observations I make in this report are based on the information I collected from these enquiries.
On 29 March 2021 Ms Merran assessed Ms A while she was in her wheelchair, being transferred to a lounge, on the lounge and having a meal. Ms Merran spent approximately two hours at the shared accommodation during which time she assessed Ms A and two other residents. She spent approximately half an hour observing each of the residents and half an hour (in total) looking at their records. She stated that 30 minutes was “more than sufficient” as she has done “thousands of these assessments”.[56] The cursory nature of Ms Merran’s assessment of Ms A was demonstrated by her assessment of Ms A’s means of communication of frustration, pain or ill-health. Ms Merran recorded that she observed Ms A “being calm and settled or thrashing around and climbing the lounge.”[57]I prefer the evidence of Mrs A, Ms M and Associate Professor Wilson as to Ms A’s means of communication.
[56] Transcript 18 June 2021 at 282.
[57] See paragraph 92 of these reasons.
Prior to conducting the assessment Ms Merran considered the information in the Table in Associate Professor Wilson’s report in which he gave an analysis of each condition suffered by Ms A by reference to her body symptoms. Ms Merran regarded this information as “a great academic chart with little meaning to reality.” [58]
[58] Transcript 18 June 2021 at 281.
Ms Merran was dogmatic when expressing her opinions. In contrast, Associate Professor Wilson provided more balanced and considered views.
3.1.3 The requirements of section 34 in relation to the reasonable and necessary supports (s.33(5)(c))
Bearing in mind what was said by the Federal Court in McGarrigle v National Disability Insurance Agency and having regard to the requirements of section 33, I now turn to consider the requirements of section 34 of the Act in respect of the requested support of care by a Registered Nurse for 4.1 hours per day, (the equivalent of 1,497 hours per calendar year), as set out by Associate Professor Wilson in his report.[59]
[59] Exhibit JT1 at 329.
The decision-maker, in this case the Tribunal, must be satisfied of all the requirements of subsection 34(1). The Agency argues that the support requested by Ms A does not meet all those requirements.
The Agency concedes that the requested support meets the requirements of paragraphs 34(1)(e) and 34(1)(f). I am satisfied that these concessions are appropriate.
Paragraph 34(1) (a) – “the support will assist [Ms A] to pursue the goals, objectives and aspirations included in [her] statement of goals and aspirations”
The Agency argues that Ms A’s statement of goals and aspirations “do not contain any goals or aspirations that funding of an RN would contribute towards.” [60]
[60] Respondent’s Statement of Facts, Issues and Contentions dated 20 April 2021 at para. 159.
This is a surprising submission, particularly in view of the evidence provided by the Agency. It is inconsistent with the evidence, including that of Ms Merran. Considering the disabilities and chronic health conditions suffered by Ms A, the maintenance of her optimal health and wellbeing is critical to the achievement of each of her other goals and aspirations.
None of the witnesses suggested that the care of a Registered Nurse makes no contribution to the maintenance of Ms A’s health and wellbeing. Ms Merran proposed that Ms A required the support of a Registered Nurse on a weekly basis of 60-90 minutes in addition to having the services of a Registered Nurse on call.
Based on the evidence of Associate Professor Wilson, Mrs A, Ms M and Ms P, I am satisfied that the care of a Registered Nurse will assist in maintaining Ms A’s optimal health and wellbeing. In turn, this will enable Ms A to maintain her participation in social and recreational activities, maintain contact with her family and continue living in her current home.
Paragraph 34(1)(b) – “the support will assist [Ms A] to undertake activities, so as to facilitate [her] social and economic participation”
The Agency argues:
The Tribunal should find that it is not necessary for a RN to perform the Tasks, which are already being provided by the DSWs funded in [Ms A’s] plan. There is accordingly no additional benefit obtained from having an RN provide them. Similarly, the necessary Support/Supervision is already funded in [Ms A’s] plan. Accordingly, the Tribunal cannot be satisfied that the support will assist [Ms A] to undertake activities, so as to facilitate her social and economic participation.[61]
[61] Respondent’s Statement of Facts, Issues and Contentions dated 20 April 2021 at para. 162.
For the reasons already stated, I prefer the evidence of Associate Professor Wilson to that of Ms Merran. For the reasons stated in relation to paragraph 34(1)(c) which follow, I am satisfied that the support from a Registered Nurse is reasonable. By assisting Ms A to maintain her optimal health and well-being, the support will assist her to continue to engage, to the greatest extent possible, in social activities both within and outside her home and to visit her family. In engaging in activities outside her home Ms A is able to participate economically as well as socially.
Paragraph 34(1)(c) – “the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support”
Part 3 of the Support Rules provides, in part:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications: (i) the comparative cost of purchasing or leasing the equipment or modifications; and (ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
The Agency’s submission
In its Statement of Facts, Issues and Contentions, the Agency submitted, in part:
164. Given the finding that the Tasks need not be performed by an RN and are already being performed (or will be performed) by DSWs, s 34(1)(c) (including the relevant rules) cannot be made out for the same reasons ………. starting at paragraph 102 [reproduced below] ……:
(a) the alternative comparable support is provision by DSWs;
(b) that support is already fully funded, and there is no benefit or value for money in allocating more funding for that support);
(c) it is inimical to the sustainability of the Scheme to fund supports at the higher RN rate when the tasks can be performed by a DSW, or a model based upon unnecessary involvement of RNs.
165. Similarly, the Supervision/Support required is fully funded in [Ms A’s] plan.
Paragraphs 102 and following of the Agency’s Statement of Facts, Issues and Contentions, so far as relevant to Ms A’s application, reads:
102. Given the finding that the Tasks need not be performed by an RN and are already being performed (or will be performed) by DSWs, s 34(1)(c) cannot be made out: the comparable (indeed, identical) support for the Tasks is provision of the services by a DSW, which is at a lower cost.
103. The necessary Support/Supervision is already fully funded in [Ms A’s] plan. There is no benefit, and no value for money, in allocating additional funding. Further, the applicants’ submission at AS [69] that [Ms A] and the other applicants “need the level of RN care requested” and that “there is no alternative support” to an RN are incorrect. The supports requested by [Ms A] are not value for money.
104. Rule 3.1(a) requires consideration of “comparable supports which would achieve the same outcome at a substantially lower cost”; that is care by DSWs. The submission at AS [70] that the delegated care model is not “a comparable support” is at too high a level of generality, but the apparent intent of that submission (that supports provided by DSWs are not comparable to those provided by RNs) is incorrect when considered at the correct level of analysis (the specific supports). This rule militates against s 34(1)(c) being satisfied.
105. Rule 3.1(b) requires consideration of “whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant”. Given Ms Merran’s evidence, it is not the case that RNs providing the relevant tasks will deliver any benefit over and beyond the benefit already obtained from DSWs providing them. This rule militates against s 34(1)(c) being satisfied.
106. Rule 3.1(c) requires consideration of whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term. As discussed above, Ms Merran’s evidence supported the opposite conclusion: provision of supports by RNs will cost significantly more than provision by DSWs. This rule militates against s 34(1)(c) being satisfied.
107. Rule 3.1(e) requires consideration of whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides. There does not appear to be any suggestion that the rate for RNs sought is higher than the amount for which those RNs could otherwise be obtained. This rule does not affect the analysis.
108. Rule 3.1(f) requires consideration of whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports. Ms Merran’s opinion is that the delegated care model promotes independence of the participant more so than the nurse-centric, which tends to treat activities of normal living into a hospital-like setting: as she says, “[l]iving in and with a hospital model of care does not deliver quality of life outcomes”. This rule militates against s 34(1)(c) being satisfied.
109. As set out above, scheme sustainability must be considered under sections 3(3)(b) and 4(17), and rules 1.3 and 2.5. It is not sustainable for the Scheme to fund at the higher RN rate services that are appropriately provided by DSWs. Similarly, it is not sustainable for the Scheme to fund a nurse-centric model when the delegated care model will cost less. This consideration militates against s 34(1)(c) being satisfied.
Discussion
The requirement that the proposed support represents value for money raises the issue of the competing means of delivering the care needed by Ms A. Assessing whether a support is value for money involves far more than determining the cheapest option. It involves assessing the quality and cost of the alternative supports and the benefits for Ms A that each is likely to achieve. As the Federal Court said in McGarrigle, paragraph 34(1)(c) is a factor in determining the reasonableness of the support requested.
In its submission, the Agency relies upon the evidence of Ms Merran to the exclusion of that of Emeritus Professor Dowse. As I have already stated, I prefer the evidence of Emeritus Professor Dowse and Associate Professor Wilson to that of Ms Merran. For this reason, I do not accept the basis upon which the Agency makes its submission, namely that many of the tasks now being provided for the support of Ms A by a Registered Nurse can be provided by a Disability Support Worker.
The support which has been provided to Ms A at her shared accommodation by Registered Nurses since 2016 has been excellent and contributed to her being able to maintain the highest level of wellbeing and social participation which her disabilities and health conditions allow.
Following her assessment of Ms A on 29 March 2021, Ms Merran reported that:
The current care and services provided to assist [Ms A] are excellent.[62]
This assessment was made despite her view that Registered Nurses are “bossy”[63] and unnecessarily complicate the care of people with severe disabilities.
[62] Exhibit JT1 at 415.
[63] Transcript 18 June 2021 at 258.
I accept the evidence of Ms A’s parents that Ms A is happy living in the shared accommodation[64] and that she “receives excellent and prompt care from the registered nurses”.[65] Ms A’s health issues have been well managed.[66]
[64] Exhibit JT1 at 272.
[65] Exhibit JT1 at 271.
[66] Exhibit JT1 at 271.
Relying upon the evidence of Ms Merran, the Agency argued that Ms A is not sick and therefore does not require the level of nursing support she seeks. This is a matter of semantics. There is no dispute that, in addition to her disabilities, Ms A suffers several chronic health conditions for which she continues to receive treatment. I am satisfied that Ms A does not enjoy good health.
I do not accept the contention that Ms A is “no more vulnerable to poor health from anyone in the community.”[67] Clearly, her chronic conditions and low weight make her more susceptible to complications affecting her well-being than a person enjoying good health without Ms A’s disabilities, which include the inability to clearly communicate her symptoms to others.
[67] Respondent’s Skeleton of Closing Submissions at para.8.
Based on the evidence of Emeritus Professor Dowse and Associate Professor Wilson, I am satisfied that the method of providing the required support for Ms A as proposed by the Agency, (referred to as the delegation of care model) does not represent value for money. I am not satisfied that the quality of the proposed care will meet Ms A’s reasonable needs. Further, the cost of implementing the proposed method of delivery of care is unknown. My reasons for this conclusion follow.
I accept the following evidence of Emeritus Professor Dowse:
·the delegation of care model has been most commonly associated with the health workforce in order to respond to medical and clinical labour force shortages;
·while the focus on decision-making about care may have shifted to a more person-centred model, there remains a need for high quality medical and clinical care to support the well-being of people in order to provide the foundations for their participation and inclusion in the community;
·community delegation of care models are relatively new in the Australian disability context and so there is very limited empirically validated data or evaluating evidence available about their operation and/or the rationales for them;
·broadly speaking, models of delegation see the person making the delegation as retaining overall responsibility and accountability for the task;
·delegation of care requires significant decision-making, assessment, training and oversight capabilities. In relation to the process of determining the appropriateness of a task for delegation, there is no definitive guidance because each person with a disability will present with a unique set of factors and care and support needs;
·delegation to disability support workers most commonly occurs with low-risk/low-complexity tasks. In this case the assessment of risk and complexity is particularly important to consider would ordinarily take into account the potential for a low-risk task to escalate to medium or high risk for complexity. Here the necessary training, support and monitoring should be carefully considered;
·in relation to training, consideration would be given to the understanding that skills training will likely be undertaken by direct modelling of the task as well as instruction in the concepts and issues that are relevant to understanding the nature of the tasks;
·the provision of supervision to the person undertaking delegated tasks is a critical component of the quality assurance mechanism of delegation of care model;
·disability support workers cannot accept delegation of clinical care tasks unless structures and mechanisms for supervision by a clinically responsible person are available to them;
·importantly this clinical supervision is distinct from the expected professional or managerial supervision that a disability support worker undertaking disability -related (rather than clinical) tasks would also ordinarily receive;
·overall accountability for the care task remains with the person delegating, such as the registered nurse;
·it is estimated that about one quarter of the disability workforce change jobs every year, with employment losses most concentrated in the departure of casual workers. Overall these findings indicate a fast-growing, high turnover disability support workforce;
·skills and competencies are traditionally more likely to be developed in disability support workers through on-the-job training, via workplace supervision by more senior staff via communities of practice and peer mentoring. However, it is widely held in the field that current unit pricing structures presents significant challenges for disability service providers in providing regular training opportunities for staff ………. These identified concerns have the potential to significantly impact on the capacity of disability support workers to effectively provide for their clients well-being and on the overall quality of services provided [emphasis added];
·several Australian studies have explored the experience and confidence of disability support workers in supporting the health care needs of group home residents with intellectual disability and complex or chronic health conditions related to, for example, ageing or end-of-life. Overall, these indicate that staff often have limited knowledge and a high level of discomfort about supporting such residents;
·there is limited research exploring the risks of community/delegation models of care in a residential facility catering to people with profound and multiple disability, particularly as this model is relatively new in the Australian disability context ………. empirical evidence for the risks of this model is scant;
·an essential element of the implementation of the delegation of care model centres on the correct assessment of the risk itself.[68] [Emphasis added].
[68] Exhibit JT1 at 475-485.
Emeritus Professor Dowse’s report and oral evidence are of considerable significance in determining Ms A’s claim. Unfortunately, neither appears to have been given appropriate consideration by the Agency in this matter.
Rule 3.1 requires consideration of a number of factors.
For the reasons stated above I do not consider that the support under the delegation of care model is comparable to that presently being provided to Ms A. The proposed performance by a Disability Support Worker of many of the tasks presently undertaken by a Registered Nurse will not be of the same standard. Based on the evidence of Associate Professor Wilson and Emeritus Professor Dowse I am satisfied that Disability Support Workers are not qualified to provide the day-to-day nursing care required by Ms A. The outcome for Ms A, particularly in the maintenance of her optimal health and well-being, would not be the same as she presently enjoys.
I am not satisfied that the implementation of the delegation of care model for Ms A would result in “a substantially lower cost” [emphasis added] than the care presently being provided. The Agency proposes that a Registered Nurse be funded to train the Disability Support Workers presently working at Ms A’s shared accommodation. However, there is no provision for the cost of the ongoing training of Disability Support Workers in an industry in which the turnover of staff is high.
I have accepted the evidence of Ms P that, on average, Disability Support Worker remain working at the shared accommodation for approximately 6.5 months. Ongoing training costs would be substantial, assuming that appropriate Registered Nurse trainers could be engaged. Further, there has been no assessment of any additional costs involved in engaging Registered Nurses who would be prepared to accept responsibility for delegating tasks to others when they would not be exercising direct supervision of the staff to which the tasks had been delegated. The evidence of the comparative pay rates of a Registered Nurse and a Disability Support Worker does not address these issues.
When Ms Merran gave evidence as to the operation of the delegated care model in accommodation provided by Southern Cross, she did not address issues arising from differences in economies of scale associated in training staff for an organisation of approximately 1800 support workers across 11 shared houses compared with Ms A’s shared accommodation of six permanent residents and six residents in respite care. I am not satisfied that the costs of staff training are comparable.
I am satisfied that the higher quality of care provided by continuing input from Registered Nurses will substantially improve the life stage outcomes for, and be of long-term benefit to, Ms A. I make this finding on the basis that Ms A’s optimal health and well-being will be maintained by the level of Registered Nurse care she is presently receiving.
On the same basis, I am satisfied that the provision of the support requested by Ms A is likely to reduce the cost of funding supports for her in the long-term. Failure to maintain her optimal health and well-being is likely to require increased nursing support.
On the evidence before me I am not satisfied that there is support of the same kind to that being sought in the area in which Ms A resides. I have taken into account that recruitment of Disability Support Workers is difficult, and that staff turnover is high. I do not accept that the alternative support proposed by the Agency is already fully funded. As the contribution to Ms A’s care by Registered Nurses is proposed to be significantly reduced it is reasonable to expect that additional hours of support by Disability Support will be required.
The maintenance of Ms A’s optimal health and well-being is unlikely to increase her independence or reduce her current need for other kinds of supports. However, I am satisfied that it will enable Ms A to continue to enjoy living in her shared accommodation
3.1.4 Paragraph 34(1)(d) – “the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice”
The Support Rules provide, in part:
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
When Ms Merran gave evidence, and in the submissions on behalf of the Agency, there was repeated reference to current best practice. It is to be noted that this is not a requirement of either the Act or the Rules. I am required to have regard to current good practice in deciding whether the support requested by Ms A will be, or is likely to be, effective and beneficial for Ms A. References in the Act to best practice[69] do not specifically relate to the determination of reasonable and necessary supports.
[69] See subsection 4(15).
It was submitted on behalf of the Agency:
167. First, given the finding that the Tasks and Support/Supervision are, other than to the extent identified by Ms Merran, unnecessary, there is no basis on which the Tribunal could conclude that they would be effective or beneficial to [Ms A]. They add no utility or benefit to what is already in her plan.
168. Second, for the reasons set out for [redacted name of another Applicant] in paragraphs 112 -113 above, the “delegated care model” — the funding for which is already contained in [Ms A’s] plan — is best practice and is likely to be more beneficial to [Ms A].
169. Section 34(1)(d) is not satisfied.
Paragraphs 112-113 state:
112. Rule 3.2(a) requires consideration of “published and refereed literature and any consensus of expert opinion”, while rule 3.3 requires consideration of expert opinion. The evidence of Ms Merran and Prof Dowse supports the “delegated care model” as being the most beneficial outcome.
113. Second, if the Tasks and Support/Supervision were funded as [redacted] requests, the result would be a medicalised form of treatment of his disabilities that treats him as sick rather than as a person living with disabilities. Such a result is contrary to best practice (identified in above) and, on Ms Merran’s evidence, is not likely to be beneficial to [redacted]. [70]
[70] Respondent’s Statement of Facts, Issues and Contentions dated 20 April 2021.
The Agency’s first submission is based on a false premise. For the reasons already stated, I do not accept the evidence of Ms Merran as to the necessity of the Tasks and Support/Supervision.
I prefer the evidence of Associate Professor Wilson as to the most beneficial outcome for Ms A. Emeritus Professor Dowse raises significant doubts as to the efficacy of the delegated model of care for Ms A.
Based on the evidence of Emeritus Professor Dowse I am not satisfied that the delivery of support services under the delegation of care model is effective in the support for others in like circumstances to those of Ms A. There is a lack of evidence to support the effectiveness of the delivery of support to those living in accommodation similar to Ms A’s shared accommodation. Ms Merran’s evidence relates to the delivery of care in a large organisation with a large staff.
The lived experience of Ms A and her parents is evidence of the success of the care of Registered Nurses (working in conjunction with supervised Disability Support Workers) in maintaining the optimal health and well-being of Ms A over her 40 years.
3.2 subsection 3(3) and subsection 4(17): the need to ensure the financial sustainability of the National disability Insurance scheme
In exercising powers under the Act, I am to have regard to the need to ensure the financial sustainability of the Scheme.
The Agency’s argument
The page references with prefix TB in the following paragraph refer to exhibit JT2.
In written submissions[71], Counsel for the Agency contended:
[71] Respondent’s Skeleton of Closing Submissions at paras 76-83.
76. Ms Merran was frank: [the shared accommodation’s] model is “not sustainable”.[72]
[72] Transcript 18 June 2021 at 322.
77. The most recent Scheme quarterly report is in evidence as R18. It contains a number of relevant statements.
At TB 442 it states:
SIL pricing reform
The SIL quoting and negotiation process used previously has been replaced with set price limits for SIL supports. Providers are now required to develop a roster of care using the NDIA’s current price limits for activities of daily living and submit this to the NDIA for consideration. There is increased rigour around determining the suitability of rosters of care for participants at first plan and for subsequent plan reviews. Importantly, the new process will ensure input from participants, so participants have more control over their plan budget.
78. At TB 445, in the “financial sustainability” section, it sets out year to date figures, showing
$16.685 billion of funding for 449,998 participants. That is an average of $37,078 per participant.
79. At TB 446, it states:
There have been high levels of inflation (well above wage increases) within the Scheme since its inception. This is evident for participants in SIL, noting that the support costs for participants in SIL are a material component of Scheme cost. Since April 2018, the average payments per SIL participant have increased by 17 per cent annually whilst wages have increased by approximately two per cent annually on average over the same period.
80. At TB 450, it states:
In order to address administrative delays, lack of transparency and Scheme sustainability, the SIL quoting and negotiation process used previously was replaced with price limits for SIL supports in 2020. Providers are now required to develop a roster of care using the NDIA’s set price limits for activities of daily living and submit this to the NDIA for consideration. There is a focus around assessing the suitability of rosters of care for participants at first plan and for subsequent plan reviews.
81. Finally, table P.1 shows that the 24,928 out of 449,998 (5.5%) Scheme participants with SIL have committed supports for SIL of $8.7b vs $31.6b total; that is, 28% of committed supports.[73]
82. The Tribunal should be very cautious in going above the hours estimated by the only expert who has experience in running models of care.
83. Finally, A/Prof Wilson undertook a “thumbnail” calculation in his reply. Using the correct rates, the difference for each participant between his and Ms Merran’s numbers is $290.37 per day for [redacted], $170.58 for [Ms A] and $295.33 for [redacted], totalling $275,286.71 per year.
That is about 7.5 average plans; the difference between Ms Merran and A/Prof Wilson can fund about 7.5 average NDIS plans for other Scheme participants.
[73] Page references are to exhibit JT2.
Discussion
It is very concerning that the Agency has suggested that the Tribunal should approach the question of the sustainability of the Scheme in the manner set out in the preceding paragraph. It demonstrates a lack of regard for the objects and principles of the Act, including, but not limited to, the principles relating to respect for the worth and dignity of people with disability and the role of their families and carers.
It has been a regrettable aspect of the Agency’s contentions that it has been suggested on more than one occasion that to allow the support sought for Ms A would give her an unfair advantage over other participants in the Scheme.
Ms Merran, called by the Agency, articulated this approach clearly when she said that “I don’t see why one house [referring to Ms A’s shared accommodation] in Australia, or two houses or however many, get all this extra funding that nobody else gets and we are all managing perfectly well. And it’s about equality ……..”.[74] This is not the issue I have to decide. The issue is whether the support sought by Ms A is reasonable and necessary, taking into account the many considerations required by the Act, the Rules and the Guidelines.
[74] Transcript 18 June 2021 at 321.
Equally, this matter is not about how many other participants could have their plans funded from the funding sought for Ms A. I reject emphatically any suggestion that those who have assisted in the presentation of Ms A’s application have acted other than with the utmost integrity.
Each of the three Applicants whose applications have been heard together are individuals and entitled to be respected as such. It is inappropriate to suggest that Ms A and her two fellow-residents together are seeking to deny others funding of $275,286.71 per year. Even if this was a valid argument, which it is not, the correct figure in relation to Ms A’s claim is $62,261.70.
I place no weight on Ms Merran’s “frank” view that the manner of service delivery requested by Ms A is not sustainable. Ms Merran was not qualified to express this opinion nor is she the only expert with experience in running models of care. Mrs A, Associate Professor Wilson and Ms M all have extensive experience as Registered Nurses running systems other than that for which Ms Merran advocates.
I accept the evidence set out in the Scheme’s recent quarterly report, however it alone is of limited assistance in deciding how I should regard the need to ensure the Scheme’s financial sustainability in this application.
Section 180A of the Act provides for the appointment of a Scheme Actuary whose duties include assessing the financial sustainability of the Scheme, the risks to that sustainability and any trends in provision of supports to people with disability.[75] In this matter, I have not had the assistance of evidence from the Scheme Actuary as to the likely effect of my decision on the sustainability of the Scheme nor have I been advised as to why such evidence was not available.
[75] Section 180B.
To the extent the evidence allows, I have had regard to the need to ensure the financial sustainability of the Scheme. It does not alter my decision.
3.3 is the requested support reasonable and necessary?
The application of the relevant provisions of sections 33 and 34 and the Rules support the conclusion that the requested support is both “reasonable” and “necessary”. However, as stated by the Court in McGarrigle, the meaning of each word is not exhausted by the applications of these provisions.
I have considered the guidelines issued by the Australian Community Industry Alliance, which represents and supports those who provide services to people with disability living in the community.[76] There is nothing in the guidelines which causes me to change the conclusion I have otherwise reached. In any event, a service provider should follow expert medical advice rather than the guidelines. The guidelines are not binding on the Tribunal.
[76] Exhibit JT2 at 1-42.
I was referred to the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018[77] made by the Commissioner of the NDIS Quality and Safeguards Commission.
[77] Exhibit JT2.
The Preamble to the Rules states, in part:
These rules set out some of the conditions that providers must comply with to become and remain registered NDIS providers. They also set out the NDIS Practice Standards that apply to all registered NDIS providers, and those that apply to providers delivering more complex supports in areas such as behaviour support, early childhood supports, specialist support coordination and specialist disability accommodation.[78]
[78] Exhibit JT2 at 162.
The provider of services to Ms A is a registered provider. There is nothing in the rules which causes me to change the conclusion I have reached.
The provision of the nursing care recommended by Associate Professor Wilson is consistent with the objects and guiding principles of the Act set out in sections 3 and 4 respectively.
The present delivery of care to Ms A takes place in small accommodation shared by five other permanent residents, at least two of whom have complex disabilities and health conditions. The accommodation is in regional New South Wales which does not have immediate access to the same level of specialist medical care as is available in metropolitan areas and large regional cities.
Further, for all her life Ms A has been cared for by a Registered Nurse. This level of care has proved to be successful in maintaining her optimal health and well-being and providing her with an environment in which she is happy. Ms A’s parents made the decision to place her in the full-time care of others based on the level of care being provided in the shared accommodation, in part funded by the Agency. It is both reasonable and necessary that this level of care be maintained to enable Ms A to continue to receive the same excellent care she has received to date.
PART 4
CONCLUSION
The reviewable decision made 25 May 2020 will be set aside and in substitution it will be decided the Agency fund the provision of support for Ms A by a Registered Nurse for 4.1 hours per day, seven days per week from 15 October 2019.
I certify that the preceding 174 (one hundred and seventy -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
................................[SGD].................................
Associate
Dated: 15 December 2021
Date(s) of hearing: 15, 16, 17, 18 & 21 June 2021 Counsel for the Applicant: Mr T Liu Solicitors for the Applicant: Holman Webb Lawyers Counsel for the Respondent: Mr B Kremer Solicitors for the Respondent: Australian Government Solicitor
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