BMMG and National Disability Insurance Agency
[2024] AATA 2985
•29 July 2024
BMMG and National Disability Insurance Agency [2024] AATA 2985 (29 July 2024)
NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/2890
Re:BMMG
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K Buxton
Date:29 July 2024
Place:Brisbane
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.....................[SGD].....................
Senior Member K Buxton
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Access Criteria – Permanence – Disability requirement in section 24 of the Act not satisfied – Early intervention requirements in section 25 of the Act not satisfied – Applicant not having met the disability and early intervention requirements of the Act – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 22, 23, 24, 25, 27, 100
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) Schedule 2, Item 54
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rr 2.5, 5.4, 5.5, 5.7, 5.8CASES
Davis v. National Disability Insurance Agency [2022] FCA 1002
FBJV and National Disability Insurance Agency [2021] AATA 913
JLZT v National Disability Insurance Agency [2022] AATA 541
Mulligan v National Disability Insurance Agency [2015] 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
QDKH v National Disability Insurance Agency [2021] FCAFC 189
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
Re Schwass v National Disability Insurance Agency [2019] AATA 28TMVJ and National Disability Insurance Agency [2022] AATA 2053
SECONDARY MATERIALS
Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth)
National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < (‘The Access Operational Guidelines’)
REASONS FOR DECISION
Senior Member K Buxton
29 July 2024
BACKGROUND
This review relates to a request by the Applicant, a woman in her forties currently residing in Northern New South Wales, made in January 2022, to become a participant in the National Disability Insurance Scheme (‘NDIS’).
The Applicant’s request for access to the NDIS was refused by a delegate of the CEO of the Respondent on 15 February 2022.[1] Following a review requested by the Applicant under subsection 100(6) of the NDIS Act, a delegate of the Chief Executive Officer (‘CEO’) affirmed the earlier decision on 2 April 2022.[2] The delegate was not satisfied that the Applicant met the required disability requirements under section 24 of the National Disability Insurance SchemeAct 2013 (Cth) (‘the NDIS Act’),[3] specifically that the Applicant did not have an impairment which is permanent or likely to be permanent.[4] On 2 April 2022 the Applicant applied to the Tribunal for review[5] pursuant to section 100 of the NDIS Act. The Applicant contends that she meets the access criteria prescribed in the NDIS Act.
[1] T19, p.124.
[2] T1A HB p.9
[3] Ibid.
[4] Ibid.
[5] T1 HB p.1
The Applicant has been diagnosed with the following relevant conditions:[6]
a) Post traumatic stress disorder;
b) Painful bladder syndrome; and
c) Keratoconus.
[6] Respondent’s SFIC dated …
The Applicant requested that the Tribunal determine this review application without the need for an oral hearing. She was not well enough to attend a hearing in person and preferred that the matter not proceed in her absence. The Tribunal was satisfied that it was appropriate to proceed in this way. However, as the Respondent’s consent was also required, and the Respondent refused to so consent, the matter proceeded to a hearing in the absence of the Applicant. The Applicant did not object to this course. This was less than ideal but is the procedural hand the Tribunal is dealt in circumstances where a party does not give its consent, as required by section 34J of the Administrative Appeals Tribunal Act, to dispense with an oral hearing.
The review was lodged over two years ago and has had a complex procedural history. It is instructive to set out key aspects of that procedural history which have affected the state of the available evidence and the timely resolution of this review. In May 2023, when the Tribunal was ready to list the matter for a substantive hearing, it became necessary to determine the interlocutory issue of whether various summons requested by the Respondent should be issued. The Applicant successfully objected to those requests and the review proceeded without access to those documents. As stated in my reasons for that interlocutory decision, the Applicant assumed a forensic risk in seeking to control the evidence available to the Tribunal for the consideration of her substantive review. As can be seen from the reasons that follow, the Applicant has continued to seek to control and limit the evidence available to the Tribunal so that, ultimately, the Tribunal has not been able to reach a level of positive satisfaction that the Applicant meets the access requirements under the NDIS Act. In particular, the evidence as to the permanence of her impairments was inadequate at the time of the hearing and this has not been addressed despite various attempts by the Tribunal to receive further potentially relevant evidence.
An oral hearing took place on 21 and 22 November 2023. Although the Applicant had not been well enough to attend the hearing in November she had not objected to that hearing taking place in her absence. Following those initial days of the hearing the Respondent produced written submissions,[7] which included a summary of the oral evidence from the hearing on which it relied, and the Applicant provided written submissions in response.[8] The Tribunal considered the evidence before the Tribunal at the time and determined that it was not sufficient for the Tribunal to be satisfied that the Applicant met the access criteria. As the Respondent had insisted on an oral hearing, and the Applicant had not appeared in person at that hearing, the Tribunal was concerned to ensure procedural fairness to the Applicant. The Tribunal communicated to the parties that it would benefit from additional evidence from Doctors DS (Psychiatrist), O (General Practitioner) and VW (Consultant Urogynecologist), whose contact with the Applicant was referred to in other evidence but not fully explored, and the intention was to arrange for that evidence to be given in early 2024. The Tribunal took the view that the evidence of those medical practitioners, who had consulted with or treated the Applicant, may assist the Tribunal in relation to the issue of permanence and therefore asked that Doctors DS, O and VW provide either written or oral evidence in the review. Initially, the taking of this evidence was delayed due to the Applicant’s ongoing ill-health until May 2024 when the Tribunal proposed that a further day of the hearing should be listed. At that point, Dr VW indicated that she was not willing to give evidence without permission from the Applicant, and the Applicant refused to provide that permission and indicated that she wished the review to proceed without evidence from Dr FW[9]. Both parties then accepted that Dr DS would not be able to give relevant evidence about the review and Dr O had now retired and was therefore unlikely to be able to give evidence that would further assist the Tribunal. The Tribunal indicated to the parties on 8 July 2024 that it would proceed to finalise the review on the basis of the evidence and submissions provided unless any objection was received by 23 July 2024. No such objection was received. In arriving at its decision, the Tribunal has considered the written submissions of the parties given both prior to and after the November hearing, together with the hearing bundle and the oral evidence taken during that hearing.
[7] Dated 27 November 2023
[8] Dated 4 December 2023
[9] Email Applicant to the Tribunal dated 4 July 2024.
The Respondent accepted, and it is not in dispute, that:
(a)the Applicant meets the age and residency requirements in sections 22 and 23 of the NDIS Act; and
(b)with respect to the conditions listed above, the Applicant satisfies both subsection 24(1)(a) and (d) of the NDIS Act.
The Tribunal notes that the Applicant did not make any substantive submissions to the effect that she met the access criteria through section 25, but the Tribunal has considered this aspect of the Access Criteria, nonetheless. The issues before the Tribunal are, therefore, whether the Applicant meets the disability requirements in section 24 of the NDIS Act[10] and the early intervention requirements in section 25 of the NDIS Act.
[10] when read with Part 5 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘Access Rules’).
For access to the NDIS to be granted on the basis of the disability requirements, a prospective participant must satisfy all the criteria set out in section 24 of the NDIS Act as required by subsection 21(1)(c)(i) of the Act. The Respondent contends that the Applicant does not meet all criteria in section 24 of the NDIS Act, therefore cannot be granted access to the NDIS and the decision under review should be affirmed.[11]
[11] H1, Respondent’s SFIC dated 27 June 2022, at [23] and [24].
For the reasons that follow, the Tribunal has not reached the requisite level of satisfaction, in this case, that the Applicant has met the access criteria in either section 24 (or section 25) of the NDIS Act.
THE ACCESS CRITERIA
The Tribunal has considered this review application based on the provisions of the Act as amended from 1 July 2022.[12] The references to the NDIS Act are to the provisions as amended, where relevant. However, for the reasons set out below, the outcome of the review would be the same whether or not those amended provisions apply in this case.
[12] National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth), Schedule 2, Item 54(1)(b).
To become a participant in the NDIS, a prospective participant must satisfy the access criteria, which are set out in subsection 21(1) of the NDIS Act:
21 When a person meets the access criteria
1A person meets the access criteria if:
(a)The CEO is satisfied that the person meets the age requirements (see section 22); and
(b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)The CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
There is no dispute, and the Tribunal accepts, that the Applicant met the age and residency criteria outlined in sections 22 and 23 of the NDIS Act and the evidence supports such a finding. The issues arising in this case are whether the Applicant has satisfied the “disability requirements” under section 24 of the NDIS Act or whether she meets the “early intervention requirements” under section 25 of the NDIS Act.
The Disability Requirements
There are five mandatory requirements that the Applicant must satisfy in order for her to meet the “disability requirements” as set out in subsection 24(1)(a) to (e) of the NDIS Act (reproduced below).
Section 24 of the Act provide:
24 Disability requirements
1A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
2For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
A consequential amendment to section 27(b) has removed the reference to “psychosocial functioning” in the assessment of reduced functional capacity in subsection 24(1)(c). Therefore, rather than describing psychosocial functioning as a facet of functional capacity, subsections 24(1)(a) and 27(b), when read together, have the effect of including impairment to which a psychosocial disability is attributable as an impairment that will satisfy the first aspect of the disability requirements in subsection 24(1)(a) of the NDIS Act. The explanatory memorandum[13] to the bill introducing these amendments confirms that this interpretation is consistent with the legislative intent.
[13] Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth).
In this case the Respondent has accepted, and the Tribunal finds, that the Applicant’s psychosocial impairments would fall within subsection 24(1)(a) under both the previous and current versions of that subsection. For these reasons, the 1 July 2022 amendments would not lead to a different result in this case.
The Minister may make rules prescribing matters pursuant to subsection 209(1) of the NDIS Act. Relevant to this matter, the Access Rules form part of the legislative scheme. Operational Guidelines written by the Chief Executive Officer of the Respondent also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be considered by the Tribunal unless there is good reason not to do so.[14] The latest relevant Operational Guideline is the Applying to the NDIS (‘the Access Operational Guidelines’)[15] published in June 2023.
[14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634.
[15] National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < (‘The Access Operational Guidelines’).
The concept of an “impairment” as it is to be considered in section 24 of the NDIS Act “is generally understood as involving the loss of or damage to a physical, sensory or mental function”.[16] It is “not merely...a reduction in [a] person’s capacity to do things which an unimpaired person would be able to do”.[17]
[16] Mulligan v National Disability Insurance Agency [2015] 233 FCR 201, [51].
[17] Re Schwass and NDIA [2019] AATA 28, [34]-[35].
The Access Rules provide guidance about when an impairment is permanent or likely to be permanent as is required by paragraph 24(1)(b) of the NDIS Act. Rules 5.4 to 5.7 provide as follows:
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
These provisions are concerned with the permanence of the “impairment” rather than the condition necessarily.[18] Difficulty accessing treatment, including its affordability, does not necessarily mean that the treatment is unavailable for the purposes of rule 5.4 of the Access Rules.[19] In National Disability Insurance Agency v Davis (‘Davis’)[20], Mortimer J, as the Chief Justice then was, stated that affordability was not the only feature determining whether a treatment was “available”, but it was a relevant consideration in determining whether the treatment was available to a particular individual,[21] and “whether a person can afford a treatment will form part of the factual circumstance a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.”[22]
[18] Re Schwass and NDIA [2019] AATA 28, [32], [35].
[19] Ibid, [46]-[47].
[20] [2022] FCA 1002.
[21] Ibid, [138].
[22] Ibid, [139].
Rule 5.4 of the Access Rules requires a person to undertake only “appropriate” treatment so a treatment which might, for example, impose a serious risk to a person’s health is not an appropriate treatment.[23] Rule 5.4 of the Access Rules requires the Tribunal to be positively satisfied of a negative before it can be satisfied of permanency. In other words, there must be evidence before the Tribunal that positively demonstrates that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.[24]
[23] Re Schwass and NDIA [2019] AATA 28, [48].
[24] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), r 5.4.
The Respondent contends that not all of the Applicant’s impairments satisfy the criteria of permanency in subsection 24(1)(b), and that the Applicant does not satisfy the requirements as set out in subsection 24(1)(c) of the NDIS Act as she has not demonstrated that her permanent impairments gave rise to a level of functional impairment that was substantial.[25] The Respondent submits that the Applicant has not met the criteria in subsection 24(1)(e) of the NDIS Act for her impairments, because she may improve her level of functionality if she sought further treatment and therefore has not demonstrated that she is likely to require support under the NDIS for her lifetime.[26]
[25] Respondent’s Closing Submissions, 7 September 2022, [33].
[26] H1, Respondents’ SFIC dated 27 June 2022, [20] and [22].
The early intervention requirements
Section 25 of the NDIS Act states:
25 Early intervention requirements
(1) A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmentaldelay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirementsif the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The criteria set out in each of sections 24(1) or 25(1) of the Act are cumulative. All of the requirements in either sections 24(1) or 25(1) of the Act must be met for a person to become a participant in the NDIS.
EVIDENCE
The evidence before the Tribunal includes the following:
·written statements of lived experience of the Applicant;[27]
·various medical notes and correspondence which provided background, rather than current information, about the Applicants impairments and
·medical evidence
[27] T23, p.133, HB, p.284
As mentioned above, earlier in these proceedings the Respondent requested that the records of various hospitals, clinics and medical and allied health professionals be summonsed in order that further relevant evidence may be made available to the Tribunal. The Applicant successfully objected to the issue of those summonses. The reasons for the Tribunal’s decision not to issue the summonses included the following passage:[28]
[18] In the particular circumstances of this case, the Applicant wishes to proceed to a determination of her review application without relying upon any evidence that was not available to the original decision maker and to the reviewer. In her review application, the Applicant indicates that she relies on the evidence of her general practitioner. There is no evidence before the Tribunal, and there was no evidence before the delegate or reviewer, from an expert urologist going to the issues now before the Tribunal for determination and, in particular, going to permanence, compliance with treatment and outcomes. If the Applicant wishes to assume the forensic risk of proceeding to determination of her review without relying upon any additional evidence, that is a decision that should be respected. Section 17A of the NDIS Act informs the conduct of the CEO (and the Tribunal, standing in its shoes) including through the principle that people with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives. It is open to the Tribunal to facilitate the choice of an Applicant to conduct their case as they see fit.[29]
[19] In MDCT and National Disability Insurance Agency[30] the Tribunal made the following observation as to the potential consequences of such forensic risk in the context of considering requests that can be made under the Act for the purpose of gathering information about issues relevant to a reviewable decision:
An unsurprising natural consequence of refusing a request to gather further such information may be that, in some cases, the decision-maker will conclude that it does not have sufficient information to approve particular supports sought by the participant be included in the plan. On review, the consequence of an applicant continuing to refuse to consent to the gathering of certain evidence may lead the Tribunal to conclude that it does not have sufficient information to determine that particular supports sought to be included in the plan are reasonable and necessary and should be funded by the NDIS. It may therefore be in the interests of an applicant for review to participate in the gathering of any relevant evidence.[31]
[28] BMMG and National Disability Insurance Agency [2023] AATA 1136 (10 May 2023)
[29] See discussion in TMVJ and National Disability Insurance Agency [2022] AATA 2053, [5]–[6].
[30] [2020] AATA 6036.
[31] Ibid, [25].
The Applicant was, therefore, well aware of the forensic risk of proceeding with her review application without expert evidence from a urologist or urogynecologist and adequate evidence going to permanence, compliance with treatment and outcomes. That evidentiary lacuna was not addressed by the Applicant before the hearing and the Applicant did not provide a compelling explanation for the absence of this evidence. The Applicant also declined to give permission for the Tribunal to receive oral or written evidence from Dr VW, the only urogynecologist with whom she had consulted in recent years, instead asking the Tribunal to accept the Applicant’s evidence that Dr VW had stated that her conditions could not be treated or cured. The oral evidence that was given during the hearing by other treating practitioners did little to improve the written evidence. If anything, the evidence of the Applicant’s general practitioners, on which she wished to rely, was even less reliable once the disclosures were made by two doctors that they had not satisfied themselves as to the permanency of the Applicant’s bladder condition and had effectively produced letters for the Applicant in terms that she had requested. The evidence of two general practitioners, Dr CL and Dr C, bore such a striking similarity on this issue, despite there being no connection between those witnesses, that it is unlikely to have been concocted by them. The Tribunal has therefore accepted that evidence despite the Applicant’s strong urging to the contrary. However, the central issue Applicant’s case, and the reason that the Tribunal has not been able to reach a level of satisfaction that the access criteria are met, is the result of the Applicant’s failure to engage.
This is not a criticism of the Applicant. There may be good reasons for the Applicant’s decision to proceed in this way. Her history of Trauma and diagnosis of PTSD provide some insight, and her physical health conditions assist to colour the picture. However, In circumstances where the Applicant objected to summonsed material being provided to the Tribunal, did not follow the recommendations of her treaters to engage with a specialist urologist or urogynecologist and a psychiatrist, did not consistently engage with general practitioners and psychologists and frequently ended those clinical relationships, and refused permission for a specialist to give evidence to the Tribunal, the forensic risk assumed by the Applicant has been realised. The Tribunal has not reached a level of satisfaction that the access criteria have been met in this case.
Evidence of the Applicant
The Applicant did not participate in the hearing. She had provided information about her lived experience in statements and documents included in the hearing bundle. In summary, her written statements of lived experience set out the impairments that the Applicant experiences.
The Applicant stated that she was diagnosed with interstitial cystitis/painful bladder syndrome (IC/PBS) in 2007.[32] The Applicant stated that the symptoms stemming from this condition began in 2005, before worsening to the point of becoming “very debilitating” in May 2006.[33] The Applicant had a urodynamic test conducted by Dr R, and a cystoscopy performed approximately 6 weeks later,[34] approximately six weeks after which the Applicant stated that Dr R informed her that she had a version of IC/PBS which he had ‘never seen before’.[35] The Applicant claimed that Dr R showed her a picture taken during the procedure which displayed the inflammation of the bladder, although the Applicant was unable to obtain this photograph or provide any evidence in relation to the existence of such a photograph.[36] Furthermore, the Applicant was unable to obtain any direct records of the diagnosis or procedures allegedly conducted by Dr R.[37] Dr R did not give evidence at the hearing.
[32] HB, p. 136.
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] Ibid.
[37] HB, p. 135.
The Applicant produced a letter from Dr W dated 29 January 2008, which stated in full:[38]
“This is to certify that [The Applicant’s] condition, Chronic Interstitial Cystitis has been fully diagnosed, treated and stabilised since her cystoscopy on 2nd June 2007.”
[38] HB, p. 29.
The Applicant does not have a copy of the original diagnosis or scans produced by Dr R. Her explanation for her inability to obtain any direct records of the diagnosis and/or procedures conducted in 2007 primarily related to the period of time which had lapsed between the time of the procedures and subsequent diagnosis, and the time at which she attempted to obtain these records.[39] The Applicant submitted that Dr R informed her that there were no known treatments for this condition, and that muscle relaxants and pain relief were the only viable options available to the Applicant to manage her symptoms.[40] The Applicant also submitted that Dr R informed her GP at the time that her condition was “permanent, fully treated and stable”.[41] The Applicant also submitted that her condition has since been labelled by both Dr O and Dr C as ‘permanent’ in nature.[42]
[39] HB, p. 135.
[40] HB, p. 136.
[41] HB, p. 137.
[42] HB, p. 132.
Throughout her written evidence, the Applicant has reiterated the ‘severe’ and ‘rare’ nature of her condition as compared to others who are diagnosed with IC/PBS, although other than her assertions to this effect there is little evidentiary basis to support these claims.[43] The Applicant submitted that the condition and symptoms of others with IC/PBS are often influenced by poor lifestyle choices such as the consumption of alcohol, caffeine, and sugar, and that once these influences are eliminated their condition improves dramatically.[44] The Applicant stated that she has eliminated each of these from her lifestyle since the start of her diagnosis and that her condition has not improved.[45]
[43] HB, p. 134.
[44] HB, p. 139.
[45] Ibid.
The Applicant stated that her general practitioner contact Dr VW, a urogynecologist, to “ask for confirmation that there were no rumours of treatments in the near future or even currently that had gone unheard of” and stated that “there was confirmation that there were no treatments available, only pain medication”.[46]
[46] HB, p. 148
The Applicant stated that Dr W ‘indirectly’ stated that she would only diagnose the Applicant’s condition as permanent, stable and fully treated if another cystoscopy was performed.[47] The Applicant repeatedly submitted that she is not willing to undergo a cystoscopy to potentially assess her condition.[48] The Applicant provided a number of reasons for this, including a lack of research in regard to safety of the procedure, the pain caused by the procedure, and the potential financial burden.[49] The Applicant also submitted that the procedure ‘flared the condition up’ and caused irreversible inflammation, referencing this as one of the key reasons she is not open to having the procedure, although it is not clear if the Applicant was provided with medical evidence to substantiate this claim or if it is anecdotal in nature.[50] Furthermore, the Applicant stated that she would likely only undertake this procedure if it were a life-threatening situation, such as potential tumours or bladder cancer.[51] The Applicant stated that, during that conversation, Dr CL agreed that her diagnosis had been established and that there was no need for a further cystoscopy, although the Applicant concedes that Dr CL has no recollection of such a conversation.[52] Dr CL’s evidence about these interactions differs from that of the Applicant and is set out below.
[47] HB, p. 289.
[48] HB, p. 139.
[49] Ibid.
[50] HB, p. 288.
[51] HB, p. 139, 299.
[52] HB, p. 299.
The Applicant stated in her evidence that since the time of her diagnosis, no pain medications have been effective in alleviating her pain symptoms.[53] Although the Applicant has also submitted that at least some of the pain medications available contained an ingredient to which she was allergic, a fact which she claims was identified by Dr CL.[54] The Applicant is consistent throughout her evidence in the assertion that there are no known treatments for her condition as it pertains to IC/PBS, including submissions that she contacted various specialists, via their receptionists, all of whom informed her that were no known treatments or prospects of treatment options in the future.[55] However, the Applicant conceded that she did refuse an injection suggested by Dr CL aimed at treating a potential overactive bladder.[56] She provided myriad reasons as to why she refused this potential treatment option, including her belief that the ‘overactive bladder’ condition had no relation to her condition, required travel distance, petrol costs, and intermittent border closures, although the Applicant also conceded that she continued to refuse the treatment once the border had reopened.[57] The Applicant stated that as a result of her bladder condition she has an urge to use the bathroom every 10-15 minutes and that this makes participating in social situations and generally going into the community a very difficult experience.[58]
[53] HB, p. 286.
[54] HB, p. 308.
[55] HB, p. 307.
[56] HB, p. 309.
[57] Ibid.
[58] HB, p. 140.
The Applicant stated that she is unable to work for a number of reasons, including a constant need to use the bathroom, concentration issues stemming from pain, potential exacerbation of PTSD symptoms, and vision problems stemming from her eye condition, keratoconus.[59] The Applicant stated that her keratoconus renders here unable to read or write very well for extended periods of time.[60]
[59] Ibid.
[60] Ibid.
The Applicant stated that she deals with a range of PTSD symptoms including disassociation, reliving trauma, scattered and racing thoughts.[61] The Applicant stated that she used to contact a hotline to get support for her mental anguish, but has been deemed a ‘regular caller’ and has been limited to 20 minutes once a week.[62] Further to this, the Applicant stated that she would often be traumatised by having to deal with different responders on the hotline and having to retell her story.[63] The Applicant did not specify in her evidence which hotline she utilised.
[61] HB, p. 142.
[62] HB, p. 141.
[63] Ibid.
Dr CL
Dr CL, General Practitioner, completed the Access Request Form, dated 1 March 2023, and subsequently prepared a letter, dated 3 July 2020, in support of the access request. These documents contained the following information:
·The Applicant’s primary disability is an uncommon condition called Painful Bladder Syndrome. The Applicant has a particularly severe version of it.
·In the access form Dr CL noted that surgery was a possible treatment for Painful Bladder Syndrome.
·In the 3 July 2020 letter Dr CL stated that the Applicant had attended a urogynaecologist and this appointment confirmed that the Applicant’s condition is permanent and there is nothing that can be offered that would remedy her condition.
Dr CL provided a further statement dated 16 November 2023 which challenged some of the factual claims made by the Applicant both about her conditions and about Dr CL’s views on treatment. The Applicant responded to this further statement in writing, prior to the hearing, challenging both Dr CL’s character and her reliability as a witness.
During the hearing, Dr CL was cross-examined about her various statements and provided the following additional information:
a)The information available to her about the Applicant’s conditions was from self-reporting by the Applicant.
b)The Applicant reported to her that she had obtained a diagnosis of PBS and was receiving the Disability Support Pension for that and was seeking NDIS support for that and other conditions Anxiety, Depression and PTSD, keratoconus.
c)Dr CL stated that it had not been her idea for the Applicant to apply to the NDIS. The Applicant had decided to apply to the NDIS as she needed support around those conditions. Dr CL remembered cautioning the Applicant that if everything that could be done for those conditions had not been done she would not be successful.
d)She reflected, when stating that there was nothing that could remedy the Applicant’s condition, that this was dependent upon the definition of the work “remedy” and whether this meant to fix completely or improve function.
e)Dr CL stated that the Applicant’s PBS could potentially improve if she investigated and undertook bladder removal surgery. Further, the Applicant’s mental health care options were not exhausted and she could have been availing herself of other treatment. She was uncertain about the Keretoconus with which she was unfamiliar but she relied on Applicant’s statements that she needed expensive contacts and maybe surgery.
Dr CL recalled that she had reached out to urological societies on behalf of the Applicant and arranged for the Applicant to see Dr T, urologist, at the Gold Coast Hospital and also contacted other urologists and urogynaecologists. She had considered that a female doctor may make the Applicant more comfortable. When she explained to Dr VW, a female urogynaecologist, the Applicant’s lack of trust in people and feelings of having been let down, Dr VW agreed to conduct a telehealth appointment with the Applicant in the presence of Dr CL. Dr CL recalled that, during telehealth consultation, Dr VW was reassuring and optimistic and stated that, whilst she had many patients with severe condition, none were disabled and she assured the Applicant she could help. Dr VW was willing to see the Applicant without fee in her private rooms. She suggested potential treatments including intravesticular bladder infusion, use of a Voltaren suppository and posterior nerve stimulation.
Dr CL was uncertain whether the Applicant had tried the suppository but recalled that she was unwilling to try any other proposed treatments on the basis either that the treatment wouldn’t work or she had already tried the treatment or she felt her case was too severe for it to work effectively.
When asked what she meant when she stated, in her letter dated 3 July 2020,[64] that the Applicant’s condition was permanent Dr CL stated that she meant that there is no cure and that she did not mean that in the ”more narrow definition” of there being “no way to remedy the symptoms”. Dr CL stated that she was aware that Dr VW was optimistic about improving function and pain levels and accepted that there was an inconsistency between the information from Dr VW and her letter dated 3 July 2020, but that it was not her intention to be misleading. She had interpreted “remedy” as “cure” although there were ways to improve the Applicant’s condition. The Applicant had asked for these words in the letter in particular. She accepted that her letter was misleading by phrasing it the way that she did but stated that it was not her intention for 3 July 2020 letter to be misleading Dr CL stated that she thought that she was being circumspect without being misleading, but on refection the letter reads as more supportive that she had intended. Dr CL stated that her views were more accurately expressed in the request for access than in the 3 July 2020 letter.
[64] T8 HB p.42
Dr CL expressed surprise that the focus of the Applicant’s access request was on the PBS as her recollection was that the Applicant should focus more on her mental health issues as these were serious. As to the Applicant’s psychiatric conditions, the Applicant had told Dr CL that she was diagnosed some considerable time ago with anxiety, depression and PTSD and panic attacks. During long appointments, the Applicant spoke to Dr CL about her mental health and how it pertained to pain she was experiencing. Dr CL described the Applicant as resistant to treatment for these conditions, including being concerned that medications would cause side effects. She had trouble finding a psychologist that would be qualified and suitable to treat her and considered that psychologists would be too traumatised and overwhelmed by her trauma and many mental health specialists were not sufficiently trauma informed. As a result, the Applicant was self- managing these issues and, as her GP, it fell to Dr CL to assist the Applicant to manage and keep mental health from deteriorating.
Dr CL referred the Applicant to a psychiatrist, Dr DS, in mid-2020 but did not think that she had attended. Dr CL noted that the treatment options for the Applicant’s mental health issues potentially included medication and therapy and stated that outcomes of therapy can be significant outcome if there is a substantial mindset. She described this as “a process” and expressed hope for the Applicant but also noted that the Applicant had a difficult and traumatic childhood and traumatic relationships as an adult and that attachment issues can arise in childhood. When she referred the Applicant to Dr DS she considered it possible that Dr DS may diagnose the Applicant with a personality disorder and that such a diagnosis may indicate the reason for a lack of success in treatments to date.
Dr C
Dr C, General Practitioner, treated the Applicant from April to September 2020. He provided a letter of support dated 5 September 2020[65] indicating that he had been the treating doctor for the Applicant from April 2020. The letter provided a number of pages of detail as to the Applicant’s diagnoses of PBS, Keratonocus and Depression, Anxiety and PTSD, and noted that these conditions were life long, permanent and fully treated. The letter contained various statements as to why treatments suggested had either already been unsuccessfully trialled, that they were contra-indicated by the Applicant’s past trauma or that they were not reasonably accessible.
[65] T12 TB 111
During cross-examination he stated that:
a)His letter, dated 5 September 2020, was not entirely written by him. The letter reflected the Applicant’s difficulties as conveyed to him by the Applicant but all of the factual statements in it were provided by the Applicant. He stated that “most of the words and the concept of the letter were hers”.
b)Dr C could not recall having had any in-person contact with the Applicant and had not, therefore, actually seen her to assess her difficulties. He recalled having had between five and eight telehealth consultations with the Applicant about three years ago.
c)He was not able to assist the Tribunal with his recollection of a number of aspects of the Applicant’s care as he was now at a different practice and the Applicant refused to give her consent to have her notes transferred to his practice from her previous GP so that he could review them before, or access them during, the giving of his evidence. Understandably, he stated that he had seen many patients since then and could not clearly recall some detail.
d)He stated that he was aware from reading available letters and information that the Applicant had been diagnosed with PBS by Dr R. He did not recall if he read the diagnosis or information that another person had diagnosed this condition.
e)He was not aware who had diagnosed the Applicant with depression, anxiety or PTSD and was not able to confirm those diagnoses but was treating the Applicant for symptoms around PBS and her anxiety-based symptoms.
f)The conclusion expressed in his 5 September 2020 letter, that the Applicants conditions were lifelong, permanent and fully treated were based on information available to him at the time. He understood that “fully treated” meant that is all the normal treatments had been applied to her condition. He stated that he relied on information from the Applicant to form his conclusions and he did so having had regard to his role, as a treating practitioner, to believe and assist patients.
g)He did not recall speaking directly to Dr VW but thought that the Applicant told him she had seen her. Dr C was aware that Dr VW had suggested she undergo a cystoscopy but he understood that she had already had one and didn’t want to have another. He was aware that Dr VW had also suggested posterior neurotibial nerve stimulation.
h)He noted that further surgery was not recommended in recognition of the physical and emotional trauma reported by the Applicant in previous similar procedures. This recommendation was based on the information available to Dr C that she had confirmation of diagnosis and that she had found the cystoscopy very traumatic and didn’t want to go through it again.
i)He did not recall having seen the results of an ultrasound of the Applicant’s bladder. He stated that, if a scan showed no abnormality of the bladder wall this was not necessarily determinative diagnostically. However, if the Applicant had a normal ultrasound but with ongoing symptoms then he would recommend a cystoscopy for further investigation. Until the cystoscopy no further investigative step was available. Dr C stated that this could take place with the patient awake or under partial sedation but could be invasive and traumatic. He stated that this could possibly be triggering even if under general anaesthetic.
j)In terms of potential treatments, Dr C noted that he did not make the diagnoses of PTSD, anxiety, depression but accepted these as reported by the Applicant and noted that the Applicant’s anxiety and low mood were observed and, therefore, the diagnoses of anxiety and depression were evident. Treatments for those conditions could include psychological therapy, medication and, for PTSD, a combination of CBT and trauma-based therapy and a variant of anti-anxiety and anti-depression medication. Dr C did not refer the Applicant on a mental health plan as she had already seen a psychologist. Dr C had no recollection of the Applicant having seen a psychiatrist.
k)In terms of recommended treatments for PBS, Dr C accepted that if Dr VW and Dr CL and recommended steroids, nerve stimulation (PTNS) and voltaren suppositories it would be reasonable to try these if they had not yet been trialled. He noted that any infusion would involve a cystoscopy and notes that any psychological impact of this should be considered. He noted that suppositories were self-administered and that this would be not at all unreasonable to trial. He also noted the potential for difficulties in accessing PTNS nearby to the Applicant.
Dr O
Dr O was the Applicant’s general practitioner until she retired from that practice at some time around 2022. She prepared various supportive documents for the Applicant but was not available to give evidence during the hearing. The Tribunal may have benefitted from clarification of her written statements by the adducing of oral evidence from Dr O but she has retired from practice and was not available to do so.
Dr O was first consulted by the Applicant in 2021 and, on 13 August 2021, she prepared an Access request form for the Applicant.[66] In response to a question on the form about current treatment of impairments, the form was endorsed with the handwritten words “no treatments available. Nor options for further treatment” and, in relation to a cystoscopy in 2007, with the handwritten words, “treatment exacerbated symptoms”.
[66] T10, HB, p.42
Dr W
On 29 January 2008 Dr W, a general practitioner, prepared a letter to Centrelink in which he stated, “This is to certify that the Applicant’s condition of Chronic Intersitial Cystitis had been fully diagnosed, treated and stabilised since her cystoscopy on 2nd June 2007”. Dr W did not give oral evidence at the hearing.
The Applicant submitted that an expert report related to her PBS was sighted by Dr W and that this letter “confirms” this. In fact, the full text of the letter is set out above and does not refer to any expert opinion or report.
Mr F
Mr F, Optometrist, prepared a letter dated 19 June 2020[67] which stated that the Applicant had mild bilateral keratoconus which is a disease of the cornea and that her options were to wear spectacles or have custom contacts or to pursue laser surgery.
[67] TB 38
Mr F explained during the hearing that Kerotoconus is a genetic degenerative condition of the cornea and typical onset is between the teenage year to age 30. It is a progressive condition but can, in some cases, stabilise. He explained that, from a typical thickness cornea at birth, cornea degeneration progresses such that it becomes too thin and distorts in a way that is not uniform and that this creates a non-uniform optical surface. The effect of Kerotoconus is irregular (not uniform) blur and because of the irregularity is a condition not as easily corrected with spectacles. The type of blur experienced may be asymmetrical blurring one side, with streaks visible from an image or halos or rings around light. Patients may experience the visual symptom of “ghosting” or multiples of images.
Mr F stated that the Applicant’s Kerotoconus condition was mild at that time of her last consultation with him in 2021. She had the condition but at the mild end of the spectrum. He treated the Applicant with custom gas permeable contact lenses and stated that these assisted with her symptoms but that, even after the filling of the gas permeable contact lenses she still had four times the blur in her eye’s ability to focus even after correction with glasses, and he explained that a mild version of the condition still means that the patient is are enduring more blur that the average person.
Dr F stated that the treatments for the condition included:
a) Spectacles;
b) Collagen cross linking in patients with a progressive version, where progress can be halted using Vitamin B and UV lights. However, he noted this was not indicated for the Applicant as she was not, at the time, a progressive patients but she her condition was stable;
c) Corneal transplant, but this invasive procedure was the last option for patients with Kerotoconus and was not recommended unless it was a serious case, where there was significant scarring or where other treatments not indicated. He would not recommend this option in the Applicant’s case;
d) Contact lenses; and
e) Laser correction.
Mr F saw the Applicant in 2021 to fit some gas permeable contact lenses. He made some custom rigid lenses for the Applicant and afterwards went through adjustments to optimise the vision. When her optimum adjustment was reached the Applicant informed Mr Forest that she felt vision had improved but still seeing ghosting or double imaging. Scanning confirmed that there was still some blur even with contact lenses. Mr F stated that, with neurological adaptation, the Applicant would be able to adjust and live with those symptoms. He offered the Applicant a refund on the lenses if she wished but noted that the Applicant did not return the lenses or accept the refund. He has not treated her since and therefore did not know if she had adapted or not. The lenses cost $1380 and had a two-to-three-year lifespan.
Mr F has received a report dated 8 July 2022 from Dr L, an ophthalmologist specialising in cornea and glaucoma surgery. That report recommended continuing with the contact lenses and seeking the opinion of a cornea surgeon if the Applicant wanted to pursue another option.
As to the Applicant’s functionality, Mr F stated that the Applicant, with her age and short sightedness, would need reading glasses anyway and required reading glasses over her specialised contact lenses. He stated that, with spectacles alone, the Applicant would find difficulty with close work. Her two different eye prescriptions may make her spectacle- wearing difficult and make her dizzy. However, with the contact lenses, he stated that the Applicant’s ability to read should be reasonable; not optimal but adequate. With her contact lenses, and with reading glasses as needed, her functionality should be reasonable. If her condition were to deteriorate the procedures recommended to remedy the condition are publicly available in Queensland, but with whatever limitations or wait times may be imposed by the public system for ophthalmology services.
Mr D
Mr D, Psychologist, was the Applicant’s treating psychologist for a period during 2016 and a further period in 2019. He prepared a letter dated 19 June 2020, in which he stated, "ongoing provision of mental health support is indicated while treatment options are explored and applied to address her pain experience."[68]
[68] TB 39
During the hearing, Mr D was cross-examined and provided the following evidence during cross examination about his treatment of the Applicant:
a)The Applicant had been referred to him through NSW Government Victim Services Programme. He had not been provided with background information about the Applicant. However, given that the purpose of initial consultation was a victims’ services referral he acted on the assumption that he had been referred a person who had been exposed to alleged acts of violence.
b)The initial consultation was for the purpose of obtaining an understanding of the impacts of trauma on the Applicant. It was not his role to undertake a formal assessment or diagnosis of the Applicant and he was not aware of any such diagnoses. The Applicant made some reference to medications at some point but medication did not form part of Mr D treatment of the Applicant.
c)During 2016 Mr D had 16 sessions with the Applicant between June to August. At the final of those sessions Mr D noted that treatment success was poor and that it had been difficult to treat the Applicant successfully. She was highly protective and directive in the sessions. It had been a difficult to build a clinical and therapeutic relationship and the Applicant found it difficult to engage with trauma material and to feel safe in that process. Mr D stated that a lot of treatment time was spent with him regulating the Applicant. After a final session on 26 August 2016 the Applicant did not make further appointments or contact with Mr D at that time.
d)Appointments resumed in 2019 when the Applicant was still dealing with her physical health issues. Treatment resumed, including the Applicant wanting to learn more about the impacts of trauma and Mr D provided psychology services in 20 sessions in 2019 from early January to late July. Mr D had concerns about the Applicant’s safety and risk of self-harm. However, he did not refer the Applicant to another practitioner as she had engaged with Mr D and he saw that as a helpful protective factor. He did consider that referring might have been helpful but, on balance, did not refer to maintain the connection. The Applicant was very protective of herself and how her information was handled and who was engaged in her care. He considered, though it was a delicate balance, against bringing other supports and did not feel he had to schedule her because of risk of self-harm. After the final session on 25 July 2019 the Applicant did not re-book for any further sessions.
Mr D considered that a personality disorder was potentially indicated given the consistent frustration and stress exhibited by the Applicant about her difficulties with other people including in friendships, intimate relationships, engagements with hospitals, prior therapists, etc. However, conscious of the benefit to the Applicant in maintaining the trusted clinical relationship, Mr D did not refer the Applicant to another practitioner for further assessment.
Ms DK
Ms DK, Occupational Therapist, prepared a report dated 21 August 2020. Ms DK noted the Applicant’s reporting of various difficulties and noted the following diagnoses from the patient health summary provided by Dr CL: impairments: Post Traumatic Stress Disorder (PTSD), anxiety and depression diagnosed in 2004, PBS diagnosed in 2009 and Keratoconus in the right eye diagnosed in 2010.[69] Ms DK undertook a functional assessment and observed that the Applicant was significantly impacted on a day-to-day basis across several areas arising from her impairments. Ms DK did not give evidence at the hearing.
[69] T11, HB p.104
Ms E
Ms E, counsellor, prepared a letter dated 1 November 2021[70] in support of the Applicant’s request for access. In that letter she stated that she provided therapeutic services for the Applicant and described the Applicant has having been assessed with the following symptoms:
a)Debilitating physical pain and discomfort which inhibits her ability to be in locations outside her home without easy access to a restroom;
b)Social isolation and withdrawal;
c)Chronic symptoms of depression, anxiety and general low mood as a result of complex health conditions.
[70] T17, HB, p122
She also noted that the Applicant had reduced capacity to:
d)engage in the community;
e)access and engage with health-related appointments on a regular basis (which can become overwhelming and distressing).
In her letter, Ms E stated that she wished to “advocate” for the Applicant to be considered for the NDIS due to her complex health issues.
During the hearing, Ms E stated that the 1 November 2021 letter had been requested by the Applicant attesting to the conditions they had together discussed in sessions. Those sessions began in June 2020 and ended with the end of the therapeutic relationship in September 2023. The Applicant self-referred to the practice looking for support and Ms E took her call. As to diagnosis of PBS, this information was part of a bundle of medical material provided by a previous case worker, Rebecca, with whom the Applicant had been linked.
During the hearing, Ms E provided the following further evidence in cross-examination:
a)Her treatment and sessions with the Applicant were of a similar modality to that of a psychologist. It is a Psychiatrist that would prescribe medication but the Applicant did not was to pursue this treatment.
b)The Applicant provided various self-reported information about her physical conditions, including about blood in her urine, and her GP’s management of her health care.
c)The Applicant’s PTSD diagnosis from 2004 was confirmed by GP records and the diagnosis of Kerotoconus was also listed on Dr M GP records.
d)The treatment was funded under NSW Department of Justice to provide victims with access to various therapies to help re-process some of the traumatic experiences. She noted that the Applicant has been through EMDR/ resource therapy (advanced ego state) and acceptance and commitment therapy.
e)The treatments ended with a breakdown in the therapeutic relationship. The Applicant also experienced a relationship breakdown with her General Practitioner, Carlotta, from the Brightside clinic around September of this year and had become concerned that various organisations were working against her.
Dr DS
Dr DS is a psychiatrist to whom the Applicant was referred by her General Practitioner.
The documentary evidence was unclear as to whether the Applicant had engaged with Dr DS or been treated by him and, following the initial days of hearing in November 2023, the Tribunal sought clarification of this by way of the adducing of evidence from Dr DS. When this prospect was raised by the Tribunal in correspondence with the parties the Applicant responded to the effect that Dr DS was “irrelevant, as not a practitioner I saw for more than ten minutes. A failed attempt, as not able to assist me.”
Dr VW
Dr VW is a urogynecologist to whom the Applicant was referred by her General Practitioner, Dr CL. She has not produced a written report but there is some written evidence before the Tribunal that she had a telehealth consultation with the Applicant in 2020 in the presence of Dr CL. Dr CL’s evidence about that consultation is set out above.
The Applicant’s written evidence is to the effect that Dr VW stated that there were no treatments available to her for PBS.
This differs from the evidence of Dr CL, who recalled that Dr VW was reassuring and optimistic and stated that, whilst she had many patients with severe condition, none were disabled and she assured the Applicant she could help and suggested a range of potential treatments.
The conflict in the evidence is critical to the question before the Tribunal and could have been simply resolved by further evidence from Dr VW. The Applicant refused to give the permission required by Dr VW to give evidence to the Tribunal. It is open to the Tribunal to conclude from this that the Applicant was aware that Dr VW was not likely to give evidence that would corroborate her recollection or that was favourable in her review. This is a forensic risk taken by the Applicant which has left the Tribunal in a position where it concludes that it is more likely than not that treatments options were available to the Applicant in relation to PBS. There is no evidence that the Applicant has pursued such treatments.
Consideration
The Applicant has identified the following conditions as relevant to her access request:
(a)post-traumatic stress disorder;
(b)painful bladder syndrome; and
(c)keratoconus.
The question for the Tribunal in this review is whether the Applicant meets the access criteria, by reference to the requirements of sections of Chapter 3, Part 1 of the NDIS Act and having regard to the available evidence. In this regard, I respectfully adopt the following reasoning of Member Webb in JLZT and National Disability Insurance Agency: [71]
“…the statutory question requires, inter alia, assessment of the person’s impairment or impairments. The requirements for an access request are set out in s 19. These do not require the person to specify any impairments, rather the requirement is in respect of information or documents the person possesses. When assessing if the person meets the access criteria, under s 26 the CEO has powers to request further information from or about the person, and to request the person to undergo an assessment or a medical, psychiatric, psychological or other examination. The existence and character of any impairment is a matter for assessment on the relevant information.
…Just as a reviewer under s 100 is not confined to consider supports put before them and a participant is not required to identify the particular supports sought on review,[72] so, too, a reviewer is not confined to consider only impairments placed before them and a prospective participant is not required to identify impairments in an access request or when seeking review.”
[71] [2022] AATA 541 (25 March 2022).
[72] QDKH v NDIA [2021] FCAFC 189 at [7].
There is no dispute, and the Tribunal finds, that the Applicant has satisfied subsection 24(1)(a) in that her physical conditions are disabilities attributable to one or physical impairments and/or she has one or more impairments to which a psychosocial disability is attributable.
The Tribunal has arrived at the following factual findings based on the available evidence:
a)The Applicant has lived with anxiety, depression and Post Traumatic Stress Disorder for some years;
b)The Applicant received a diagnosis of Painful Bladder Syndrome in 2007 and Keratonous in 2018.
c)The Applicant lives with physical and psychosocial conditions giving rise to impairments as a result of these conditions.
There is no dispute, and the Tribunal accepts, that those impairments affect the Applicant’s capacity for social or economic participation under section 24(1)(d) of the NDIS Act. The Applicant’s evidence and that of her general practitioners detailed below is consistent with that finding.
Permanency and lifelong support
The Applicant was not well enough to give evidence during the hearing. She stated in writing quite clearly, and the Tribunal accepts, that she would have preferred to do so. The oral evidence given at the hearing by various of her treating professionals, and in particular Dr CL and Dr C, reveal that their own statements about the permanence of the Applicant’s impairments were either exaggerated or not based upon their own clinical findings, but rather on information provided solely by the Applicant. The Applicant’s answer to this can be found in her statement of lived experience and subsequent statements and has been clear and consistent: her diagnoses are long standing and were accepted by Centrelink when she accessed the Disability Support Pension, and she should not have to take potentially re-traumatising steps to confirm such diagnoses in order to access the NDIS. This is the heart of the Applicant’s case.
However, the difficulties with this approach are manifold, and include:
a)The statutory criteria to access the DSP differ fundamentally from those to access the NDIS;
b)The Applicant has since received further information from her treating general practitioners to the effect that further treatment options should be explored for both her physical and psychosocial impairments;
c)This more up-to-date information includes a referral to a psychiatrist that does not appear to have been taken up. Further, the Applicant does not appear to have further engaged with the Dr VW, a urogynecologist, or with any alternative urologist to explore treatment options for her ongoing pain and frequent urination;
d)The evidence suggests that the applicant benefits from regular engagement with a mental health specialist, but the available evidence does not show consistent or regular engagement.
With respect to subsection 24(1)(b) of the NDIS Act, the Respondent submitted that the Applicant’s physical and psychosocial impairments are not likely to be permanent.[73] Furthermore, the Respondent contended that subsection 24(1)(c) and (e) are not met.[74]
[73] HB, p.269 Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 5 September 2022 at [50], [53] and [56].
[74] HB, p.269 Respondent’s ‘SFIC’ at [57] to [99].
There is an obvious interaction between sections 24(1)(b) and 24(1)(e) of the access requirements. If an impairment is not likely to be permanent, it is difficult to conceptualise how a prospective participant could demonstrate that lifelong support under the NDIS is likely to be require for her impairments. Conversely, it will not be possible to demonstrate that lifelong support from the NDIS is likely to be required for impairments that can, or are likely to be, remedied and are not, therefore, permanent. Even if it is not possible for an impairment to be remedied in a way that is curative, or something approaching a cure, treatment for an ongoing permanent condition that means that a person will not likely need the support of the NDIS as a result of that impairment will not be able to satisfy section 24(1)(e).
The Applicant’s impairments from Keratoconus fall within this category. The blurred and ghosting aspects of her vision are dealt with by contact lenses and, whilst the Applicant’s symptoms persist without these aids, there is no evidence to suggest that the gas permeable contact lenses fitted in 2021 are not fit for purpose and there is a surgical option for the Applicant to pursue should she feel that is necessary in the future. Therefore, whilst the Tribunal accepts the evidence of Mr F that Keratoconus is a permanent condition, and that any remedial action will not cure the condition, impairments from Keratoconus alone put the Applicant in a similar position to many people who suffer from blurred vision and benefit from correction through devices prepared by an Optometrist. These impairments do not differentiate the Applicant from the general population into a subset of people with ‘serious and permanent disabilities who are intended to be the beneficiaries of funded supports’ through the NDIS.[75]
[75] Mulligan and National Disability Insurance Agency [2015] AATA 974 at [153].
Subsection 24(1)(b) asks if the impairment(s) “are, or are likely to be, permanent”. It is correct to interpret the word “permanent” in subsection 24(1)(b) as “enduring”.[76] Permanent does not mean “irreversible”, “untreatable”, or “long-term”.[77] An impairment might be permanent despite “variation in intensity” or its episodic or fluctuating nature (subsection 24(2)-(3) of the NDIS Act). As explained by Mortimer J in Davis[78] the question for the Tribunal is whether the impairment(s) experienced by an individual has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis for the person’s lifetime.
[76] National Disability Insurance Agency v Davis [2022] FCA 1002 at [85].
[77] National Disability Insurance Agency v Davis [2022] FCA 1002 at [77], [81].
[78] [2022] FCA 1002 at [82]-[86] and [103].
The Tribunal considers, based on the evidence, that the while the Applicant has adduced evidence as to the existence of the physical impairments associated with Painful Bladder Syndrome and psychosocial impairments associated with her mental health conditions, the evidence from which the Tribunal could be satisfied as to the permanency of those physical and psychosocial impairments from those conditions is inconsistent, unclear and inconclusive.
When having regard to possible treatment of impairments, under subsection 24(1)(b) and Rule 5.4, it is not necessary that those treatments will likely remove all traces of the impairment. Rather, the Tribunal must be satisfied that there are no treatments that would be likely to alleviate the Applicant’s impairment,[79] (as opposed to diagnosed condition). This “remedy” must do more than just relieve or improve and should be understood to mean something approaching a removal or cure of the impairment.[80]
[79] FBJV and National Disability Insurance Agency [2021] AATA 913 (19 April 2021) at [117]; TMVJ and National Disability Insurance Agency [2022] AATA 2053 (30 June 2022) at [35].
[80] Davis v. National Disability Insurance Agency [2022] FCA 1002 at [136]
In Davis v. National Disability Insurance Agency[81] Mortimer J, as the Chief Justice then was, described the way in which the assessment of permanence should be approached:[82]
The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.
[81] [2022] FCA 1002
[82] Ibid at [86]
The evidence as to the Applicant’s diagnosis of post-traumatic stress disorder is accepted by the Tribunal. It is unclear whether the Applicant’s psychosocial impairment arising from the disorder would be enduring following regular and genuine engagement with treatment. There is no suggestion that the Applicants post-traumatic stress disorder can be cured, but it may be possible to treat the symptoms in order the alleviate them and, thus, to positively impact the related impairment (as opposed to the existence of the diagnosis, or condition).
The Applicant has engaged, from time to time, with psychologists and general practitioners in relation to her mental health. This engagement has not been consistent. The Applicant was referred to a psychiatrist in 2021 but there is no evidence before the Tribunal that she consulted with the psychiatrist. The Applicant’s inconsistent engagement, and failure to explore legitimate treatment options, is significant in this case for three reasons:
a)Firstly, the Applicant may have other treatment options available, and potentially even other possible diagnoses, that could change the day-to-day impact of her mental health conditions. Both Dr CL and Mr D stated that a personality disorder may be indicated. Until treatment options, which may require further diagnoses, are explored, it is too early to determine any functional incapacity under section 24(1)(c) of the NDIS Act as this incapacity may improve and therefore too early to determine if the Applicant is likely to require the support of the NDIS for a lifetime under section 24(1)(e) of the NDIS Act.
b)Secondly, the Applicant has stated that she is unable to undertake further exploration of the physical symptoms of her bladder condition because of her past trauma experiences. Only the Applicant has given evidence about this issue, by way of self-reporting in written evidence. Treating practitioners who have given evidence about this issue accept that they relied on self-reporting from the Applicant. There is no medical evidence about this barrier to the Applicant obtaining further information and, potentially, treatment options for the symptoms of PBS. There is, however, evidence before the Tribunal to suggest that the Applicant is treatment avoidant. The suggestion from Dr CL was that Dr VW had recommended a cystoscopy for both exploratory, diagnostic and treatment purposes. It may be that such avoidance arises solely as a result of mental health conditions which, if properly explored and understood, would lead the NDIA, or the Tribunal standing in its shoes, to conclude that the impairments arising from PBS are permanent. However, without that further information the linking the avoidance to her mental health it is not open to the Tribunal to conclude that the Applicant has engaged with treatment options.
c)Finally, if her mental health is treated in a way that allows the Applicant to manage further exploration and treatment of her bladder issues, such as in the ways foreshadowed by Dr VW, the Applicant’s physical impairments may also be reversed or remedied. For this reason, the Applicant’s failure to fully engage with recommendations about her mental health conditions lead the Tribunal to conclude that, until those conditions are rendered permanent, it is too early to consider the physical impairments arising from the Applicant’s bladder condition.
Therefore, the same observation can be made about the permanence of impairments arising from the Applicant’s diagnosis of PBS. It is not the permanence of the diagnosis received many years ago that is in question but, rather, the permanence of any impairments arising from it. Without the exploration of treatment for the impairments, it is not possible to reach a level of satisfaction as to their enduring quality.
The Tribunal does not find that the Applicant has wilfully disregarded the recommendations of specialists or that she would not wish to have her symptoms and impairments ameliorated. However, the evidence taken together paints a complex picture of the relationship between the Applicant’s pain and her lived experience of trauma, anxiety and depressive symptoms and, potentially, undiagnosed psychosocial overlay. It is not at all clear that the Applicant has yet accessed the type of multi-disciplinary specialist care that can address both the cause of her pain and any barriers to relief from that pain. Dr CL noted that the Applicant would likely benefit from consultation with a psychiatrist and Dr VW noted that the Applicant would likely benefit from a cystoscopy and a range of possible treatments, depending on the outcome of her investigations. There is no evidence that the Applicant has engaged with either of these specialist disciplines and, therefore, what impact such engagement may have upon the Applicant’s conditions if she did so. Such treatment would ordinarily be provided by the health care system and only when the Applicant has received complete care from a psychiatrist, urologist or urogynecologist and, potentially, a pain specialist or other recommended consultant, in a trauma informed setting, will a clear picture emerge as to whether the Applicant has any ongoing functional impairment. In the absence of evidence that there are no appropriate and available treatments that could remedy the Applicant’s physical impairments, and without an understanding of how the Applicant’s conditions may respond to such treatments, the Tribunal is not satisfied that those impairments are permanent as that word is to be understood in subsection 24(1)(b) of the NDIS Act.
It follows from these findings that the Tribunal is not satisfied, having regard to the available evidence, that the Applicant would be likely to require support under the NDIS for her lifetime, as required by paragraph 24(1)(e) of the NDIS Act, particularly in circumstances where the outcome of further treatment and health care is not yet known. Even in respect of any impairments that are determined, in time, to be permanent, if those impairments are not being managed or treated appropriately the Applicant’s current functional capacity may be more “substantial” than it might otherwise be. In those circumstances, the Tribunal finds that, on the current state of the evidence, the Tribunal cannot confidently arrive at the conclusion that the Applicant is likely to satisfy subsection 24(1)(b). It follows that the Applicant has not identified permanent impairments for which she will require support under the NDIS for her lifetime as is required in subsection 24(1)(e) of the NDIS Act.
Substantial functional impairment
Where the impairments of a prospective participant may not be permanent or result in a need for lifetime support under the scheme, it would be premature to consider whether those impairments result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management for the purposes of s 24(1)(c) of the NDIS Act. This is because, with further treatment or changes in circumstances, levels of functional impairment may change.
In any event, the Tribunal observes that much of the medical evidence about the Applicant’s day-to-day functional incapacity self-reported by the Applicant. There is no suggestion that the Applicant has inaccurately described her impairments. However, the Applicant has various mental health impairments that manifest in negative and depressive thoughts and anxiety. Her counsellor described her as frequently dysregulated. These factors are relevant in the weight that properly is to be given to the Applicant’s analysis of her own capacity.
There is no doubt that the Applicant currently lives with physical and psychosocial limitations. She would benefit from assistance with various physical tasks. She lives, each day, with her physical ailments together with the psychosocial overlay of long-term PTSD and episodic anxiety and depression. If the Applicant’s conditions were treated and managed in a way that rendered her impairments assessable as permanent, and she was, at that point, substantially functionally impaired as a result, any future request to access the NDIS should be accompanied by up-to-date evidence, preferably from an occupational therapist, about what the Applicant can and cannot do having regard to the six domains set out in section 24(1)(c) of the NDIS Act.
For completeness, the Tribunal again notes that the Applicant’s functional impairment from the permanent condition of Keratoconus can be corrected through devices prepared by an Optometrist and do not, in themselves, give rise to functional impairment in any of the relevant domains that could be said to be “substantial”. The Applicant’s visual condition does not differentiate her from the general population into a subset of people with ‘serious and permanent disabilities who are intended to be the beneficiaries of funded supports’ through the NDIS. [83]
[83] Mulligan and National Disability Insurance Agency [2015] AATA 974 at [153].
The Tribunal has found that the disability requirements in section 24 of the NDIS Act have not been met.
The Early intervention requirements
Section 25 of the NDIS Act states:
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
a. the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmentaldelay; and
b. the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
c. the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
i.mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
ii.preventing the deterioration of such functional capacity; or
iii.improving such functional capacity; or
iv.strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A)For the purpose of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
a. as part of a universal service obligation; or
b. in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Applicant did not make any submissions, expressly, that she met the early intervention requirements. The Tribunal has considered the relevant evidence and determined that she does not meet the early intervention requirements because:
(a)the available evidence does not demonstrate the provision of early intervention supports that would likely benefit the Applicant by reducing her future needs for support. The evidence does not address the early intervention supports that the Applicant requires and outcomes to be achieved in relation to her functional capacity, as required under subsection 25(1)(b) of the NDIS Act.
(b)the evidence provided does not indicate the early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in s25(1)(c) of the NDIS Act.
Rule 2.5(b) of the Access Rules provides the following general outline of these requirements:
“… a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. The CEO may consider a range of evidence in deciding the potential benefit of early intervention on a person's impairment. “
[emphasis added]
In addition, the Tribunal notes the requirement of paragraph 25(1)(b) of the NDIS Act that:
“the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability.”
It is common ground that the Applicant has exhibited most of her impairments for many years. In those circumstances, and having regard to the available evidence, it is not clear how supports rendered now could be considered “early” and it has not been demonstrated that providing supports now could reduce the Applicant’s need for supports in relation to her impairments in the future.
The Tribunal is not satisfied, based on the available evidence, that early intervention supports are likely to benefit the Applicant in a functional sense by achieving the stated outcomes in paragraph 25(1)(c)(i) to (iii) of the NDIS Act. The Tribunal has found that the requirements in sections 25(1)(b) are not satisfied in this case. The early intervention requirements are cumulative and failure to meet any one of the requirements must lead to the conclusion that the early intervention requirements are not met.
CONCLUSION
For the reasons set out above, the Tribunal finds that the Applicant does not meet the access criteria in sections 24 or 25 of the NDIS Act.
DECISION
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 107 (one-hundred and seven) paragraphs are a true copy of the reasons for decision of Senior Member Buxton.
……………….…[SGD]………………
AssociateDated: 29 July 2024
Date of the hearing: 21 and 22 November 2023
Final date for submissions: 23 July 2024
Applicant: BMMG (did not appear)
Solicitor for the Respondent:Mr Crethary
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