Secretary, Department of Health v DLW Health Services Pty
Limited  FCA 108 is an appeal to the Federal Court of
Australia against a decision of the Administrative Appeals
Tribunal, concerning a decision by delegates of the Commonwealth
Department of Health to reduce classification levels of aged care
The question for the Federal Court was whether or not the
Classification Principles 1997 (Cth) purported to classify
care recipients based on the care actually provided as opposed to
their care needs.
The Classification Principles determines the appropriate
classification level for a care recipient being provided with
The case concerned the Secretary's decision to reduce the
classification levels for the five residents of Footscray Aged
Care, in relation to complex medical and therapeutic procedures.
The scheme requires the Approved Provider to make an appraisal of
the level of care needed by a care recipient and for the Secretary
to take that appraisal into account when classifying the care
recipient. However, if the classification is based on an incorrect
or inaccurate appraisal or if the classification is for any other
reason incorrect, the Secretary must change the classification.
There were four issues to consider:
The Court held that the Tribunal was correct to decide that the
Minister's power to make Classification Principles is limited
by a requirement under section 25-1 of the Aged Care Act 1997
(Cth) (the Act) that such principles classify
the care recipient according to the level of care the care
recipient needs, relative to the needs of other care
More importantly, the issue is whether they purport to classify
the care recipients according to the treatment actually provided to
A care recipient will only come within Items 4a or 4b of ACFI
12 if a Directive issued by a medical practitioner or allied health
professional indicates that the treatment specified in respect of
those items is to be provided (i.e. performed) by an allied health
professional (or registered nurse for Item 4a). The Court held that
the Tribunal made an error in allowing a care recipient to come
within those items where an allied health professional delegates
treatment to someone who is not an allied health professional.
Whether an examination of the Directives and other records
before the Tribunal shows that Items 4a and 4b of ACFI 12 are
satisfied in respect of the five residents? The Court allowed the
appeal, set aside the decision of the Tribunal and remitted the
matter to the Tribunal to decide again.
The appeal has revealed some significant inconsistencies,
ambiguities and difficulties in the language of the Answer
Appraisal Pack and the User Guide and is a useful example as to the
complexities of Approved Providers assessing care recipients
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The implementation of the US rules is of interest as it could indicate the future direction for disclosure in Australia.
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