Austen and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 923
•18 November 2016
Austen and Repatriation Commission (Veterans’ entitlements) [2016] AATA 923 (18 November 2016)
Division
VETERANS' APPEALS DIVISION
File Number
2015/2724
Re
Patricia Austen
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 18 November 2016 Place Sydney The Tribunal affirms the decision under review.
......................[sgd]..................................................
Senior Member J F Toohey
CATCHWORDS
VETERANS’ ENTITLEMENTS – claim by widow – whether veteran’s death related to service – kind of death – whether ischaemic heart disease was veteran’s kind of death – whether ischaemic heart disease hastened death – whether ischaemic heart disease played any real role in pathological changes – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 8(1), 13(1), 120(1), (3) and (4), 120A(3)
CASES
Benjamin v Repatriation Commission [2001] FCA 1879
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Collins v Repatriation Commission [2009] FCAFC 90
Hill v Repatriation Commission [2009] FCAFC 91
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711Repatriation Commission v Law [1981] HCA 57
SECONDARY MATERIALS
Statement of Principles concerning Ischaemic Heart Disease (Reasonable Hypothesis) No. 1 of 2016
Andre Hebra et al, ‘Intestinal Volvulus’, Medscape (online), 20 January 2012
Rachel Nall and Ana Gotter, ‘Hypovolemic shock’, Healthline (online), 28 April 2016
REASONS FOR DECISION
Senior Member J F Toohey
18 November 2016
Background
Mr Jeffrey Austen served in the Royal Australian Navy from November 1944 to April 1946. He died in hospital on 10 May 2014 at the age of 86. His widow, Mrs Patricia Austen claims a war widow’s pension on the basis that her husband’s death was war-caused. The Repatriation Commission has refused her claim and the Veteran’s Review Board has affirmed that decision.
The whole of Mr Austen’s service is operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act). Mrs Austen will be entitled to a pension if her husband’s death was “war-caused”: subsection 13(1). The meaning of “war-caused death” is set out in subsection 8(1) and includes, relevantly, where “the death arose out of, or was attributable to, any eligible war service rendered by a veteran”: subsection 8(1)(b).
The standard of proof
Where a veteran’s death relates to operational service, the standard of proof in s 120(1) of the Act applies, the effect of which is that the Tribunal must determine that Mr Austen’s death was war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. In applying subsection 120(1) the Tribunal will be so satisfied if the material before it does not raise a reasonable hypothesis connecting Mr Austen’s death with the circumstances of his service: subsection 120(3).
The steps to determining whether a hypothesis is reasonable are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal must determine whether the material before it points to a hypothesis connecting a veteran’s death with the circumstances of his service and, if so, ascertain whether there is in force a Statement of Principles (SOP) in respect of his kind of death. A hypothesis is reasonable only if it conforms with an applicable SOP: subsection 120A(3). If so, the Tribunal must then consider whether it is satisfied, beyond reasonable doubt, that the veteran’s death was not war-caused.
If there is no SOP in respect of a veteran’s kind of death, the principles in Bushell v Repatriation Commission (1992) 175 CLR 408 and in Byrnes v Repatriation Commission (1993) 177 CLR 564 apply. The Tribunal will be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination if it is satisfied “beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis”.
The first question to be determined is what “kind of death” Mr Austen suffered. Only once that question has been determined does the question of whether the veteran’s death was “war-caused” arise: Benjamin v Repatriation Commission [2001] FCA 1879.
A veteran’s “kind of death” for the purposes of the Act is the medical cause of death: Collins v Repatriation Commission [2009] FCAFC 90. There can be more than one kind of death: Repatriation v Hancock [2003] FCA 711; Repatriation Commission v Law [1981] HCA 57.
The medical cause of a veteran’s death is a question of fact to be determined on the medical diagnosis and other evidence: Collins (above) at [45]. A veteran’s death certificate is prima facie evidence of cause of death but is not itself determinative: Hill v Repatriation Commission [2009] FCAFC 91 at [61].
The standard of proof in determining the medical cause of a veteran’s death is to the reasonable satisfaction of the Tribunal: s 120(4); and see Collins (above) at [19-20].
Contentions
Mr Austen’s death certificate shows his cause of death as:
1) a) Hypovolaemic shock, hours
b) Midgut volvulus, days
It is agreed that neither cause of death listed on Mr Austen’s death certificate was related to his service. However, he had suffered from ischaemic heart disease since 1987 when he underwent a coronary artery bypass graft. The role that his heart disease played in his death is the central issue in dispute in this case.
For Mrs Austen it is contended that her husband’s ischaemic heart disease and his consequent use of aspirin, combined with other conditions from which he was suffering on the day he died, meant he was unsuitable for surgery for what was a potentially life-threatening, but treatable, condition, and that he died as a result.
It is submitted that there are two “pathways” by which Mr Austen’s death may be connected to his service. By the first, it is said that Mr Austen took up smoking while on service, leading to his ischaemic heart disease, which was a kind of death related to his service. The relevant SOP concerning ischaemic heart disease is No. 1 of 2016. This submission was not pressed before the Tribunal, and counsel for Mrs Austen acknowledged that it was the more “contentious” of the two.
Alternatively, it is said, Mr Austen’s ischaemic heart disease contributed materially to his death from volvulus and hypoglycaemic shock (for neither of which there is a relevant SOP) in that surgery was either delayed, or he was not suitable for surgery, by reason of that disease.
There is no dispute that Mr Austen took up smoking during service or that he had suffered from ischaemic heart disease since 1987. The respondent contends, however, that the medical cause of Mr Austen’s death was as listed in his death certificate and that ischaemic heart disease was not a “kind of death” for the purposes of the Act.
Information before the Tribunal
Mrs Austen and her son, Peter Austen, who was at the hospital on the day Mr Austen died, gave written and oral evidence before the Tribunal. The Tribunal also has clinical notes from Bathurst Base Hospital, where Mr Austen was admitted on the day he died, and reports from his general practitioner of many years, Dr John Schibeci, and from Associate Professor Richard Haber, consultant physician and cardiologist, who reviewed Mr Austen’s records for these proceedings and gave oral evidence.
What was the medical cause of Mr Austen’s death?
Mrs Austen gave evidence that, on the morning of 10 May 2014, her husband was suffering severe abdominal pain. He had had previous episodes of abdominal pain related to a twisted bowel following radiation treatment for prostate cancer in the early 1990s. He had attended hospital on previous occasions and recovered each time with medical attention. As she had done in the past, she called an ambulance, and their routine was for her make her way to the hospital after the ambulance had left.
According to Mrs Austen, her husband was alert and apparently well on the previous day, apart from abdominal pain. Dr Schibeci, whom he saw the previous day, recorded that Mr Austen had constipation but he made no record of abdominal pain, and he noted that Mr Austen was planning to renew his driver’s licence, suggesting that he felt reasonably well.
The timing and sequence of events following Mr Austen’s admission is not altogether clear. Not surprisingly, given what happened over the following hours, neither Mrs Austen nor Peter Austen could recall everything clearly. The precise time of certain events is not clear from the hospital notes because some were written in retrospect. What is clear, however, is that things moved rapidly between Mr Austen’s admission around 7.00am and his death sometime between 1.30pm and 2.30pm that afternoon.
According to the emergency department assessment notes, Mr Austen complained of abdominal pain and had been constipated “for the past week”; he said his abdominal pain felt “like his usual constipation pain”. The clinical notes show that his blood pressure was “normal- 138/75” when he arrived, but it rapidly became unstable. By 9.45am, it had dropped dramatically, he was sweating and had “cool peripheries”, and he had gone into hypovolaemic shock, a condition which, left untreated, can lead to organ failure and death (see: Rachel Nall and Ana Gotter, ‘Hypovolemic shock’, Healthline (online), 28 April 2016). Attempts to maintain his blood pressure with intravenous fluids had little effect.
At some point, Mrs Austen went to call her family. Peter Austen gave evidence that he and his wife arrived at the hospital around 9.30am, although he thought it could have been a bit later. They remained throughout the morning and were present when Mr Austen died. Mrs Austen’s son, Colin, and daughter, Penny, arrived after their father died.
The clinical notes indicate that Mr Austen required surgery but that a CT scan was required to determine the cause of his symptoms before surgery would be performed. Possible diagnoses were a leak in his abdominal aortic aneurysm, a perforated bowel and gastroenteritis. There was some delay in performing the scan while attempts were made to stabilise his blood pressure, and while the machine was calibrated and the results of a creatinine test were known.
A CT scan performed at 11.30am revealed that Mr Austen was suffering from midgut volvulus, or twisted bowel, a condition requiring prompt recognition and treatment before serious complications develop (see: Andre Hebra et al, ‘Intestinal Volvulus’, Medscape (online), 20 January 2012).
The clinical notes show:
Multiple attempts at getting CT abdo-pelvis while normotensive was delayed due to CT scan calibration and pending creatinine result, technicians won’t do scan without result
Dr Pugliesi discussed end of life care with the patient (wife present)
-For fluids, blood products, antibiotics, ionotropes and comfort measures
-Not for MET calls, CPR, defibrillation or intubation
-Not for surgical intervention
-Surgical registrar went through end of life care with patient and family
General surgical registrar reviewed patient
-He discussed case with surgical consultant on, he decided that he was not for surgical intervention before CT scan was performed given co-morbidities, among them [coronary artery bypass surgery] and [abdominal aortic aneurysm] stent
…
CT scan performed
CT scan
-Midgut volvulus
…
Plan as per surgical registrar
1Admit under surgical team for palliation - single room
2Midazolam and morphine infusion
3Supportive therapy
A handwritten note apparently made at 12.50pm indicates that, following the CT scan, there was a “family discussion” during which the progress of the disease was explained, and “advanced medical care” was discussed. Mrs Austen cannot recall this particular conversation but recalls that he husband died within about an hour of a conversation about what would happen without surgery, suggesting that the note was made contemporaneously.
At some point, Dr Eric Pugliesi signed a Plan of Care for Critical Illness – Near the End of Life form. It records that Mr Austen had decided not to undergo “aggressive resuscitative measures” including CPR, intubation and ventilation. The form appears to reflect the discussion concerning end of life care with Mr and Mrs Austen referred to in the clinical notes above. It shows:
Discussed with radiology consultant on case. CT showed midgut volvulus, Diagnosis discussed with patient and wife, [patient] refusing to have operation. [Patient] was aware of the situation and [illegible]. Discussed with Dr [illegible] and team, [patient] is for palliation [illegible] and pain control.
The form does not show the time the discussion was held but it must have been between 11.30am, when the CT scan was performed, and 12.50pm when the clinical note was made.
Mr Austen’s death certificate shows he was pronounced deceased at 2.32pm. As Peter Austen recalls, there was some time between when he died and when the doctor arrived to certify him deceased. The clinical notes show his blood pressure was taken at 1.30pm, indicating that Mr Austen died sometime during the following hour.
The decision concerning surgery
Mrs Austen gave evidence that she was present when several doctors at her husband’s bedside agreed that he needed major surgery but there was “no way” he would cope with it because his heart was so weak and his blood pressure so low. She could not recall details of the doctors’ conversation, and says she was in and out of the room, but it was “obvious” they “were all in agreement” that her husband’s heart condition was the reason they could not perform surgery. It is submitted that, were it not for his heart condition, surgery could have proceeded and, in all likelihood, Mr Austen would have survived.
The respondent submits that the decision not to perform surgery, and Mr Austen’s death a short time later, were not materially affected by his ischaemic heart disease. Further, that Mr Austen himself refused surgery.
It is not clear how lucid Mr Austen was at various times throughout the morning. Mrs Austen says when she arrived she was “amazed” that he was so aware of what was going on. She also recalls that he was “in and out of consciousness”, coherent one minute and “off with the fairies” the next, and deteriorating rapidly.
According to the clinical note made at 12.50pm, a doctor had a “family discussion” with Mr Austen and his wife explaining that the pathology and progress of the disease and that Mr Austen needed “urgent laparotomy to fix the problem”; it was explained that, if not done, the disease would progress and he “might die”. The note records that Mr Austen was “competent [and] alert”; he “refused to have the operation”; he “understood the disease process” and “advanced medical care” was discussed with him and Mrs Austen.
Giving evidence, Mrs Austen acknowledged that her husband did not want surgery because he had had so many operations over the years, and she remembers him saying “no operation”, but she disagrees that he “refused” surgery; rather, he “sort of said he didn’t want it”. She says he was “a fighter” and “probably thought he would get better” as he had on previous occasions. As she recalls, he did say once that morning, that he did not want surgery but it was “a long way down the track”. She thinks she was the only person who heard him say that but she acknowledged there might have been a conversation to that effect when she was not present. As the clinical notes show, Mr Austen said words to the effect of “no operation”.
Peter Austen gave evidence that Mrs Austen was present when he and his wife were asked to speak with two registrars in a conference room. They summarised his father’s condition and explained that he would have been considered a candidate for surgery for the volvulus were it not for his low blood pressure and heart condition; as it was, they had decided to let things “take their natural course”.
Peter Austen recalls this conversation occurring shortly after he and his wife arrived at the hospital but the clinical notes suggest only one conversation along these lines occurred, around midday. It is probable, in the circumstances, that there were several conversations about the seriousness of Mr Austen’s condition. He cannot recall any discussion of his father giving consent or not to surgery. He says it seemed “a foregone conclusion” that his death within the next few days was inevitable. He was not involved in any further discussions with doctors. He could not recall his father having a CT scan.
Associate Professor Haber’s evidence
In a report dated 24 February 2016, written after review of documents which included clinical notes from Dr Schibeci, the hospital’s clinical notes and statements by Mrs Austen and her adult children, Associate Professor Haber stated that as he did not have hospital notes for Mr Austen’s admission, “[he could] only presume that he did not have surgery to midgut volvulus because of his general condition, age and ischaemic heart disease as he seemed so well the day before his death.” He concluded:
[Mr Austen] died apparently as a result of the volvulus of the midgut causing hypovolaemic shock. Considering his ischaemic heart disease he would obviously not be a surgical candidate. One can consider therefore that his age and ischaemic heart disease have contributed to the decision not to operate for the volvulus, but I do not have the hospital notes that such assessment was considered.
Associate Professor Haber went through the hospital notes in detail at the hearing. He gave evidence that, generally, a minor volvulus would not be fatal but was likely to have been so in Mr Austen’s case because he had severe metabolic acidosis (raised white cell count) and was “really sick”. His condition was so serious that it had progressed to hypovolaemic shock and, considering his age, his ischaemic heart disease for which he was on blood-thinning aspirin, and his volvulus, there was a “high probability” that he would not have survived surgery. As he read the hospital notes, Associate Professor Haber said they indicated there was a “high probability” that Mr Austen would die, and the doctors had decided only to make him comfortable.
Asked about the relationship to Mr Austen’s ischaemic heart disease, Associate Professor Haber agreed that, if nothing was done surgically, he would have died as a result of the hypoglycaemic shock resulting from his midgut volvulus; he confirmed that Mr Austen was “unsuitable for surgery”. He gave evidence that, if Mr Austen did not have hypovolaemic shock, if he did not have his heart condition and was not on aspirin, an otherwise healthy man of his age would be operated on “happily these days”. However, by the time the CT scan was done and a diagnosis made, he was he was not a healthy man; he was a “very, very sick man” and “everybody decided it’s a bit late”. He gave evidence that a CT scan would likely have been called for regardless of Mr Austen’s history of heart disease.
Associate Professor Haber gave evidence that Mr Austen apparently came into hospital “in a reasonably good state” but within a few hours it was obvious that something else was happening which wasn’t happening before; he was a surgical emergency and needed surgery as soon as possible but, because of ischaemic heart disease and his stent, and his age, a CT scan was needed to determine what was actually going on before surgery could proceed; by the time the CT scan was done it was too late; but it was the heart disease that stopped them from “jumping in”.
Dr Schibeci’s report
In a report dated 1 September 2014, Dr Schibeci advised Mrs Austen’s then advocate that her husband “died from a small bowel volvulus which had no relationship to his ischaemic heart disease”. He added, however, that “his body’s response to this significant pathological onslaught would probably have been adversely affected due to the fact that he had ischaemic heart disease.
Consideration
In Collins (above), the veteran’s death certificate listed his cause of death as pulmonary embolism. It was accepted that this condition was not war-caused but his widow contended that his ischaemic heart disease, which developed as a result of hypertension caused by his service-related drinking, was one of the causes of his death. There was evidence on the one hand that the heart disease had “little or no impact” on his death and, on the other, that probably contributed to his death in the sense that it occurred hours or a few says earlier than would otherwise have been the case.
Upholding the decision of the Tribunal that ischaemic heart disease was not a medical cause of the veteran’s death, the Full Federal Court said at [82]:
[The relevant provisions in the Act] support the conclusion that the inquiry about the death or the kind of death for the purposes of the VE Act is, in essence, a question of fact about the medical cause or causes of death. It does not support the proposition on behalf of Mrs Collins that there is a legislative intention that any medical condition which hastens the time of death of a veteran by a measurable period, even a short one, where in medical terms another medical condition is clearly the medical condition which accounts for the pathological changes leading to death, is itself a medical cause of death.
At [84]:
For these reasons, we do not consider that as a matter of law any medical condition which may affect the time of death of a veteran by a measurable period, but does not otherwise play any real role in the pathological changes leading to death (which are medically ascribed to another medical condition), is a death (that is a medical cause of death) or a kind of death under the VE Act (emphasis added).
As the Full Court observed, had Mr Collins during his lifetime claimed a pension for ischaemic heart disease, he may have established that disease was war-caused. Even so, however, it would not automatically have followed that Mrs Collins was entitled to a pension following his death; his ischaemic heart disease would still have to be a medical cause of his death.
For the following reasons, I am not satisfied that Mr Austen’s ischaemic heart disease played any real role in the pathological changes leading to the hypovolaemic shock and midgut volvulus from which he died.
The evidence shows that Mr Austen was apparently in reasonable health when he arrived at hospital on 10 May 2014 other than for severe abdominal pain, and constipation over the previous week. Similar episodes in the past had resolved with treatment and there was no apparent reason the same would not happen again. The evidence shows, however, that was not to be. Within three hours he had a condition which Associate Professor Haber thought likely to be fatal, and from which he died approximately four hours later. Whether that condition was present when he arrived or developed subsequently, is not material in this case. There was a “high probability”, according to Associate Professor Haber, that Mr Austen was going to die.
It is not surprising that neither Mrs Austen nor Peter Austen can clearly recall all details of what occurred in the hours before Mr Austen died. However, there is no reason to doubt the hospital records.
The hospital notes indicate that three possible diagnoses were considered, and that a CT scan was needed to confirm a diagnosis before surgery could proceed. I accept Associate Professor Haber’s evidence that a CT scan would have been required whether or not Mr Austen had a heart condition. There is no evidence that Mr Austen’s ischaemic heart disease played any part in delaying the CT scan or that the delay contributed to his death. The hospital notes show that the scan was delayed while attempts were made to stabilise his blood pressure, and until the machine was calibrated and the results of the creatinine tests were known. Nothing in the hospital records support the conclusion that Mr Austen’s ischaemic heart condition played any real role in the midgut volvulus or hypovolaemic shock from which he died. In particular, there is no evidence that it played any real role in the pathological changes involved in either condition.
The hospital notes show that the discussion with the family about Mr Austen’s prospects and end-of life care were had once the results of the CT scan were known. I accept, given how rapidly his condition was deteriorating, that there could have been discussion about whether surgery would be performed and what his prospects were, and I accept that his heart condition could have been referred to. I am satisfied that discussion took place after the results of the CT scan were known. There is nothing in the notes to support the conclusion that Mr Austen’s ischaemic heart disease was a factor. Rather, discussions were about his life-threatening midgut volvulus and hypovolaemic shock.
According to the hospital notes, Mr Austen was competent and alert when he said he did not want surgery. Whether he fully appreciated the implications of what he said, there is no reason to doubt what is recorded in the notes. Whether this is the same occasion “late in the day” when Mrs Austen recalls him saying something along those lines is not clear. Given the timing, it could have been. How much the decision not to perform surgery was on account of Mr Austen’s expressed wish not to undergo surgery, and how much because it had become clear by then that everything was against surgery and he was likely to die, is not clear. However, the hospital records do not support the conclusion that his ischaemic heart disease played any real part in that decision.
As I am not satisfied that ischaemic heart disease was a medical cause of Mr Austen’s death, it is not necessary to determine whether his death was war-caused.
Conclusion
For these reasons I affirm the decision under review.
I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey ..........................[sgd]..............................................
Associate
Dated 18 November 2016
Date(s) of hearing 12 & 13 September 2016 Date final submissions received 7 October 2016 Counsel for the Applicant Mr T Saunders Solicitors for the Applicant Kemp & Co Lawyers Solicitors for the Respondent Mr B O'Brien- Moray & Agnew Lawyers
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