P v Accident Compensation Corporation (Social Rehabilitation - Attendant Care)

IN THE DISTRICT COURT AT WELLINGTON [2018] NZACC 33 ACR 212/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN JESSICA RAINE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 24 May 2017 Appearances: T J Lynskey for the appellant F L Becroft for the respondent Further evidence and submissions completed: 4 December 2017 Judgment: 8 February 2018 RESERVED JUDGMENT OF JUDGE L G POWELL Social Rehabilitation - Attendant Care Sections 81 and 84 and clauses 12 and 14 of Schedule 1 Accident Compensation Act 2001 1] The appellant, Jessica Raine, suffers from an extensive range of complex congenital health conditions which severely impact on her overall health and wellbeing. These conditions include: Spina Bifida with paralysis from T6 Congenital Hydrocephalus Hypoxia and hypercapnia Left nephrectomy 2005 and Right hydronephrotic Seizures Severe Kyphoscoliosis Reduced respiratory function Cervical Syringomyelia Klippel Feil Syndrome, Arnold Chiari Malformations Pernicious anaemia Neuropathic vasculitis [2] The effect of these various conditions, which are not the responsibility of the Corporation, requires extensive support, and the majority of this is provided by Ms Raine's mother, Gillian Bransgrove, who fortunately for Ms Raine is a registered comprehensive nurse. [3] Until December 2010, support to enable Ms Bransgrove to care for Ms Raine was provided to different degrees by the Ministry of Health ("MoH") and the Capital and Coast District Health Board ("CCDHB"). In November 2010 however Ms Raine suffered from a pressure wound to her sacrum while she was in hospital receiving treatment for a fever. This ultimately resulted in Ms Raine being granted cover in October 2012, for a "grade 4 sacral pressure injury with associated infection and abscess", an injury also referred to in various reports as a "decubitus ulcer - sacral". [4] The Corporation's response once cover was granted was to undertake an investigation as to Ms Raine's injury related needs from the time she left hospital. The initial investigation was undertaken by Jenny Phillips, a nurse practitioner, and resulted in a decision by the Corporation of 11 February 2013. This first decision agreed to retrospectively pay for registered nursing care provided by Ms Bransgrove between 10 December 2010 (the date Ms Raine left hospital) and 20 December 2012. With reference to Ms Phillips' conclusions the number of hours to be paid for was broken into three periods as follows: 10 December 2010-28 April 2011 14 hours per week at $32.41/hour 29 April 2011-2 August 2012 3.5 hours per week at $32.41/hour 3 August 2012-20 December 2012 2 hours per week at $32.41/hour [5] Ms Raine sought a review of the 11 February 2013 decision, and in support of her application obtained a report from Megan Powell, another registered comprehensive nurse. Ms Powell's report recommended considerably higher hours for each of the three periods. Following a subsequent report from Ms Phillips and affidavits provided by Ms Raine and Mrs Bransgrove, the Corporation issued a decision dated 13 November 2013 which revoked the decision of 11 February 2013. The decision of 13 November 2013 increased the retrospective hours to be paid for the three periods to 24.5 hours/14 hours/2 hours. This decision was in turn subsequently revoked by the first of the decisions at issue in this appeal, that of 2 December 2013 ("the December 2013 decision"). The December 2013 decision did not change the hours or amounts to be funded so that the December 2013 decision provided: 10 December 2010-28 April 2011 24.5 hours per week at $32.41/hour 29 April 201 1-2 August 2012 14 hours per week at $32.41/hour 3 August 2012-20 December 2012 2 hours per week at $32.41/hour [6] Once more Ms Raine sought a review. Before the review was heard a range of further reports were commissioned, including from Ms Phillips, a neurosurgeon Agadha Wickremesekera), a plastic surgeon (Christopher Adams), and Ms Bransgrove, as well as a range of assessments carried out in respect of Ms Raine's ongoing support needs. [7] In the meantime the Corporation had been considering the hours necessary to support Ms Raine in respect of her covered injury from 21 December 2012, and on 5 February 2014 issued the first decision in respect of this period, which due to the passage of time was now also a retrospective calculation. The 5 February 2014 decision provided reimbursement for registered nursing care provided by Ms Bransgrove to Ms Raine for 1.25 hours per week at $32.41/hour for "direct wound dressings" and covered the period between 21 December 2012 and 27 March 2014. [8] Ms Raine sought a review of this decision and following receipt of further reports the Corporation, by decision dated 16 May 2014, revoked the 5 February 2014 decision. The decision of 16 May 2014 was not entirely retrospective as it extended the period covered from 21 December 2012 to 7 May 2015, and covered Ms Bransgrove for 5.25 hours per week at $32.41/hour "for direct wound issues, fever management and documentation". [9] The decision of 16 May 2014 contained an error in calculating the future payment period however, and in consequence it too was subsequently revoked by yet another decision of the Corporation, this time dated 13 June 2014, the second decision at issue in this appeal ("the June 2014 decision"). Substantively the June 2014 decision came to the same result as the 16 May 2014 decision, so that the registered nursing care assistance provided to Ms Raine in terms of the two decisions at issue is now as follows: 10 December 2010-28 April 2011 24.5 hours per week at $32.41/hour 29 April 2011-2 August 2012 14 hours per week at $32.41/hour 3 August 2012-20 December 2012 2 hours per week at $32.41/hour 21 December 2012-7 May 2015 5.25 hours per week at $32.41/hour [10] Both the December 2013 decision and the June 2014 decision were upheld at review and Ms Raine has appealed. At appeal Ms Raine argues that both of the Corporation's decisions now at issue are flawed and should be quashed because: [a] The hours accepted by the Corporation do not appropriately reflect Ms Raine's registered nursing care needs resulting from her treatment injury; and [b] The rate paid by the Corporation is inadequate and in particular does not reflect the hourly rates provided by the CCDHB. [11] While the overall thrust of Ms Raine's argument at appeal is clear it is, as Ms Becroft submitted on behalf of the Corporation, somewhat unclear as to exactly what Ms Raine is seeking as a result of the appeal. As noted, the position is already complicated by the fact that Ms Raine has serious underlying health conditions for which assistance is already being provided and for which the Corporation is not in any way responsible for. In particular, in respect of the hours that were appropriate Mr Lynskey, for Ms Raine, submitted that Ms Raine should receive "appropriate registered nursing care due to the ongoing effects of her injury" which "should be approved in line of the reports from Ms Powell and Ms Bransgrove, supported by Ms Sutcliffe over the relevant periods of time". Those reports are however somewhat contradictory: [a] Ms Powell in her report of 12 September 2013 recommended: 10 December 2010-28 April 2011 43.75 hours per week 29 April 2011-2 August 2012 17.5 hours per week 3 August 2012 onwards 14 hours 35 minutes per week [b] Ms Bransgrove in her affidavit of 30 October 2013 and her comprehensive report of 10 March 2015 opined that Ms Raine required "24/7" registered nursing care, therefore after subtracting the 6.57 hours care per day funded by CCDHB 17.43 hours per day or 122.10 hours per week should be funded by the Corporation. [c] Ms Sutcliffe in her registered nursing opinion of 20 January 2016 stated only that: The nursing hours that would be required for the management of this wound and including the comfort and well-being of Jessie would be I feel difficult for me to quantify. Time would be allocated for a wound dressing and management, which in my opinion is just a small part of the overall care required for Jessie. In addition to wound dressings regular wo hour turns (the gold standard) would be required, which is no less she would expect if she was in hospital care (Hoviattalabl, Hashemizadeh, 'Cruz, Halfens, & Dassen, 2015). Prior to having this sacral wound Jessie was capable of turning herself, however with such a wound any drag on the wound would compromise healing and actually cause further harm (Groah, Schladen, Pineda, Hsjeh, 2015). Jess needs a clear lift and move manoeuvre not a drag, which Jessie cannot do independently and now needs help with for every turn. Careful skin integrity must be maintained, as due to the location on Jessie's sacrum she is at high risk of infection (Beldon, 2008). Special attention is needed now for nutritional meals to promote wound healing (Rabess, 2015). As Jessie's mental wellbeing is compromised due to the chronic wound and long term bed rest, extra emotional and social support will be needed. Jessie should be given the opportunity to participate in life activities which would only be achieved by a scaffold or support which currently lands solely on Gill her mother and nurse. I would fully be in favour of any report composed by Gill for a request for required hours of home support for Jessie. Gill is the health provider, the nurse at the coal face so to speak, an experienced, reliable nurse, known to be trustworthy and with integrity. Gill is in the real position to state what she needs and how long it takes her to achieve those health needs. [Emphasis added] [12] Likewise with regard to the rate at which Ms Bransgrove should be reimbursed Mr Lynskey submitted variously a wide range of rates from a rate of $37.27 through various rates noted by Ms Powell that Ms Bransgrove was receiving from the CCDHB and MoH at the time of her report, through to the following table contained in Mr Lynskey's submissions: Registered Nurse (RN) shift Weekday Weekends (Monday to Friday) (Saturday / Sunday) AM Day shift $53.00 $79.50 (base hourly rate) PM shift $53.00 $79.50 Evening shift $53.00 $79.50 Night shifts $79.50 $106.00 Public Holiday pay (any shift) $106.00 $159.00 [13] In addition to these issues it is also apparent that the appeal is limited to the funding of the registered nursing care hours provided by Ms Bransgrove rather than any other forms of assistance that may or may not be able to be provided by the Corporation in respect of Ms Raine's injury. The Corporation's liability to provide funding for registered nursing care [14] The funding for registered nursing care sought by Ms Raine comes within the category of attendant care in terms of the accident compensation regime established under the Accident Compensation Act 2001. [15] "Attendant care" is defined in clause 12 of Schedule 1 to the Act: Attendant care - a) means - (1) personal care; and (ii) assistance with cognitive tasks of daily living, such as communication, orientation, planning, and task completion; and (ifi) protection of the claimant from further injury in his or her ordinary environment; and b) includes training a person to provide attendant care, if the Corporation agrees to fund training; but (c) does not include child care, domestic activities, or home maintenance [16] Attendant care forms one of the eight categories known as "the key aspect of social rehabilitation" in terms of s 81(1) of the Act. Section 81(3) provides that the Corporation is liable to provide a key aspect to social rehabilitation to a claimant if the conditions in s 81(4) are met. Those conditions are that: 81 Corporation's liability to provide key aspects of social rehabilitation . . . (4) The conditions are- (a) a claimant is assessed or reassessed under section 84 as needing the key aspect; and (b) the provision of the key aspect is in accordance with the Corporation's assessment of it under whichever of clauses 13 to 22 of Schedule 1 are relevant; and (c) the Corporation considers that the key aspect- (1) is required as a direct consequence of the personal injury for which the claimant has cover; and (ii) is for the purpose set out in section 79; and (iii) is necessary and appropriate, and of the quality required, for that purpose; and (iv) is of a type normally provided by a rehabilitation provider; and (d) the provision of the key aspect has been agreed in the claimant's individual rehabilitation plan, if a plan has been agreed. [17] In terms of s 81(4)(a), s 84 of the Act provides that the following matters are to be taken into account in any assessment or reassessment: 84 Assessment and reassessment of need for social rehabilitation . . . (4) The matters to be taken into account in an assessment or reassessment include- (a) the level of independence a claimant had before suffering the personal injury: (b) the level of independence a claimant has after suffering the personal injury: (c) the limitations suffered by a claimant as a result of the personal injury: (d) the kinds of social rehabilitation that are appropriate for a claimant to minimise those limitations: (e) the rehabilitation outcome that would be achieved by providing particular social rehabilitation: (f) the alternatives and options available for providing particular social rehabilitation so as to achieve the relevant rehabilitation outcome in the most cost effective way: (g) any social rehabilitation (not provided as vocational rehabilitation) that may reasonably be provided to enable a claimant who is entitled to vocational rehabilitation to participate in employment: (h) the geographical location in which a claimant lives: ... [18] The interrelationship between these various provisions was recently discussed by Ellis J in S v ACC where Her Honour noted: [10] Pulling all these legislative threads together, the critical decision-making process in a case such as the present is as follows: (a) ACC exercises its discretion to conduct a reassessment of the claimant's need for rehabilitation (attendant care) under s 84; (b) any such reassessment was required to take into account the matters listed in s 84(4), including the existence of alternative more cost- effective ways of providing the relevant social rehabilitation (attendant care); (c) if, as a result of the reassessment, the claimant is found to need attendant care (as defined, and as a result of the relevant personal injury), then ACC is required to provide or contribute to the cost of t under s 81(3), after taking into account the matters listed in cl 14, which include the extent to which: i) family members might reasonably be expected to provide attendant care for the claimant; and (ii) attendant care is required to give household family members a break, from time to time, from providing attendant care for the claimant. [11] It may be noted that, in exercising its cl 14 discretion, ACC may choose only to make a contribution to attendant care. This is no doubt a reflection of the underlying principle that ACC's role under the accident compensation scheme is to "cushion" against the consequences of an accident, rather than provide full restitution. Decisions in the District Court in relation to attendant care recognise that the matters listed in cl 14 of sch 1 may constitute reasons why ACC might not provide the full amount of rehabilitation recommended following an assessment or reassessment, and reflect a parliamentary expectation that family members will supply at least some of the attendant care without financial assistance. [19] It is important to note from the foregoing that the process is a two stage one. The assessor carrying out the assessment pursuant to ss 81 (4)(a) and 84 is required to identify needs and, as appropriate, options for meeting those needs, providing in effect a platform for the Corporation to then make its decision. In making its [2015] NZHC 3304 decision the Corporation is in turn required to work through the matters in s 81(4)(b) and (c), with s 81(4)(b) in this case requiring the Corporation to have regard to the matters in clause 14 of the First Schedule which provides: 14 Attendant care In deciding whether to provide or contribute to the cost of attendant care, the Corporation must have regard to- (a any rehabilitation outcome that would be achieved by providing it; and (b) the nature and extent of the claimant's personal injury and the degree to which that injury impairs his or her ability to provide for his or her personal care; and (c) the extent to which attendant care is necessary to enable the claimant to undertake or continue employment (including agreed vocational training) or to attend a place of education, having regard to any entitlement the claimant has to education support; and (d the extent to which household family members or other family members might reasonably be expected to provide attendant care for the claimant after the claimant's personal injury; and (e) the extent to which attendant care is required to give household family members a break, from time to time, from providing attendant care for the claimant; and (f) the need to avoid substantial disruption to the employment or other activities of household family members. [20] Finally, with regard to the decisions made by the Corporation, as such decisions made under the social rehabilitation provisions of the Act involve the Corporation exercising its discretion, the case law is well established (particularly in the Supreme Court decision of K v B2) that the exercise of the Corporation's discretion can only be challenged where the Corporation has made an error of law, has failed to take into account some relevant matter, has taken into account an irrelevant matter, or the decision was plainly wrong. The December 2013 Decision [21] As will be clear from the introduction the December 2013 decision was the third attempt to provide for retrospective registered nursing care for Ms Raine. The initial decision was, as noted, based on two reports from Ms Phillips. It was Ms Phillips who identified the three periods later adopted in the December 2013 decision, and it was Ms Phillips who made the first attempt to reconcile the registered nursing care hours Ms Raine was already receiving from the MoH and CCDHB. Of significance to Ms Phillips' conclusions, at the time Ms Phillips undertook her first assessment on 13 December 2012 were her observations of the status of Ms Raine's pressure sore: At the time I saw the pressure sore it was healed over. It presented as a small sinus opening, but when I gently probed it, it was obvious that it was sealed. Above this was an area the size of the palm of my hand which is raised an soft to touch. There was no inflammation and Jessica has no sensation in this area. She is presently afebrile. My concern is that there is a collection of fluid here which will cause the decubitus ulcer to break down again either soon or in the near future. [22] Ms Phillips was concerned about a potential "collection of fluid" around the site of the pressure sore itself and arranged for an ultrasound which the same day confirmed "no evidence of any recurring abscess or fluid collection at the indicated site". [23] Ms Phillips recognised that her task was to provide recommendations for "wound related cares", additional to the care provided by the MoH and CCDHB. She also indicated a conceptual problem in that while the request for assistance was for registered nursing care to be provided by Ms Bransgrove, who was effectively Ms Raine's sole caregiver and a registered comprehensive nurse, an appropriate level of treatment for Ms Raine did not necessarily require all cares to be provided by a registered comprehensive nurse, but rather that it could be provided by other care providers at different levels. Having identified these various issues across her two initial reports Ms Phillips recommended: From 10 December 2012 to 28 April 2011 21 hours per week - ".. given the need for monitoring as well as wound management, it would probably be best to add 30 minutes x2 daily for observations and reviewing clinical condition making a total of 3 hours a day". From 29 April 2011 to 2 April 2012 -7 hours per week - "1 hour a day better" From 3 August 2012 to present - 7 hours per week - "Your dilemma with Jessica is her other co-morbidities and how much the pressure sore has impacted on these in terms of her general condition. ????? Say 1 hour a day if you think you need to cover this in this case, but it is a difficult call ...". 2 [2010] NZSC 112 [24] Considering Ms Phillips' recommendation, Ms Raine's case manager at the Corporation, Jennifer South, commented: Once claim was accepted, Jessica and her mother approached ACC requesting reimbursement of entitlements. In particular and of most importance, is that the client's mother, Gill Bransgrove, is requesting reimbursement for RN care that she has provided to Jessica since the date of claim cover acceptance. Gill initially requested 24 hour RN nursing care reimbursement up until September 2012, then 6 hours per day RN nursing care reimbursement from September onwards on an ongoing basis. I set expectation with Gill and Jessica around what ACC could potentially cover, and that we would not be looking to reimburse 6 hours per day and that it would be significantly less than this, but that we required more information, including a nursing assessment. CM identified via CCDHB, that Jessica has 6 hours per day, 7 days per week, + an additional 4 hours per week paid RN care to carry out cares for Jessica. This was in place prior to the wound developing and was an agreement between Jessica/Gill and CCHDB as the relationship between them and CCDHB District Nursing team had broken down. DNs were previously visiting Jessica at home to carry out nursing cares (bowel, bladder etc). Jessica has a complex medical history including spina bifida. Gill is a registered nurse and she contracts to Miranda Smith, who pay her, via CCDHB. Jessica also has 22 hours per week of carer support hours - I am unsure who is carrying out these cares, but understood at one time it was Jessica's sister (unsure if this is still the case). A Comprehensive Nursing Assessment was completed by Jenny Phillips of Healthcare NZ, under the ACC nursing contract services. This report is attached to this task. Based on this report, I considered the following was appropriate: RN reimbursement: 2 hours per day - between 10/12/12- 28/04/1 1 RN reimbursement: 30 mins per day - between 29/04/11- 02/08/12 RN reimbursement: 03/08/12 - to present - 2 hours per week RN care - ongoing - w hours per day, with regular reviews by wound specialist nurse As I have not approved RN in this way, I was unsure what code to use, however, did find HBRNO6 (registered nursing care privately engaged nurse) . CCDHB then approached CM to advise that they would also like to invoice ACC for RN costs associated with the care of Jessica's wound. They maintain that Gill provided wound care as an RN within the daily 6 hours that they contract her to do. They advise that although 6 hours is paid daily, this is because Jessica requires 3 visits per day for catherisation, and that Miranda Smith has a minimum of 2 hours per visit, hence the need for 6 hours per day. CCDHB state that Jessica did not require the full 6 hours of care therefore any wound care RN time would have been used within the 6 hours per day. Gill and Jessica completely disagree with CCDHB's view, and state that in no uncertain terms, was the time allocated (48 hours per week) never used for wound care tasks and that these have been completed over and above the cares she required pre-injury. We now have a situation where Gill (mother) and CCDHB are requesting backdated funding, and funding moving forward, for Jessica's ACC wound care. Please can you provide advice around what you feel is the best option/path to take in terms of who ACC should be reimbursing for RN time - both backdated and moving forwards. [Emphasis in original] [25] Before any decision could be issued however Ms Raine emailed the Corporation reiterating her position that 24/7 registered nursing oversight care was required, and noted various reports including a report from Raymond Alexander, a nurse advisor from the ACC Treatment Injury Unit. [26] As a result, Ms South sought input from Mani Gower, an operational risk analyst at the Corporation. Ms Gower noted the application and Ms Phillips' assessment before advising Ms South: Decision I agree that, in this case, it is reasonable to pay nursing care prior to the date an application was received on 20 November 2012. Arrears are calculated at $17,857.91 including GST, for the period 10/12/10 (the day following discharge from hospital) to 20/12/12 (the date the nursing assessment and the Ultrasound result were received. The Ultrasound (dated 13 December 2012) clearly identified there was no residual fluid collection at the lower sacral site. As prior to the injury, monitoring of skin integrity returns to a DHB funding responsibility. The assessor made recommendations for approximate hours related to direct wound care assistance. From the date of Jessica's discharge home from hospital until April 2011, she stated that Jessica's mother dressed the wound 3 - 4 times daily, and that this would have been expected to take 20-30 minutes each time. From April 2011 to July 2012, the assessor stated that the wound was dressed daily. From August 2012, the hole had closed over and the assessor stated that 1-2 hours per week registered nursing oversight was required. Based on this information, ACC determined that the following hours were required for injury related needs over and above the care funded through Health: From 10/12/10 to 28/04/11 14 hours per week (280 hours at $32.41 including GST). From 29/04/11 to 02/08/12 3.5 hours per week (231 hours at $32.41 including GST). From 03/08/12 to 20/12/12 2 hours per week (20 hours at $32.41 including GST). The payment should be made under code HBRN06, 'Non Contracted Nurse Rate'. Please advise the client of this decision. [27] Ms Gower's note accordingly formed the basis for the Corporation's first decision of 11 February 2013, which was communicated to Ms Raine and Ms Bransgrove at a meeting the same day. In response Ms Raine and Ms Bransgrove not only disputed the hours recommended but Ms Bransgrove also raised the issue of the rate that she was to be paid by the Corporation. In particular Ms Bransgrove noted that "she is entitled to penal rates", "that what ACC proposed to reimburse was insulting", and suggested that the Corporation engage her via a nursing agency in the same way as registered nursing care payments were funded by the CCDHB. [28] The issue about payment through an agency formed the subject of a collateral decision to the decision of 11 March 2013. This letter dated 26 February 2013 stated that the Corporation did not "consider making a retrospective payment through an agency would be appropriate". Importantly however the broader issue of the rate at which Ms Bransgrove was to be reimbursed was not addressed, in either that letter or indeed in any other decision made by the Corporation now at issue. [29] In the meantime, notwithstanding Ms Phillips' comments with regard to the wound and the findings of the ultrasound commissioned by Ms Phillips, a subsequent ultrasound undertaken in May 2013 confirmed that "there is definitely fluid which is mobile on u/s compression surrounding the lesion". [30] In the meantime the Corporation obtained a further report from Mr Alexander who confirmed that references in his first report to 24/7 care referred to Ms Raine's level of care generally, rather than her specific injury related needs. [31] At this point Ms Powell issued her assessment on behalf of Ms Raine. Ms Powell appears to have started from the position that "if [Ms Raine] was not at home with her mother, a registered nurse, and was placed in a care facility Jessica would require "24 hour" registered nursing overview". As to whether this was the responsibility of the Corporation however Ms Powell noted: Taking into consideration Jessica's underlying health conditions she had prior to her injury and the level of care for an attendant or support worker, I find cares and hours difficult to separate. In my opinion Jessica's injury has had an impact on all of her cares. Part of my reason for having difficulty in separating out registered nursing cares versus attendant/support care are due to the issue Jessica requires cares for a support worker in assistance and direct supervision of a registered nurse. This finding was supported by CCDHB providing a District Nurse in attendance with a support carer, prior to Jessica's injury. [32] In a long and detailed report Ms Powell went on to question whether the hours funded by the MoH and CCDHB properly reflected Ms Raine's pre-injury needs before noting: The level of independence Jessica had after suffering her personal injury is more difficult to define. What is stated in the review notes provided by ACC's assessor, Jenny Phillips, is that Jessica was independent with some cares; turning, position changes, bathing prior to her wound but as a result of her injury appeared to be mainly bed ridden and unable to self turn. This could be where Gerard Mcleod's assessment reviews may play a part, although his was conducted at the onset of Jessica's wound. The level of registered nursing (1/2), I feel is outside my experience to assess. Another provider's opinion could be sought for this. Jenny Phillips had recommended the preference for support reviews from a wound care specialist nurse be considered and implemented. I suggest the recommendations for peer nursing and clinical reviews be considered and implemented due to the complex nature of this case as the primary purpose of peer review is to help assure the quality of nursing care through the safe deliverance of standards of care and newly discovered evidence-based practices. I have not been provided references as to registered nursing scopes for level one or two. I would suggest the additional cares required for Jessica, if Jessica did not have so many other contributing/confounding underlying health concerns, could theoretically be implemented to a support worker role as suggested by Jenny Phillips. On the other hand I would advise caution around this option, as the ability of a support worker to constantly review and assess changes and skin integrity, (as would be required for Jessica's injury), in conjunction with the other confounding health concerns would not be seen to be the role of a support worker and should not be carried out without direct supervision from a registered nurse. This is confirmed in Jessica's nursing notes, as support care in conjunction with registered nurse attendances. . . . It is important to consider the person as a whole and assess all their needs not just limited to mobility and regardless of the support surface used, regular repositioning of Jessica would be required. Depending on needs, ability and wriggle factor' (alluded to in Jenny Phillips report) this could be more frequent than two hourly which is considered to be the minimum requirement dependant on patients needs, ischemia, bony prominences and abilities as in accordance with Carol Tweed and Mark Weatherall article "Hidden under the Covers: Pressure ulcers in primary care", NZFP, volume 33, no3 June 2006. They conclude pressure areas can develop in as little as two to six hours, hence the key to intervention and prevention is to identify at risk individuals such as Jessica and implement preventive measures. Once the risk of pressure ulcer development is identified it is important action is taken and regularly evaluated. [33] Ms Powell went on to comment with regard to Ms Phillips' initial assessments before making her own detailed recommendations as follow: From 10/1210-28/4/11 43.75 hours per week (at contractors or agreed non contractors rate including GST). . .. 4 x dressing 30 minutes per dressing and 15 minutes for bowel cleaning and or medication needs 45min per dressing = 180 minutes (3 hours) 30 minutes wound dressing as assessed by Jenny Phillips. From 29/4/1 1-2/8/12 17.5 hours per week plus (at contractors or agreed non contractors rate including GST) 1 dressings per day 45 minutes + 30 minutes catheterisation needs and 1 x bowel medications per day. 20 minutes transfer and fluid etc needs + Allowance for incontinence and menstrual needs. Allowance of one hour per day for recordings as mentioned by Jenny Phillips. From 3/8/12 14 hours and thirty five minutes per week (at contractors or agreed non contractors rate including GST) 1 dressing per day with bowel cares 45 minutes, 1 additional bowel medication per day 15 minutes, 15 minutes x 1 catheterisation needs, transfer assistance 20 minutes per day allowing 5 minutes per transfer, and 30 minutes per day for recordings and as recommended by Jenny Phillips. [34] Ms Powell's report was referred to Ms Phillips. In her report of October 2013 Ms Phillips did not take issue with the hours recommended but instead noted: Megan Powell has included in her hours catheterisation, medication and bowel management and all of these should have been in place pre injury - an issue here is the level of funding provided before the pressure sore. Both Megan Powell and I have indicated the allocation of hours for these is not clear and there does not appear to be any allowance for extra time which may be needed e.g. more frequent catheterisation or diarrhoea. Nursing care hours for these aspects certainly need adding to nurse hours for wound management. There is also the requirement for recordings of baseline observations and writing up notes which is allowed at an hour a day during the acute period. . .. For ongoing management, I would support Megan Powell that a full integrated and comprehensive rehabilitation assessment is required, which will provide a comprehensive 24 hour care plan of all Jessica's needs. Additionally consideration be given to a Clinical Case Manager from one of the involved providers, who co-ordinates and communicates with all parties and ACC and has the "whole" picture at all times. [Emphasis added] [35] The Corporation subsequently received affidavits from Ms Raine and Ms Bransgrove reiterating their own respective beliefs as to what level of care should be provided by the Corporation. These were also referred to Ms Phillips. In her response of 31 October 2013 Ms Phillips accepted that "the abscess would have compromised [Ms Raine's] general health". After then providing comment on certain aspects of cares required by Ms Raine Ms Phillips commented: Do you feel ACC's proposed strategy above is sufficient to cover ACC's responsibility for monitoring of the injury related needs? This is difficult and even by you framing the question here it raises the issue which is probably difficult for everyone [?] what is injury related and what is not? A complete rehab assessment would look at her overall abilities and restrictions now, but of course some of those are as a result of her Spina Bifida and possibly everyone finds it difficult to separate the two out when looking at Jessica holistically. What I am not clear on is why Jessica is now lying down nearly all the time. While I had high expectations that the sacral area would break down again, this has not happened, and this may well be because she has been kept from sitting up, however, I do wonder who this is impacting her general health and quality of equipment was in place and Gillian monitored her sacrum 2 hourly for signs of Stage 1 pressure damage. There is always a risk that this may cause another breakdown, especially if her general condition is not as good, but certainly the tissues should be well healed by now. I do wonder whether there should be a one off rehab assessment (for example by someone from Burwood) around whether she needs to lie down the whole time. My feeling would be that she could sit out 2 x 2 hours x 2 a day (with monitoring) to be increased to 4 hourly if there were no problems identified and this should improve her [quality of life] and making eating easier. She certainly would benefit from hoists if Gillian is prepared to use these. Regarding Megan Powell's report (page 3) where she says that Jessica has had an impact on all her care and then again where she refers to changes in her physical condition (page 14) some of these would be because she is prone the whole time, and I am not sure who has recommended this? I think ACC's recommendation for quarterly comprehensive nursing assessments to identify any wound/injury related needs would meet ACC's obligations, and the person people) doing this need to be sure they can separate out these needs from her Spina Bifida needs. [36] The decision of 13 November 2013 and the December 2013 decision followed in quick succession. Unlike the decision of 11 February 2013, neither the 13 November 2013 decision nor the December 2013 decision appear to have been subject to any formal decisionmaking process as to how the hours and rates were determined and how the Corporation therefore came to the conclusion set out in the December 2013 decision in light of the different reports then available. The June 2014 Decision [37] Within a week of the issue of the December 2013 decision the Corporation requested a further assessment from Ms Phillips. This was provided on 5 December 2013 and followed a similar format to her first assessment. Ms Phillips noted Ms Raine's pressure wound and acknowledged in particular that its status fluctuated "so that it appears that there have been times when it is not "active" or may have temporarily sealed over only to break through again", as well as the presence of both fluid and spreading fatty tissue. With regard to the injury related care since her assessment in December 2012 Ms Phillips commented: Gillian has maintained excellent records; in terms of actual wound care there have been days where a dressing has been required and other times when nothing is required, working it out it is probably around 14 days out of 30 that the sinus has scant ooze. This part of the care is probably 15-20 minutes when the dressing is done. In terms of total change in needs I specifically asked Jessica and Gillian about pre-injury and the major change is that Jessica now does not have the strength to transfer herself as she used to, or to change position in bed and her reduced respiratory function also impacts on these activities. In the past I have said that moving and turning can be a support worker role, and this is true, but now it is difficult to judge how to say this because when Gillian does it she brings her "RN eyes" to the process of time. As she said "If I come to put her washing away I look to see if she is still breathing". In terms of bowel and catheter care, there has been a decrease from when there was an open wound and Jessica is now back on ISC 4x a day and manual bowel evacuation 2x a day (covered by a DHB disability funding). Moving and turning: This is where the biggest change has occurred - Gillian gave very little assistance and turning (to prevent further pressure damage) was not such an issue. Now Gillian has to assist with all the transferring e.g. Jessica used to be able to transfer into the car on her own, but now cannot do it without assistance. She also turns her in bed - Gillian estimates she is involved in lifting or turning 10x a day - the time will vary - turning her in bed would not take long - 5 minutes, but transferring to the bath seat or the car would take longer. Additionally as Gillian says, when turning Jessica, this is the time she will observe her and the sacrum and ensure there is no change in condition e.g. fever and provide her with fluids. Jessica has a bottle by her bed and can drink from this, but whereas when she was up more she could refill her own glass/bottle, this is now done for her. She is getting up for short periods and going out, which is ideal in terms of quality of life, but this is always with her mother now. Fever: Jessica never had a problem with fevers until a nine month period 2009- 2010 when the district nurses took over the ISC - then she developed frequent urinary infections and the need for antibiotics until Gillian called a halt to the visits and recommended this care herself. With development of the pressure sore (November 2010) Jessica became very susceptible to wound infections and needed antibiotics and careful observation around when fevers were developing. Since my last visit Jessica has required no antibiotics and the GP has stated that he will not start any unless she has a temperature of 38.5 or over. At least twice a week, Gillian has to administer cares to keep Jessica's temperature down - increasing fluids and tepid sponge this involves observation to see when a fever is brewing and then administering care to keep it from increasing - again difficult to judge on time. It is highly likely that the cause of this is the continuing presence of an open wound/sinus as but I cannot absolutely say this. [38] As a result Ms Phillips calculated the "total [weekly] hours related to wound" since December 2012 as being 25.25 hours per week broken down as follows: Lifting & Transfer 14.00 (based on 10-15 minutes x10/day - this will be swings and roundabouts**) Fever management 8.00 Wound cares 1.25 (rounded up) Documentation 2.00 ** - also takes into account that related activities e.g. Assisting with bathing are not wound related activities. Total hours related to wound = 25.25 a week. [39] Ms South copied Ms Phillips' assessment to Ms Raine and while noting that some clarification was required, advised: In regards to your request for ongoing registered nursing funding for wound care, we are recommending (Wellington Branch of ACC) that we approve 1.25 hours per week for direct wound care assistance, from 21 December 2012 to 27 March 2014. Approving this is outside of Wellington Branch delegation so I will be sending a submission to our operational analysts and requesting their approval for this. In regards to the additional hours noted in Jenny Phillips' report for lifting and transfer and fever management, ACC requires further medical information to confirm that these needs are directly related to your wound/covered injury. Jenny has stated in her report and more specifically in follow up emails that she is unsure whether your deterioration is because of being in bed more because of your injury, or if it is a natural progression of your spina bifida, or a combination of the two. ACC is open to considering additional hours, but require more medical evidence/rationale to support that these hours are directly related to your covered injury. [40] With regard to the latter point Ms South requested Ms Raine provide "reports from prior to [her] injury date that outline [Ms Raine's] functional ability with transfers and daily living tasks?" and advised: What we propose is the following; ACC approval for 1.25 hours per week for direct wound care dressings as per above, from 21/12/13 to 27/03/14 (then review). This needs to be approved by ACC Operational Analysts. Review by Hutt Valley DHB Plastics regarding their opinion of the wound area and any potential treatment they can add. I have reviewed the letter dated 29/09/11 in which they reported that given the anaesthesia risks you would not be a suitable surgical candidate. ACC would be asking specific questions around the cause of your reported fevers and if these relate directly to your covered injury. Review by rehabilitation specialist/neurologist - to complete an assessment of you and provide a report to you and ACC which outlines the reasons for your decline in general functioning (i.e. ability to transfer). ACC would be asking for an approximate percentage of injury related causation factors versus non injury. ACC would also like to suggest that we provide you with some physiotherapy and/or occupational therapy (in your home initially) with the goal of maximising your independence with transfers and other daily tasks. Are you agreeable to this? [41] A social rehabilitation decision-making tool completed by Ms South then recorded: Following this decision being made and payment settled, the client/mother then stated that the client had ongoing RN cares from 21/12/12 to present and ongoing and requesting ongoing RN Funding for this. A further CPA assessment was undertaken on the 04/12/13 which identified RN needs from 21/12/12 to present and ongoing. A variety of other indirect wound care needs were also identified on this assessment report. The CPA assessor is not able to be certain as to the relationship between the wound and these other needs (i.e. transferring/fever management needs). She is unsure if these additional needs relate directly to 1) the covered injury, 2) non injury medical issues or 3) a combination of injury and non injury. CM (supported by TM and Triage Manager) recommend that ACC then arrange for an assessment with Dr Harry McNaughton, rehab consultant/neurologist, to provide an assessment of the client and provide answers to specific questions around the reason for the client's deterioration in daily function and the ongoing reports of fevers and need for fever management and confirmation as to whether this relates directly to the client's covered injury or not. Once ACC receive this report back. ACC will then consider any additional backdated (and moving forward) RN hours. [42] Ms South's conclusions were confirmed by Marie Mckenzie, a senior analyst with the Corporation. Ms Mckenzie noted Ms Raine's treatment injury and congenital conditions before referring to a section of Ms Phillips' initial report (of December 2012) indicating that the pressure wound had healed rather than Ms Phillips updated comments regarding ongoing changes to the nature of the wound as described in her December 2013 report. Ms Mckenzie then confirmed: If is Customer Service Technical Support's view that if there is a need for direct wound dressing care following 27 March 2014 that ACC arrange for an assessment of the client, specifically assessing the reason for the client's deterioration in daily function and whether this relates to the client's covered injury. It may be appropriate for ACC to use a provider such as Dr Harry McNaughton, Rehab Consultant/Neurologist This decision is based on the Comprehensive Nursing Assessment report from Jenny Phillips; dated 5 December 2013 which identifies an injury related need for direct wound dressing cares and that the provision of this will meet the identified rehabilitation outcome. [43] Ms Mckenzie's report led to the issue of the Corporation's decision of 5 February 2014 authorising 1.25 hours per week. 44] Following the issue of this decision Ms Phillips undertook a further comprehensive nursing assessment, the assessment undertaken on 29 April 2014. Ms Phillips noted that the pressure wound was still the same since the previous report, and in relation to the direct injury related registered nursing care needs for the wound commented: I note that ACC is still waiting a medical assessment on this - care needs to be taken that the person doing this assessment recognises the nursing requirements relating to this type of issue. The allocated 1.25 hours a week for the actual dressing is about right, it does not take long to do, and does not need doing every day. What has increased is the hours relating to monitoring for fever and managing prevention strategies - providing fluids, giving Panadol BD and monitoring temperature, this was not needed before, as well as documentation. She has not needed any tepid sponging since my last visit because of the BD Panadol. No time for this has been factored in. Based on present activity, this would be about 15 minutes a day. My report from last time is included below. Fever: Jessica never had a problem with fevers until a nine month period 2009- 2010 when the district nurses took over the ISC - then she developed frequent urinary infections and the need for antiobiotics until Gillian called a halt to the visits and recommenced this care herself. With development of the pressure sore (November 2010) Jessica became very susceptible to wound infections and needed antiobiotics and careful observation around when fevers were developing. Since my last visit Jessica has required no antibiotics and the GP has stated that he will not start any unless she has a temperature of 38.5 or over. At least twice a week, Gillian has to administer cares to keep Jessica's temperature down - increasing fluids and tepid sponge this involves observation to see when a fever is brewing and then administering care to keep it from increasing - again difficult to judge on time. It is highly likely that the cause of this is the continuing presence of an open wound/sinus as but I cannot absolutely say this. Documentation - Gillian keeps comprehensive daily documents around the wound assessment and treatment, which is specific to the injury. Moving and turning - this is probably the most controversial issue. Now that she appears to be slowly getting better equipment this will help with this, for example, reduced turning at night once they find a suitable alternating pressure and particularly if an adjustable bed is added to the mix. However, these are only just being suggested and introduced - ACC need to find out when all the equipment is finally in and how well it is working for Jessica. I presume this is the area where the medical assessment will be used to provide more insight in to ACC hours. [45] Asked how long the needs would be required Ms Phillips noted: Given the time since the pressure sore occurred and the fact that it is static in its present state, it is not difficult to imagine that this will be an ongoing long term problem, otherwise it would have healed by now. The problem with Jessica being wheelchair bound, coupled with poor nutrition, are just 2 of the factors which will have prevented completed healing. [46] Ms Phillips then set out her weekly calculation of hours as follows: Hours in a week - 168.00 DHB funded hrs 48.00 8 hours sleep/nt 56.00 Lifting & transfer 14.00 (based on 10-15 minutes x10/day - this will be swings and roundabouts**) This is for review and will also potentially be impacted by the equipment that is proposed to put in. Fever management 1.45 Wound cares 1.25 (rounded up) Documentation 2.00 ** also takes into account that related activities e.g. assisting with bathing are not wound related ac Total hours related to wound = 5 hours 10 minutes excluding any related additional lifting and moving. [Emphasis in original] [47] No explanation was given as to the differences in hours from her previous assessment, or why Ms Phillips no longer considered the lifting and transfer hours to be wound related activities (see [38] above). Instead Ms Phillips summarised the position in the following terms: This remains a difficult issue, without doubt the reduced activity because of the need to rest on bed more has impacted on Jessica's health, strength and respiratory function, and more recently her spina bifida. I am not qualified to say how much her health could have been expected to decline in terms of her spina bifida without this complication, however her recent hospital admission was a direct consequence of Jessica lying down so much causing a build up of fluid in the brain. Hopefully the equipment being explored will reduce this risk. Her inactivity has resulted in a weight gain which has implications for Gillian lifting and handling on her own. [48] Ms Phillips' recommendations for 5.25 hours per week were accepted by Ms Mckenzie. This resulted in the Corporation's decision of 16 May 2014 which revoked the decision of 5 February 2014 and which, as noted, was itself rapidly revoked and replaced by the June 2014 decision at issue in this appeal. As with the December 2013 decision, apart from Ms Mckenzie's brief comment that the decision was based upon Ms Phillips' report of 29 April 2014, there was otherwise no clear analysis provided to explain the reasons for the decision. [49] The June 2014 decision also contained the following qualification: ACC is still considering your request for additional registered nursing care hours, for tasks outside of the above approval. As discussed, ACC has referred you for a medical case review with Dr Agadha Wickremesekera. Once ACC receives this medical case review report, further entitlement decisions will be made and you will be informed in writing of the outcome [50] The medical case review had been foreshadowed in Ms South and Ms Mckenzie's notes of January 2014, but in the event Ms Raine was only seen by Mr Wickremesekera on 30 June 2014. After undertaking an examination of the injury which he described as a "moderate size pressure area with a fatty swelling up to 18 x 15 centimetres in the sacral region with a small wound and sinus measuring 1 centimetre", Mr Wickremesekera advised: Currently, she is intensively managed by her mum who performs her nursing care around the clock. She is a nurse. I believe that the covered injury has an ongoing affect on Jessica's current condition, in particular, her ability to turn herself. She is unable to sit on her pressure area for long periods and finds it difficult to move herself. She feels that her inability to transfer and more herself is partly due to some tenderness over her sacral area, which has been previously infected. The sacral wound requires ongoing toileting daily. There are no other causes for her to have mild elevated temperature. Her temperature needs to be monitored and her wound needs to be kept clean to avoid increase of the pressure sore, as well as infection, given that there remains a chronic sinus. Given that there is a chronic sinus, it is probable that her mild temperatures are related to the wound I would also suggest, given that I am a neurosurgeon, a further opinion from her plastic surgeon may be pertinent and of more value in making your decisions. [Emphasis added] [51] In line with Mr Wickremesekera's recommendation a report was obtained from a plastic surgeon, Christopher Adams, who answered a number of questions from the Corporation as follows: L. Please provide a thumbnail sketch of Jessica's sinus, its age and its current status. As detailed Jessica has a healthy, almost entirely healed sinus with no evidence of infection or deep underlying cavity. There is a healthy epithelialised margin with no inflammation. It is a chronic sinus which is an epithelialised connection between skin and a deeper cavity consistent with a conservatively healed significant pressure ulcer 2. Please comment on the current wound care requirements. The sinus requires daily inspection, simple cleaning with saline and a protective absorptive dressing to control the small volume of discharge. Protection from pressure directly over the area is essential with appropriate mapping of seats. Protection from shear with an appropriate polyurethane film dressing would be appropriate. As detailed, the dressings are simple and relatively straightforward. The fact that the area is subject to shear on transfer does mean regular inspection and protection and review of the dressings is important. 3. Please advise if Jessica's wound is the ongoing cause of her increased temperatures. There is no clinical evidence that any of the fevers that Jessica experiences have any relation to the sinus, indeed I think that is entirely unlikely. 4. If Jessica's wound is the cause of her increased temperatures, please comment on the ongoing nursing needs for this A simple daily dressing with irrigation of the area and intermittent use of a silver-containing product to control secondary colonisation is appropriate to maintain wound health and restrict secondary infection. 5. Is there any underlying cause for Jessica's sinus to be chronic and producing a high level of exudate? There is no evidence that there is a high level of exudate being produced by this wound. A very small amount of exudate was visible on inspection today which was serosanguinous in nature. The chronicity of the sinus is in keeping with a slowly healed conservatively managed deep pressure ulcer. Mobilising does increase exposure of the area to pressure which will slow final healing. Very commonly the epithelialisation of a sinus tract reaches a stable point where a wound is unable to progress due to the stable nature of the epithelium and a chronic sinus is a recognised end point of such management of a pressure ulcer. 6. Given the ongoing problems that Jessica's wound is causing, would you recommend any treatment or surgical procedures to assist such as closing of the sinus? The most essential management for this sinus is appropriate thorough and comprehensive pressure mapping of Jessica's chair and bed, and appropriate provision of weight and pressure distributing equipment such as a ROHO mattress. My understanding is she has adequate equipment, including a weight distributing bed, but this should be carefully reviewed to make sure it is as optimal as could be. Any surgical intervention would have a very high risk of leaving her with a worse situation than she currently has even if it were proceeded with under local anaesthetic. There has been no change in the situation that any surgical intervention would have significant morbidity and real mortality risk for Jessica as was assessed in 201 1. I would absolutely not recommend any surgical intervention for Jessica. 7. Prior to her injury, Jessica used to take baths. She has not yet returned to bathing due to her wound. Based on your assessment of her wound, does bathing remain contraindicated? This is very subjective. My view is that she should have a daily thorough shower of the area which is more practical in a shower/bath situation. Standard bathing would be difficult to transfer her and require direct pressure on the base of a hard porcelain bath which would not be ideal for the pressure area. There is often concern raised about contaminated bath water entering a sinus but given the very small nature of the sinus, this could be mitigated by gentle irrigation and dressing following a bath. My feeling is that a shower/bath rather than a formal submerged bath is the most appropriate approach to toileting for Jessica. 8. Please advise of any other daily living activities that would be contraindicated due to Jessica's wound. Any activity that puts direct pressure on the area of the sinus or involves the area of the sinus being subject to shear during transfer should be entirely avoided, otherwise any activity that Jessica can participate in would be appropriate. 9. Please advise how long you would expect Jessica should be spending in a sitting posture each day? As long as the sitting posture puts no direct pressure on the area of the sinus and as long as she is comfortable, she could sit upright as long as she is comfortable. Given her underlying health issues she is at extremely high risk for developing further pressure areas no matter how well supported she is in the future. The ability for Jessica to sit must be associated with holistic careful assessment of all her pressure needs not only the area which has the existing sinus. 10. Please advise of any ongoing treatment required for Jessica's wound. My advice is ongoing simple daily dressings of the nature or simpler than she is currently having, is all that is required for Jessica's wound. It should be cleaned daily, a small absorbant non-irritating silicone or polyurethane pad dressing with a hypoallergenic or non-irritant margin is appropriate. [52] Despite these reports, no further decision appears to have been made with regard to the qualification contained in of the June 2014 decision. Instead as noted in the introduction further reports continued to be produced both on behalf of the Corporation, wrestling in particular with what was Ms Raine's condition prior to the treatment injury, and I note in particular a report by Sue Field and Kathleen Ardis in October 2014, referring to an Annual Support Reassessment undertaken by David Darling on 24 February 2010 in respect of Ms Raine's pre-injury support needs. Further evidence filed on behalf of Ms Raine included a comprehensive report from Ms Bransgrove and a subsequent report of Ms Sutcliffe supporting the conclusions reached by Ms Bransgrove. Discussion and Analysis [53] This is clearly an extremely complex case. On the one hand the Corporation is legitimately required to ensure that the assistance its provides to Ms Raine is consistent with the legislative framework. This requires establishing Ms Raine's injury related attendant care needs as opposed to Ms Raine's wider needs resulting from her complex medical issues that pre-existed the treatment injury suffered in November 2010. It also requires identifying to what extent provision has been made by both the MoH and CCDHB for different treatment required by Ms Raine. On the other hand on behalf of Ms Raine, Ms Bransgrove sees more broadly the need to take the best possible care of her daughter, regardless of where the funding for that treatment may come from. [54] Despite these broader issues it is apparent that the procedure followed by the Corporation in respect of both decisions did not meet the requirements set out in ss 81 and 84 of the Act set out above. First in relation to the December 2013 decision it is not clear how that decision was reached. As noted at [5] above by the time that decision was finally made the Corporation had received a variety of reports from both Ms Phillips and Ms Powell recommending different amounts of care for Ms Raine's injury related needs, but the Corporation never clearly reconciled the different recommendations made by Ms Phillips and Ms Powell, nor indeed addressed the inconsistencies existing across these reports. [55] In this regard, it is apparent that both Ms Phillips and Ms Powell had difficulties in determining Ms Raine's injury related needs as a result of a lack of information as to her pre-injury condition as to exactly what support she was receiving from both the MoH and CCDHB in respect of her pre-existing health issues. As a result, both Ms Phillips and Ms Powell recommended a "full integrated and comprehensive rehabilitation assessment was required" to "provide a comprehensive 24-hour care plan of all Jessica's needs". This was not done nor did it appear to have even been considered as part of the Corporation's decision making process. [56] In proceeding to make a decision it is noted that there was in fact information available regarding Ms Raine's pre-injury support needs. In particular as noted at [52] above, an Annual Support Reassessment had been undertaken report by David Darling in February 2010, shortly before Ms Raine suffered her treatment injury. Despite the existence of Mr Darling's report it was not made available to either Ms Phillips or Ms Powell, nor was it considered by the Corporation in relation to any of the decisions on retrospective registered nursing care. Indeed it appears to have only come to light when it was quoted in the Field/Ardis report considering Ms Raine's support needs in October 2014. [57] In any event the Corporation's decision-making process is difficult to reconcile with the reports available at the time. Although Ms Phillips had initially recommended 21 hours/7 hours/7 hours for the three periods at issue (see [23] above) she did not in fact take any substantive issue with the hours proposed by Ms Powell (43.75 hours/17.5 hours/14 hours 35 minutes noted at [33] above). Against that background there was clearly no clinical basis for the recommendations of both Ms South and Ms Gower that the registered nursing care hours should be reduced to 14 hours/3.5 hours/2 hours across the three periods, nor were the reductions identified by Ms Smith and Ms Gower the result of any visible exercise of the Corporation's discretion pursuant to clause 14 of Schedule 1 to the Act. Although the decision that resulted from those recommendations (11 February 2013) was subsequently revoked, there is in fact even less information available as to how the Corporation subsequently determined to increase the registered nursing care hours in both the 13 November 2013 decision and the December 2013 decision now at issue. While, as Ms Becroft has noted, in respect of the first two periods the hours finally approved exceeded those recommended by Ms Phillips it is difficult to see any coherent basis for the decision finally reached, given Ms Powell's recommendations and Ms Phillips subsequent comments. [58] Finally, in relation to the December 2013 decision it is difficult to reconcile the 2 hours granted in respect of the third period with the fact that the Corporation through the June 2014 decision has accepted at a minimum Ms Raine is entitled to 5.25 hours ongoing registered nursing care from 21 December 2012, when there is otherwise no evidence before the Court of any significant improvement between 3 August 2012 and 20 December 2012. [59] Taken together and having considered the available evidence carefully I am unable to ascertain exactly how the Corporation made the December 2013 decision and I consider the overall process to have been deeply flawed. [60] The problem with the June 2014 decision is slightly different. In contrast to the December 2013 decision which purported to calculate the total amount of injury related registered nursing care required by Ms Raine across the three periods identified, as noted in [8] above the June 2014 decision was restricted in ambit to "direct wound issues, fever management and documentation" notwithstanding that other injury related needs at issue in the December 2013 decision had also been raised and apparently considered by the Corporation at the time the decision was made. Instead as noted at [49] above the June 2014 decision indicated that further decisions would be made respect of "[Ms Raine's] request for additional registered nursing care hours" although neither party has pointed to any further decision having been made on the issue in the 3 1/2 years since the June 2014 decision was issued. This is clearly an unsatisfactory state of affairs given the medical case review referred to in the qualification to the decision occurred with Mr Wickremesekara within a month of the decision taking place and was followed shortly thereafter with an assessment carried out by Mr Adams. [61] In any event, like the December 2013 decision, and for the same reasons, Ms Phillips continued to grapple with the same issues surrounding a lack of clarity around what were Ms Raines injury related needs. This was clearly apparent with regard to" lifting and transfer" which in her December 2013 report Ms Phillips had noted specifically was "related to wound" (see [38] above) whereas in her April 2014 report while she identified the same amount of hours (14) being necessary, she excluded it from the "total hours related to wound" without providing any detailed reasoning as to why it was no longer wound related other than noting it was "controversial". Ms Phillips likewise reduced the hours specified for fever management between her December 2013 and April 2014 reports without again providing any detailed explanation as to the reason those hours have been reduced from 8 to 1.45, and there is no record of what (if any) consideration the Corporation gave to these issues. It is likewise not apparent from the decision whether the June 2014 decision determined that "lifting and transfer" was not direct wound care, or fell within the matters standing for consideration in subsequent decisions foreshadowed in the qualification. These issues are important, noting in particular Mr Adams in his report explained the need for Ms Raine to avoid "any activity that puts direct pressure on the area of the sinus or involves the area of the sinus being subject to shear during transfer should be entirely avoided", which would clearly seem to indicate that ongoing protection of the wound area during lifting and transfer was of critical ongoing importance. [62] Overall, I am satisfied the June 2014 decision, likewise the December 2013 decision were substantively flawed. In both cases the Corporation owed it to Ms Raine, as an extremely vulnerable claimant, to unequivocally establish Ms Raine's injury-related needs and then clearly articulate the basis of the decision in terms of her support needs. Instead it is clear that both decisions were made without ever establishing clearly what Ms Raine's pre-injury care requirements were or indeed exactly what support Ms Raine was receiving from either the MoH or CCDHB preinjury, or how those needs had been changed as a result of the treatment injury, or indeed whether they were in fact increasing, either as a consequence of the injury or indeed the treatment she was receiving (the constant bed rest and/or the refusal to utilise equipment or support at a level below that of a registered nurse). These issues were all effectively identified by Ms Phillips and/or Ms Powell and were never resolved. Finally the decision-making process itself was chaotic and non- transparent, and almost impossible to comprehend even with the benefit of full hindsight. [63] It is also apparent that notwithstanding the Corporation concedes that Ms Bransgrove raised the issue of the applicable registered nurse charge rate with the Corporation, and information on the applicable rates has (post hearing) been provided to the Court, there is absolutely no evidence before the Court that the Corporation ever turned its mind to the issue of the rates and certainly neither of the decisions, nor indeed the letter of 26 February 2013 (see [28] above) ever addressed the issue raised by Ms Bransgrove regarding the rate at which her registered nursing hours were to be reimbursed. The Corporation's letter of 26 February 2013 did deal with an issue raised by Ms Bransgrove about whether payment could be made through an agency, as this was how payments from the MoH and CCDHB were processed for policy reasons that are not relevant to the Corporation, and that aspect of the decision has not been challenged. Unlike other types of entitlements, the rate payable is not prescribed by statute, the issue of the rate payable appears to be a matter of the Corporation to consider in determining its contribution to Ms Raine. As the Corporation did not, on the basis of the evidence before me, even turn its mind to the issue when it was raised, in a context where Ms Bransgrove was being reimbursed at a different rate for non-injury related care provided to Ms Raine, it was a matter that the Corporation should have addressed as part of its decision, and in the circumstances this amounts to a further significant flaw in both the Corporation's decisions at issue in this appeal. Decision [64] The appeal is allowed. The review decision of 19 June 2015 is quashed and the decisions of the Corporation dated 2 December 2013 and 13 June 2014 are set aside. A new backdated assessment in respect of the registered nursing care hours is to be undertaken for the period between 10 December 2010 and 7 May 2015 which, in taking account of all relevant matters is to: [a] Establish clearly the level of support Ms Raine was receiving from the MoH and CCDHB due to her treatment injury; [b] Establish clearly the ongoing level of support provided by the MoH and CCDHB during the relevant period; [c] Establish clearly Ms Raine's injury related support needs, including to what extent Ms Raine requires registered nursing care; and [d] Determine the appropriate rate at which registered nursing care is to be reimbursed. [65] Unless the Court directs otherwise the Corporation is to make a decision in respect of the new backdated assessment in respect of the registered nursing care hours required in [64] above within four months of the date of this judgment and the decision will have fresh review rights. [66] Leave is reserved for the parties to seek further directions should they be necessary to ensure a new backdated assessment in respect of the registered nursing care hours can be completed in a decision issued within the time specified. If, in the meantime, negotiated settlement is able to be reached without going through the decision-making process set out above, the court is to be advised as soon as possible. [67] In the meantime Ms Raine is entitled to costs. If these cannot be agreed within one month I will determine the issue following the filing of memoranda. Judge L G Powell District Court Judge Solicitors: John Miller Law, Wellington, for the appellant Medico Law, Auckland, for the respondent ACR 212-15-Raine