Bontes; Secretary, Department of Social Services and (Social services second review)

Bontes; Secretary, Department of Social Services and (Social services second review) [2019] AATA 461 (20 March 2019)
Division:GENERAL DIVISION
File Number: 2017/5015
Re:Secretary, Department of Social Services
APPLICANT

AndSarah BONTES
RESPONDENT

DECISION
Tribunal:Member C Edwardes

Date:20 March 2019
Place:Perth

The decision of the Administrative Appeals Tribunal dated 25 July 2017 is set aside and substituted with a decision that the Respondent did not satisfy s 94(1)(b) of the Social Security Act 1991 (Cth) and does not qualify for Disability Support Pension.
.....[Sgd]........................................................
Member C Edwardes
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment tables – did the Respondent have 20 impairment points – did the Respondent have a continuing inability to work – did the Respondent participate in program of support – decision under review set aside.
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1), 94(2), 94(3B), 94(3C)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 7(1), 7(2)
Social Security (Administration) Act 1999 (Cth) – Sch 2 cl 4(1), s 179
Social Security (Tables for the Assessment of Work-related Impairment for Disability
Support Pension) Determination 2011 (Cth) – ss 6(1), 6(2), 6(3), 6(4), 6(5), 6(6), 7, 8, 8(1), 9, 10, 11, 11(1), Table 5
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
The Guide to Social Policy Law – Social Security Guide (Version 1.252 – Released 4 February 2019)
REASONS FOR DECISION
Member C Edwardes
20 March 2019
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 25 July 2017 (T3, 11-24). The AAT1 decision set aside the decision under review and sent it back to the Chief Executive of Centrelink for reconsideration with the direction that on 24 October 2016 the Respondent satisfied subss 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Act).
The Administrative Appeals Tribunal (the Tribunal) has jurisdiction to hear this matter pursuant to s 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The matter was heard in Perth on 19 February 2019. The Applicant was represented by Mr Burgess from Sparke Helmore Lawyers and the Respondent was represented by her mother Ms Leggett. The Respondent did not attend for medical reasons.
The Tribunal would like to thank both representatives for their assistance throughout the hearing.
INTRODUCTION
Following initial contact with the Department of Human Services (the Department) on 24 October 2016, on 7 November 2016 the Respondent lodged a claim for Disability Support Pension (DSP) (T19, 87).
The Respondent made a claim for the following conditions; “chronic widespread pain syndrome, EDS – Benign joint hypermobility, Selective mutism, Severe anxiety, and Supraventricular tachycardia” (T19, 112).
The Respondent’s claim for DSP was rejected by a delegate of the Department on 13 January 2017 (T29, 138), on the basis of a Job Capacity Assessment (JCA) report dated 12 January 2017 (T28, 130-137).
The delegate found that the Respondent did not have an impairment rating of 20 points or more.
The Respondent sought a review of the Department’s decision. This was undertaken by an Authorised Review Officer (ARO).
On 17 March 2017, the ARO determined the following (T36, 150-151):
Your conditions of hypermobility syndrome, sinus tachycardia/POTS (postural orthostatic tachycardia syndrome), chronic widespread pain syndrome and chronic fatigue, selective mutism, generalised anxiety disorder and sleep apnoea are not accepted as being permanent for Disability Support Pension purposes as they have not been fully diagnosed, treated and stabilised (FDTS).
You have not been assigned an impairment rating.
You do not have an impairment rating of 20 points or more.
You do not have a continuing inability to work 15 hours per week or more because of your impairment.
On 25 July 2017, the AAT1 set aside the decision of the ARO and substituted the decision as set out in [1] above.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Act and the Administration Act.
Section 94 of the Act provides the qualifying criteria for DSP, relevantly:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) …
Qualification Period
Section 94 of the Act must be read in conjunction with Sch 2, Subcl 4(1) of the Administration Act. In accordance with those requirements if a person makes a claim and the person is not, on the day on which the claim is made, qualified for the payment and the person will become qualified within the period of 13 weeks after the day on which the claim is made, the claim is taken to be made on the first day on which the person is qualified for the payment. In the present case, the 13 week period commences on 24 October 2016 and ends on 23 January 2017 (the Qualification Period) (T18, 85).
For a claim to be successful, a person must be qualified for DSP during the Qualification Period. While subsequent changes in a medical condition are not relevant to the claim, they may however be relevant to a future claim. See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] 158 FCR 252.
Assessing impairments and assigning an impairment rating
The tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the 2011 Determination). The tables contained within the 2011 Determination are referred to as the “Impairment Tables”.
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Respondent are to be assigned 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AAT 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
(Original Emphasis.)
Subsection 6(4) of the 2011 Determination provides further guidance in assessing whether or not a condition is permanent. “Permanent” does not have its ordinary meaning and an impairment is considered permanent if the condition has been fully diagnosed, treated and stabilised and the condition is more likely than not, in light of available evidence, to persist for more than two years. Subsections 6(5) and 6(6) of the 2011 Determination establish when a condition may be considered fully diagnosed, fully treated and fully stabilised. Subsection 8(1) of the 2011 Determination provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the 2011 Determination provide guidance on how to assess information and evidence using the Impairment Tables and assign impairment ratings. Relevantly, s 11(1)(c) of the 2011 Determination states that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
Continuing inability to work
As set out above in s 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to s 94(2) of the Act:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support - the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases - the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases - either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity - such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Emphasis added.)
“Severe impairment” is defined in subsection 94(3B) of the Act:
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
(Emphasis added.)
Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of s 94(3C) of the Act.
Relevantly, s 7(1) and s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (POS Determination) require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
The Tribunal is also assisted by the Guide to Social Policy Law – Social Security Guide (the Guide). The Guide provides assistance to those who administer the Act. The Tribunal whilst not bound to apply policy guidelines will usually do so unless there are cogent reasons in a particular case not to do so (see Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).
ISSUES FOR DETERMINATION
The key issue for the Tribunal to determine is whether the Respondent qualified for DSP for the purposes of s 94(1) of the Act.
This requires consideration of whether during the Qualification Period:
·the Respondent had any physical, intellectual or psychiatric impairment/s; and
·if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
·if so, whether the Respondent had a continuing inability to work.
EVIDENCE
The Tribunal received the following evidence:
·Exhibit A1 - Secretary’s Statement of Facts, Issues and Contentions (SOFIC).
·Exhibit A2 - List of Authorities.
·Exhibit A3 - Report of Dr Minogue dated 9 October 2018.
·Exhibit A4 - Report of Dr Terace, received 19 February 2019.
·Exhibit A5 - Annexure A1.
·Exhibit A6 - Annexure A2.
·Exhibit A7 - Annexure A3.
·Exhibit A8 - Applicant’s program of support referral summary.
·Exhibit A8 - Hearing Certificate.
·Exhibit A9 - Amended Hearing Certificate 17 September 2018.
·Exhibit A10 - Hearing Certificate 17 September 2018.
·Exhibit A11 - Hearing Certificate 3 May 2018.
·Exhibit A12 - T documents (T1-T51 pp1-193).
·Exhibit A13 - Dr Terace CV and Annexure A.
·Exhibit A14 - Submission dated 12 March 2019.
·Exhibit R1 – Respondent’s Statutory Declaration dated 10 August 2018.
·Exhibit R2 - Statement of Joyce Leggett for Karin Leggett dated 20 August 2018.
·Exhibit R3 - Statement of Ron Leggett dated 20 August 2018.
·Exhibit R4 - Statement of Lee-Anne Carol Miles dated 17 August 2018.
·Exhibit R5 - Statutory Declaration of Ingrid Maria Jansen dated 7 August 2018.
·Exhibit R6 - Letter of Dr Edmund Lee dated 9 August 2018.
·Exhibit R7 - Letter of Dr Gothami Madadenlya dated 1 August 2018.
·Exhibit R8 - Letter of Dr Edmund Lee dated 16 July 2018.
·Exhibit R9 - Medical report of Dr Minogue dated 9 August 2018.
·Exhibit R10 - Medical Report of Dr Stewart dated 12 September 2017.
·Exhibit R11 - Mental Health Assessment letter dated 3 April 2014.
·Exhibit R12 - Clinical Psychology Reports.
·Exhibit R13 - Letter of Dr Lee dated 21 March 2018.
·Exhibit R14 - Report of Natalie Lahav dated 27 February 2018.
·Exhibit R15 - Schedule of consultations with Jacqueline Landre commencing 2011.
·Exhibit R16 - Report of Jacqueline Landre on the Respondent’s mental health conditions dated 3 March 2019.
·Exhibit R17 - Report from Dr Stewart detailing contact the Respondent has had with Psychiatrists dated 26 February 2019.
·Exhibit R18 - CAHS assessment reports in 2014.
·Exhibit R19 - Submission dated 12 March 2019.
The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
The Secretary makes the following contentions (A1):
5.9The Secretary accepts that the Respondent had impairments for the purposes of paragraph 94(1)(a) of the Act. However, the Secretary contends that the Respondent’s conditions that caused these impairments were not fully diagnosed, treated and stabilised at the qualification period, or, even if they were, that the impairments they caused did not rate 20 points under the Impairment Tables. The Secretary also contends that the Respondent did not have a continuing inability to work during the qualification period. Therefore the Respondent does not satisfy paragraphs 94(1)(b) and (c) of the Act.
…
Mental health condition – Table 5
5.19The Secretary notes that the diagnoses of the Respondent’s mental health condition are varied and the evidence indicates the following diagnoses:
(a)On 19 July 2011, Ms Landre, psychologist produced a report and noted the Respondent first attended on 16 February 2011. Ms Landre noted the Respondent was referred for management of her selective mutism, anxiety disorder and adjustment reaction (T8/65).
(b)On 3 July 2012, Ms Landre completed an assistance for isolated children medical statement in support of the Respondent’s request to study from home. Ms Landre reported the Respondent’s diagnosis as selective mutism and opined the Respondent’s “mutism is currently severe enough to cause major anxiety and complete withdrawal when forced to be in large groups” (T7/67).
(c)On 2 November 2016, Ms Landre produced a report and noted she saw the Respondent twice in 2013, once in 2014 and twice in 2016. Ms Landre opined the Respondent’s “extreme anxiety and mutism are due to posttraumatic stress disorder” (T20/117).
(d)On 24 January 2017, Ms Lahav, clinical psychologist reported the Respondent first attended on 17 January 2017 and again on 24 January 2017. Ms Lahav reported the Respondent displayed signs of selective mutism alongside generalised anxiety disorder. Ms Lahav also reported the Respondent has developed clinical depression during her adolescent years. Lastly, Ms Lahav reported the Respondent continues to meet criteria for the mentioned diagnoses (T30/140).
5.20The introduction to Table 5 – mental health function states the following:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)
5.21The psychiatric conditions can be relevantly summarised as follows:
(a)selective mutism;
(b)anxiety;
(c)PTSD; and
(d)clinical depression.
5.22The Secretary accepts that the Respondent saw a clinical psychologist (Ms Lahav) during the qualification period, albeit approximately 3 months after she lodged her claim for DSP. The Secretary, also notes Dr Terace’s opinion in relation to diagnoses in his report dated 29 December 2017:
…
5.23Based on the report of Ms Lahav, clinical psychologist dated 24 January 2017, the Secretary accepts the Respondent had psychiatric conditions that were fully diagnosed during the qualification period.
5.24However, in accordance with the report of Dr Terace dated 29 December 2017, the Secretary contends that the Respondent’s mental health conditions were not fully treated and fully stabilised during the qualification period. Accordingly, on that basis an impairment rating cannot be assigned to any impairment the condition may cause. The Secretary submits the Respondent’s conditions cannot be regarded as fully treated and stabilised as she has not undertaken reasonable treatment for the conditions, and relies on the following to support this contention:
(a)Dr Terace reported that it would be appropriate for the Respondent to undertake the following treatment:
…
Ms Bontes requires long-term assessment and treatment with a consultant psychiatrist of a both a pharmacological and psychotherapeutic nature.
(b)Further, Dr Terace comments on the benefit of the above treatment and states that he would expect ‘significant improvement should occur in some or many domains of her alleged psychiatric disorders with such treatment despite the chronicity of the condition’.
(c)The Secretary submits the Respondent has not attended regular psychological counselling nor has she engaged in regular long-term therapy. In support of this the Secretary relies on the following evidence:
• In the three and a half years prior to the date of the claim for DSP (2012 to 2016), the Respondent engaged in only five sessions with a psychologist as reported on 2 November 2016 by Ms Landre. Ms Landre reported that she saw the Respondent twice in 2013, once in 2014 and twice in 2016 (T20/117).
• In relation to 2015, the Secretary acknowledges the records from the Child and Adolescent Health Service at Princess Margaret Hospital. However, the Secretary submits that the consultation notes do not evidence attendances by the Respondent with the clinical psychologist but rather records reporting of the Respondent’s symptoms by the Respondent’s mother. In particular the Secretary notes an entry dated 3 February 2015 states ‘M[other] attended alone as S[arah] reportedly unwilling’.
(d)The Secretary notes that while Dr Lee in 2017 opined that the Respondent should not be prescribed ‘serotonin–norepinephrine reuptake inhibitor’ (SNRIs) (T32/144), there is no evidence that the Respondent has ever undertaken a trial of any other anti-depressant or anti-anxiety medications such as ‘selective serotonin reuptake inhibitor’ (SSRIs) or tricyclic antidepressants.
(e)There is no evidence that the Respondent has ever engaged in an appropriate course of evidence-based psychological treatment specifically for her supposed PTSD condition, such as trauma-focussed CBT or EMDR therapy.
…

The Tribunal notes the findings of the AAT1 (T3, 15-18):
Condition 1 – generalised anxiety disorder with selective mutism
…
29.The tribunal noted reports from both psychologists together with letters from Dr Stewart. In addition a letter from the treating rheumatologist, Dr Inderjeeth, expresses concern about Sarah’s mental health. Although the clinical psychologist, Ms Lahay, saw Sarah after the claim was lodged, her confirmation of the diagnosis can be applied retrospectively to the time of the claim, given the many years the problems have existed.
30.The tribunal is satisfied that Miss Bontes’ mental health problems are fully diagnosed by suitably qualified practitioners. For DSP purposes they can be considered fully treated and stabilised. Based on the reports of several treating health professionals the tribunal determined that these problems meet the criteria of a severe impairment of mental health function. This generates 20 points from Impairment Table 5 (appendix A).
Condition 2 – hypermobility disorder with widespread pain
…
34.The tribunal determined that, at the time of the claim, the problem of hypermobility disorder with widespread pain was fully diagnosed, but was not fully treated and stabilised. It generates no points from the Impairment Tables.
Condition 3 – POTS
…
39.The tribunal determined that, at the time of the claim, the problem of POTS was not fully diagnosed, not fully treated and stabilised. It generates no points from the Impairment Tables.
The Tribunal notes the following comment of Jacqueline Landre in her report of 19 July 2011 (T6, 65):
Sarah is currently showing an increase in challenging behaviours towards her mother, which is fairly usual for her age, but is a problem compounded because of her mutism and the constant home schooling.
The Tribunal notes the report of Dr Currie of 2 September 2013 that “there were no significant symptomatic cardiac arrhythmias detected during the 4 days of monitoring.” (T8, 68)
The Tribunal notes the report from Dr Senq-J Lee of 27 February 2014 (T10, 75):
At the present moment I cannot identify any other medical conditions which may exacerbate her pain and fatigue, which is reinforced by a negative bloodwork screen.
Dr Senq-J Lee stated in a report of 17 July 2014 (T12, 77):
Her mother and Sarah decided to discharge against our advice/recommendations as Sarah became extremely upset and anxious…
Our MDT team’s assessment is that primary stumbling block is her lack of insight and willingness to follow through recommendations, hence our MDT team can only help her if she wants to.
In a report of 28 October 2014 Dr Senq-J Lee stated the following (T13, 78):
Sarah has not re-engaged with our PMH Multidisciplinary team for various reasons... It would be hard to offer ongoing support especially if they choose to not engage with our team…
I discussed the above in detail to Sarah and her mother and challenged her again to re-engage with our Multidisciplinary Team. This includes seeing Yvette (psychologist), Ali (physiotherapist) and Leesa (school liaison).
The Tribunal notes a report by Dr Klimaitis of 9 December 2014 found that “a sleep study may be worth considering but the most important treatment modality may be improving her exercise levels.” (T15, 81).
The Tribunal notes the report of Dr Currie of 30 November 2016 found “there were no significant cardiac arrhythmias detected…” (T25, 124).
Dr Inderjeeth stated on 6 December 2016 that “she has seen a physiotherapist and psychologist in the past but is not getting active treatment with either of these currently. This may need to be reconsidered.” (T26, 127).
Dr Nidorf stated on 9 December 2016 (T27, 128-129):
Clinically, she clearly has a structurally normal heart. … I have told her mother that I believe Sarah’s heart is structurally normal and at this stage there is not enough evidence to suggest she has had a true tachyarrhythmia as a cause of her symptoms.
Dr Terace’s report was the subject of a confidentiality order pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth). As a result the contents of the report are not reproduced here, however the Tribunal has considered the report.
The report was prepared by Dr Terace on the basis of a two hour interview with the Respondent and her mother. After that an holistic assessment was undertaken of all medical reports available to the Tribunal. Dr Terace’s credentials are outlined in exhibit A13. The Tribunal notes that Dr Terace is highly credentialed and is a leading expert in the field of mental health.
Dr Minogue of the Health Professional Advisory Unit undertook an assessment of medical reports before the Tribunal and on 9 October 2018 came to the following conclusions (A3):
In my opinion the available medical evidence supports an assessment that the principal medical condition (mental health) is not fully diagnosed, treated and stabilised. Two components of Miss Bontes’ mental health status (a chronic anxiety disorder and selective mutism) are considered to be diagnosed however specialist psychiatric advice (from Dr L Terace) is that a treating psychiatrist’s “long-term diagnosis and treatment” is needed for definitive diagnostic formulation. Her other documented medical conditions of chronic fatigue syndrome, hypermobility syndrome, chronic pain/fibromyalgia, sleep disorder and postural orthostatic tachycardia syndrome (POTS) are either not FDTS or if diagnosed are considered to be not fully treated and stabilised.
HEARING
The Applicant outlined this case as contained in the SOFIC:
[Mr Burgess]: Member, in opening, there are, if we can say, three primary areas of functioning and impairments that this case concerns. One is a mental-health impairment, and I talk about it in that sense because there has been various diagnoses of PTSD, selective mutism, anxiety disorders, and the like. But if we can call it a mental health condition that, as Ms Leggett has rightly pointed out, is the I guess primary condition that’s causing an impairment to Sarah.
…
The Secretary relies in that respect on the report of Dr Terace, to find that the condition was not fully diagnosed, treated, and stabilised, that was Dr Terace’s opinion. (Transcript, p11)
The Respondent outlined her case as:
[Ms Leggett]: The main reason that I have fought Centrelink for two and a half years, is because I’m dealing with an extremely fragile and vulnerable young woman who is suicidal, cannot care for herself, requires 24 hour, seven days a week assistance. This actually means - she is actually on a benefit right now, she is on a benefit which she receives which is - she receives $200 a week. …
The reason that I have gone through is because she is incapable of carrying out the - and jumping through the hoops that Centrelink require for her to get the job seeker’s allowance.
And I’m extremely concerned that if that benefit - if she’s not able to meet those requirements, she will receive nothing. I am concerned that she will actually take her life as a result. (Transcript, p17)
Under cross-examination, the Respondent’s mother stated:
·Ms Bontes first saw Ms Lahav, a clinical psychologist on 17 January 2017.
·There were only 2 appointments – 17 January and 24 January 2017.
·Ms Lahav did recommend ongoing treatments.
·The Respondent did proceed to see Ms Lahav after 24 January 2017 over several visits.
·The Respondent saw Ms Lahav on her own and also with her mother. On the first assessment Ms Lahav saw Ms Bontes without the presence of her mother.
·The purpose of ongoing visits was for Ms Bontes’ ongoing wellbeing, treatment and therapy.
·Ms Lahav recommended continued appointments with a clinical psychologist.
·Ms Leggett was not sure if Ms Bontes saw a Psychiatrist during the Qualification Period.
·Ms Leggett claimed Ms Bontes had seen many Psychiatrists prior to the Qualification Period (between 2012 and 2016) and she was assessed twice by CAMHS. Ms Leggett had tried to obtain records but was not successful in this.
·The T-documents confirm that between 2013 and 2016 Ms Landre saw Ms Bontes twice. Ms Leggett claimed Ms Landre had seen Ms Bontes many times before that but was unable to provide any evidence.
·Ms Leggett stated that Ms Bontes had not taken anti-depressants as this was not recommended by the psychiatrist at CAMHS.
·Ms Leggett claimed Ms Bontes had treatment for trauma-focussed cognitive behavioural therapy (CBT) with Ms Landre and claimed prior to 23 January 2017 there was such treatment.
·Ms Leggett confirmed Ms Bontes had not undergone Eye Movement Desensitisation Resensitisation (EMDR).
Ms Leggett clarified a number of points:
[Ms Leggett]: The first is that the very first treatment that Sarah had was very young. She was assessed and treated under the - by Domestic Violence Children’s Counselling Service, who had…
[Member Edwardes]: Have you got evidence to that effect? Have you got…?
[Ms Leggett]: I don’t, no. Domestic Violence Children’s Counselling Service was run by the government but it is no longer in existence, so I could not obtain any records.
[Member Edwardes]: First treatment four years of age. Yes?
[Ms Leggett]: She was seen - their standard treatment for children who - and they specialised in trauma, that’s why I was sent there. They specialised in trauma treatment. She had 10 sessions of an hour long, and they were consecutive. They went over - she was actually treated over - it went over about a nine-month period.
…
[Member Edwardes]: Second point?
[Ms Leggett]: She also had - we were sent on a camp, which was a two-day camp, again by Domestic Violence Children’s Counselling Service. We were sent for an intensive counselling therapy, that sort of thing. We went to Whiteman Park. And we were seen and Sarah was seen by the therapists there. And that was all…
[Member Edwardes]: You don’t know whether it’s a psychiatrist or psychologist?
[Ms Leggett]: I’m not sure who - to be honest, I know that they specialised in childhood trauma.
[Member Edwardes]: Point 3?
[Ms Leggett]: They recommended after Sarah finished her 10 sessions we actually - the funding runs out and they have to work out where best Sarah would go. They actually said that Sarah was one of the most traumatised children that they had come across. And they were quite concerned about - they were quite concerned about how she was responding to other people. They felt that it was actually not in her best interests to go and see a psychologist at that time.
[Member Edwardes]: They referred her to a psychologist, or not?
[Ms Leggett]: No. No, they referred me to a psychologist. I went to see a lady by the name of Dianne Rickman, and I saw her ongoing for quite some time. She specialised in trauma. And the idea was that - and this was the suggestion of Domestic Violence Children’s Counselling Service - the suggestion was that if they showed me how to respond to the issues that she had, I could then sort of deal with things that are coming up; and I could also bring to the attention of the psychologist what was going on, what Sarah was doing with behaviours and that sort of thing. I actually saw her ongoing for many years while Sarah was at school. (Transcript, p34-36)
Dr Terace’s evidence although an opinion, was compelling. He stated in response to a series of questions the following:
[Mr Burgess]: Just one other question. Sorry, Dr Terace. Is it the case, just for clarity for the tribunal’s - is it the case that you amassed all the medical reports that were available?
[Dr Terace]: Yes.
[Mr Burgess]: And then, after having spoken I think to Sarah’s mother, put a report together?
[Dr Terace]: Yes, sir. My process is that generally I prefer not to read the medical documents until after I conducted the interview. There were exceptions to that rule, of course. For example, if I’m advised in advance that there are critical issues, such as a patient is imminently suicidal or - this has happened - has made homicidal threats towards other doctors, then I’m required to read those documents. In general I prefer not to. And the reason for that is that I believe - many of my colleagues don’t agree with this position - that in reading documents about a person whom you’re due to examine and to provide an impartial, independent assessment for the purposes of proceedings, by reading somebody else’s opinion there is the risk of an unconscious predisposition. In other words, one naturally forms some form of picture of that person. And I don’t want to be influenced in any way when I conduct my examinations. I prefer to conduct the examination to its usual standards and to conduct a structured psychiatric interview to form an impression, and then subsequently read all the documentation that is provided, and then consider the formulation of my report.
[Mr Burgess]: Doctor, in relation to your report, were you able to come to - can you explain to the tribunal what your findings were in relation to what the condition was diagnosed as? And we’re talking in late 2016, early 2017, whether you could see it had been diagnosed, and whether you were able to make any diagnosis?
[Dr Terace]: The problems were several. Firstly the mere complexity of this disorder in this young lady because of complex and relatively rare physical disorders, including Ehlers-Danlos Syndrome, which is a hypermobility syndrome of connective tissue; Postural Orthostatic Tachycardia Syndrome, which is a relatively uncommon cardiological condition; as well as the complexity of the history itself, which was of longstanding in a substantial number of domains which crossed trauma, anxiety, depression, social anxiety, and mutism. And it was very difficult at a single interview to be able to form a fully formed diagnosis, even with the other documents provided. I could only offer a possible or provisional diagnosis at that time. And it was my view that the mere complexity of this case from both a physical and psychological perspective, means that Ms Bontes could probably only truly be properly diagnosed in the context of a long-term therapeutic relationship with a consultant psychiatrist. And that’s often the case with such complex disorders. And my opinion was further concurred with by my colleague Dr Madadeniya in August 2018, who formed a similar opinion on that basis. Unfortunately the nature of psychiatry is it’s a very complex field and often very contentious, even with simple disorders. But when one is presented with a clinical picture that is so complex, it’s difficult, and probably inappropriate and unfair to prescribe a diagnosis which would then commit a person to a course of treatment which may be incorrect when you don’t have all the information. And in those cases it typically takes some time to be able to generate a proper diagnostic decision-making process to guide treatment. And I consider that this is one of those cases, as did my colleague.
[Mr Burgess]: Doctor, in that respect could you see on the documents that were provided to you that any psychiatrist had been engaged to undertake that process of prescribing a diagnosis?
[Dr Terace]: No. I understood that Ms Bontes had been assessed by the Child and Adolescent Mental Health Service and would probably have seen a psychiatrist in that context, but that report wasn’t available to me. And there were reports from a Ms Jacqueline Landre, a registered psychologist who had seen Ms Bontes for a number of sessions; and Ms Lahav, a clinical psychologist who had seen her for several sessions. But in my opinion, given the complexity of all the physical and psychological issues, this case really needs to be examined by a psychiatrist who treats this young lady in a relatively long-term way to truly clarify the diagnostic issues and determine what’s going to be the most effective form of treatment and treatments.
[Member Edwardes]: In your view is the condition treatable with – and if so, what outcomes would you think…?
[Dr Terace]: If I form a set of possible or provisional diagnoses in this case, then we would need to think of those as being complex interacting processes. And the reality is that the chronicity of the disorder; the number of psychiatric disorders or processes that appear to be present and the presence of a chronic disabling medical condition worsens the prognosis, and in my opinion - I’m reasonably certain I say this in the report - remission is probably not going to occur, sadly. But if one examines those provisional diagnoses, then the evidence is - for example if we look at selective mutism, for example. Selective mutism is typically associated with social anxiety, and the longitudinal data isn’t good because it’s a relatively rare condition, but the studies we do have demonstrate that some cases resolve spontaneously. It tends to occur early, before the age of five. When it does resolve, the social anxiety disorder that accompanies it tends to persist anyway; and that there’s some conjecture as to whether it improves with age or not. but there are many case studies to support that selective mutism does respond to - specifically to behavioural treatments and to SSRI antidepressants in combination. Then there’s also what I consider to be a chronic mood disorder, which I thought was either a major depressive disorder or what we would call a persistent depressive or dysthymic disorder, which basically means long-term mood disturbance that is not bipolar in type. And when that occurs if it’s long-term of that nature and associated with certain other symptoms or behaviours, one is caused to question whether it has become part of that child and adolescent’s personality functioning. But the reality is that if we look at mood disorders themselves, the natural history of mood disorders is that they tend to recover as a function of time and treatment. So if you look at major depressive disorder for example, Member Edwardes, then 40 per cent of patients will respond to conventional treatments within three months; 50 to 80 per cent within approximately one year; 88 to 95 per cent within five years. In this case the disorder is more chronic, and that implies that it may be associated with personality dysfunction. But I think it would be wrong and incorrect to diagnose a personality disorder in this case. Firstly there’s insufficient evidence; and secondly Ms Bontes is a young person and a maturing personality, and the reality is that personality functioning in itself, which is another important dimension that needs to be considered in this case, does tend to mature. People do mature and people do grow psychologically such that the kinds of personality dysfunctions that occur in adolescents typically are not there with increasing age as a product of time and experience. So I think that her personality function is likely to improve. Although there’s some - I note that there was a history of self-personal abuse in terms of lacerations, self-lacerations over a period of years, and some people - many psychiatrists argue that that’s an indicia of what we call emotional dysregulation which is associated with what we call cluster B personality traits, except that it’s not uncommon in young people, and in young people it tends to improve and resolve with age. And even if it didn’t, there are many cases of such behaviours that do improve with what we call - with long-term psychotherapy, including dialectic behavioural therapy, which is a specific kind of psychotherapy that tends to focus on emotional responses; as compared to cognitive behavioural therapy, which tends to focus on a person’s thoughts and how they relate to behaviour. The third of course is social anxiety, which needs to be considered in this case, because selective mutism, when it occurs, in almost all cases - not all, but almost all cases - is associated with a social anxiety disorder. And social anxiety disorders to improve with time and with specific treatments, both cognitive behavioural and with medication therapy, particularly SSRI antidepressants. Then there’s the issue of trauma and the issue of post-traumatic stress disorder. And the reality is that when that occurs in children, particularly under the age of six, as it appears to be, and if - assuming there was a history of very clear and overwhelming trauma that would be distressing to most individuals before the age of six. And if a post-traumatic stress disorder developed, then it’s difficult for children to express that in the same way that adults do. So it tends to present differently and it’s much more complex and particularly retrospectively when you look back over time without having been there from the outset. If you look at post-traumatic stress disorders, then probably half will recover within two years but up to a third have a more chronic course, but even then post-traumatic stress disorders do improve with specific treatments which are cognitive behavioural therapy, exposure based therapy and courses of medication including anti-depressants but not all. Many cases
[Mr Burgess]: So is it the case then that given that picture that you just painted – so it’s progress over effluxion of time in the context of different rates of improvement?
[Dr Terace]: That’s correct.
[Mr Burgess]: Could that be a summary of what you’ve – what you’re really telling us?
[Dr Terace]: Yes, and I think it is reasonable to argue that this patient would require a minimum of two years therapy, possibly up to five years and that without clarifying the diagnosis as part of long term psychotherapy, one can’t establish the most appropriate forms of treatment because we need to be careful because some forms of treatment can do more harm than good when they’re applied – or when the diagnosis is not correct. For example, if this is not a post-traumatic stress disorder then trauma based therapy may be completely inappropriate because confronting someone with a past trauma can actually aggravate their mental state if it is not applied – if the treatment is not applied correctly. So judiciousness and prudence are required and that was my understanding also from – whilst he did not say this specifically, Dr Madadeniya concluded that diagnosis was required in terms of long term therapy with a psychiatrist.
[Mr Burgess]: That’s within the range of variables really isn’t it?
[Dr Terace]: Yes.
[Mr Burgess]: In respect of that treatment, would the kind of treatment you’re describing – I think you’ve already run through cognitive based, trauma based, pharmacological based, is that something that could proceed without a psychiatrist?
[Dr Terace]: No. In my opinion, no, because the case is so complex because Ms Bontes – firstly because psychiatry is a complex discipline and there are multiple interacting processes in this case and secondly because of the disabling physical conditions – the Ehlers-Danlos Hypermobility Syndrome described I think initially by a paediatric rheumatologist named Dr Lee and subsequently the postural orthostatic tachycardia syndrome which has been shown to have been very disabling as described by a cardiologist, Dr Lee, in his letters. The way – and because there are – there are always physical and psychological factors interacting in any psychiatric disorder but in this case there are certainly interacting physical and psychological factors. For example, in the medical documents I reviewed including the most recent ones in particularity and Ms Bontes’ own statement, he’s described a history of quite substantial suffering in terms of tremors, sweating, fainting, chronic exhaustion and chronic pain. It’s very difficult to know what proportion of those is a product of the specific physical conditions described by the various medical experts.
[Member Edwardes]: There’s an overlap?
[Dr Terace]: Yes, there would be an overlap and the task of a psychiatrist is to assemble – is to attempt to understand – to tease out – to attempt to tease out those interacting processes and also to know what treatments are necessary and what treatments need to be avoided. For example, I’m reasonably certain Dr Lee, the cardiologist – it might have been Dr Mark Nidel, the consultant cardiologist – also specified that SNRI antidepressants were not to be used. SNRI antidepressants means serotonin noradrenaline reuptake inhibitors and they include Venlafaxine, Desvenlafaxine and Duloxetine – because of the effects on her blood pressure and her pulse rate because in overdose for example, they can be cardiotoxic in some cases so they must be avoided. So the psychiatrist would need to liaise with the cardiologist in determining his course of treatment in this case to prevent undue side effects or physical risks and I think that’s the important part of care. So in summary, I honestly don’t believe this case can be managed successfully without a consultant psychiatrist.
[Mr Burgess]: Just finally, with respect to the pharmacological input, you said Dr Lee has said not to be treated with SNRIs. Are there other forms of antidepressants that may be trialled, given SNRIs are not available?
[Dr Terace]: Yes. There are many and in fact whilst – because this is a relatively rare disorder, the studies are few and far between but the studies that exist have shown a positive response to fluoxetine which is an SSRI antidepressant which is not in that category and there are other SSRI antidepressants. There’s Escitalopram, Citalopram, Fluoxetine and Paroxetine and there are also other agents that don’t – should not effect blood pressure or cardiac status such as Vortioxetine which is very useful, particularly in patients with cognitive disturbance as is described by Ms Bontes, although I think that’s a very complex – matter of complex causation and Agomelatine which is not – has no serotonin or noradrenaline uptake potential. It acts on melatonin and it’s particularly useful in cases of chronic sleep disturbance and anhedonia and Ms Bontes certainly described chronic sleep disturbance. So there are certain agents I would avoid such as tricyclic antidepressants, the classic monoamine oxidase inhibitors. I would not – I don’t think a psychiatrist would endeavour to use those without the consent of a second opinion and also the liaison with a consultant cardiologist. In summary, yes, there are other pharmacological options which I believe need to be tried to provide Ms Bontes with the best possible outcome.
[Member Edwardes]: Dr Terace – if you don’t mind, Mr Burgess, I just need to clarify this. In respect to this case which you have had a look at all the papers, is it your expert opinion that a GP, a psychologist or an individual medical specialist in whatever field is not the appropriate person to be managing this case? Is it the case you’re saying that you need an overall multidisciplinary type approach to?
[Dr Terace]: I think that the medical practitioners in this case and the psychologists in this case have done the very best they can under very difficult circumstance and I absolutely have great respect for their efforts and in fact, it is – in the document of one particular psychologist and or in Ms Bontes own affidavit which was subsequently provided to me subsequent to me examining here in which it is described that she was actually able to form words in short sentences with one particular psychologist who she developed trust in and that’s very important because the development of trust with the therapist in treating mutism, whether it be selective or not, is very important but in this case, there are so many issues which are yet unclarified and so many risks given her physical disorders that she needs an architect and the architect for her care should be a consultant psychiatrist to liaise with the other disciplines. The various medical specialists and clinical psychologists. (Transcript pp 39-44)

Under cross-examination by Ms Leggett Dr Terace stated:
[Ms Leggett]: The question is, could she be suicidal because she is frightened for her future and she’s frightened that she will have no financial security at all?
[Dr Terace]: Yes, that’s possible but the mental state is always complex and the history of reoccurring death wishes, suicidal ideation form my understanding was long term, complicated by self-harm in the past as well.
[Ms Leggett]: That’s true?
[Dr Terace]: But the mental state is always complex and I think it’s reasonable to argue that those fears would reasonably effect anybody and would contribute to her present mental state and her suicidal risk.
…
The very fact that your daughter has – I understand from her affidavit, has with difficulty, been able to develop two relationships in itself does not dispute the presence of a psychiatric disorder and nor does it diminish her suffering but what I was trying to express – the view was that my understanding was that from – in fact, my examination of her symptoms – I think that specifically on pages – forgive me, I’ll have to try and find it.
…
I’m not disputing that Ms Bontes is suffering and has a substantial psychiatric disorder but in certain profound psychiatric disorders, it’s virtually impossible to form new relationships. So I was attempting to state that the ability to form a relationship was evidence – was a good prognostic indicator – was evidence of a protective factor and was also evidence that the psychiatric disorder was not profound. It doesn’t mean that it isn’t significant or substantial or causes suffering but by its nature, the ability to form new relationships doesn’t typify extreme or profound psychiatric disorders. What a lay person and a non-psychiatrist considers to be an extreme profound disorder probably differs from that which a psychiatrist uses that term. For example – if I may give you an example, Ms Leggett, major depressive disorder is probably the most common disorder that psychiatrists and general practitioners see in psychiatry and the diagnosis of a mild major depressive disorder means that a person meets all the criteria for a major depressive disorder is suffering is at risk, is impaired and needs further treatment, but the term mild isn’t the way that a person in the public would perceive that term because there is a spectrum of severity which a psychiatric identified. For example, an extreme major depressive disorder is associated with delusions and with what we call catatonia which is the failure to eat and drink or – and diminished motor function and purely as a product of that disorder, a person literally can’t get out of bed or speak. Now, that as a profound psychiatric disorder does not diminish a person with a mild or moderate major depressive disorder has a significant disorder that causes suffering and impairment, suffering to themselves and to others. It simply means that in psychiatric terms, the disorder is not extreme or profound so what I was trying to exemplify in this case was that the ability to form relationships is a good prognostic sign, even if it is complicated and the reality is that most relationships are complicated and at least 50 per cent – in fact most relationships end – at least 50 per cent of marriages end but augers for a better prognosis and the ability to form trust with one individual means the likelihood that a person is likely to form trust with another including their therapist, but the complex set of emotional, behavioural and cognitive patterns required to initiate, form and sustain a relationship don’t typify an extreme or profound disorder. It doesn’t diminish the suffering of your daughter, nor the need for treatment. That is what I was trying to express.
…
[Ms Leggett]: You’ve stated that she can shower herself and therefore you use that as the – as an example and you’ve said therefore she can look after herself basically…
[Dr Terace]: Ms Bontes was described as regularly coming close to collapse associated with the heat and standing, such that her mother always needs to be nearby when she showers which she does everyday on her own without assistance. She also assists her mother with preparing meals once or twice per week but reportedly cannot prepare her own meals without her mother but can use a microwave. The problem in this case, Ms Leggett, is I’m unable to determine what is the cause of the impairment in that field because of the number of physical symptoms described. I don’t know whether coming close to collapse associated with the heat and standing is a product of the physical condition which is my understanding from Dr Lee’s report, or to what degree that is contributed by her mental state. For example, in the reports of – in the medical reports, including that of Dr Lee, he specifically describes those symptoms as relating to postural orthostatic tachycardia syndrome and the problem I have is that my role and my understanding was to – there were clear instructions and I was bound by these instructions, even if I find them difficult – was to assess – attempt to assess impairment based purely on the mental condition which means I can’t consider the physical condition which is a difficult task, and that calculations of impairment required that Ms Bontes was fully diagnosed, fully treated and fully stable and my understanding was that the instruction was that I couldn’t actually calculate impairment unless those criteria were satisfied. Most importantly aside from those instructions, that I couldn’t determine the degree to which the self-care and hygiene and independent living was a product of the physical factors as separate from the psychological factors.
…
[Member Edwardes]: One question, Dr Terace; I want to confirm, is it in your opinion at the time that you made a preliminary assessment of Sarah, is it your view that at that time her condition – her mental health condition, not her physical condition because I can see a whole lot of overlaps here – is it your view at that point in time that she was fully diagnosed, treated and stabilised?
[Dr Terace]: No.
[Ms Leggett]: My contention with the whole thing here is that on one hand you are unable to give – and I understand that – on one visit you are unable to formalise a diagnosis. If you are unable to formulate a diagnosis, then it is not possible to formulate treatment as well. You’ve offered possible treatment but you’ve offered possible treatment for only one or two of those disorders. The fact of the matter is as far as I am led to understand, that the permanent brain damage that my daughter – brain damage is not the correct term but the permanent brain damages that my daughter has sustained as a result of traumatic exposure while she was growing, while her brain was developing – have been led to believe by psychiatrists and psychologists and clinical psychologists since she was four years old that this is not treatable. That this is permanent. This is a permanent disability.
[Dr Terace]: The question of permanent brain damage is - is too complex to summarise with a yes or no answer, because many children with - with early trauma, in fact most children with early trauma, do recover from it with time and/or treatment alone. The chronicity of the disorder, how long it’s been going on, the number of processes that occurred, the chronic medical condition worsened the prognosis. I mean I think remission sadly is unlikely, but I think that the - the - the epidemiological and research evidence, as well as our clinic experience in these fields, shows that many patients do recover in a variety of domains; that is partial recovery is likely to occur with intensive further therapy once more precise diagnostic decisions have been made. Complete remission I think is highly unlikely. Partial recovery I think is likely with intensive further therapy.
[Member Edwardes]: And given that in terms of the context of what you’ve just told me, is it at all possible on the basis of partial recovery that at some point in time of her life, because she’s only 19, that she would be in a position to do some form of productive work?
[Dr Terace]: It is possible, but would require improvement in certain domains. For example, it would certainly require improvement in the inability to separate from her mother or a trusted individual without that resolution of that particular problem. That person would literally have to be in the workplace which is not feasible.
[Ms Leggett]: But it’s a very long road?
[Dr Terace]: It’s a long - yes, it’s a minimum of two years, possibly five years of intensive therapy, and again I don’t think the diagnosis is fully formed in this case. I agree with Dr Madadeniya who I think summarised it even better than I did. I think it would help if I quote him:
Due to the complexities and her presentation, any such assessment can only be done by someone who’s engaged in a long-term therapy relationship with Sarah. A one-off assessment certainly would not be adequate.
I agree entirely with that.
[Member Edwardes]: So to be fair, this young lady at 19 is in a condition today, a serious condition, that she being 19 years of age, might have some form of partial recovery?
[Dr Terace]: Yes, her youth is…
[Member Edwardes]: At some point in time. Again in terms of productive 15 hours’ work per week, we’re still talking about, with a big question mark, maybe somewhere between two to five years. Is that a fair summary?
[Dr Terace]: Yes, I think so.
[Member Edwardes]: Dr Terace, at what point in time would FDTS take place?
[Dr Terace]: I’m sorry?
[Member Edwardes]: Would fully diagnosed, treated and stabilised; at what point in time would that take place?
[Dr Terace]: I agree with Dr Madadeniya
[Member Edwardes]: After 12 months, two years, three years?
[Dr Terace]: I agree with Dr Madadeniya that the diagnostic decisions will probably take long-term psychotherapy - be part of long-term of psychotherapy, and I envisage that the diagnostic decision would probably take between - at least six months of intensive therapy. But responses to treatment would be partial and would probably occur in some - at least some domains, such as the level of mood disturbance, the level of anxiety, reduction in death wishes and suicidal ideation, the posttraumatic symptoms, probably within a period of two years. The issue of selective mutism, just treating that as a symptom alone, as distinct from a diagnosis, because this case is so complex it’s difficult to formulate a diagnosis; selective mutism. The epidemiological evidence is that - isn’t good in the sense that we don’t have a huge body of data because the condition is relatively rare. I mean I think it is quoted by the DSM-5 as being between .03 per cent to one per cent at the very most is the prevalence, meaning that three up to three in 10,000, one in 100 at the very most, probably an average of about one in a thousand, which is a relatively rare psychiatric disorder compared to other psychiatric disorders. But the case studies and the evidence is that - that the condition occurs prior to the age of five, which it did; that many of the cases of selective mutism respond spontaneously with age, and with - and respond to cognitive behavioural - and pharmacological interventions. But in this case it’s difficult for me to determine if and when that selected mutism will resolve. I don’t think there’s enough information at this time. (Transcript 45-55)
The Respondent was given 14 days to address the report of Dr Minogue and at the same time produce written closing submissions. The Applicant had the opportunity to scrutinise those comments and make written closing submissions.
Following the hearing the Respondent submitted a number of documents which have been exhibited accordingly from R15 to R19. Whilst these are not strictly written closing submissions the Tribunal finds them relevant and is prepared to accept them into evidence. The Applicant has been given the opportunity to comment on them and has done so in the submission dated 12 March 2019 (A14). The Applicant provided further submissions dated 15 March 2019; the Tribunal notes these submissions.
The Tribunal notes Exhibit R15 which outlines the number of consultations Sarah had with Jacqueline Landre from 2011 through to 2016:
The dates of consults Sarah has had with me are:

2011 2012 2013 2014 2016

16/2/11 20/3/12 29/10/13 12/3/14 6/1/16

23/2/11 3/4/12 5/11/13 22/11/14 25/5/16

2/3/11 24/4/12

15/3/11 18/6/12

29/3/11 3/7/12

19/7/11 20/7/12

24/8/11 7/9/12

14/9/11 17/10/12

21/11/12

The Tribunal acknowledges correspondence from Jacqueline Landre in the following terms (R16):
This letter is to confirm that I treated Sarah for a number of years from 2011 to 2016. I still have intermittent contact with her mother, Karin Leggett.
Sarah suffers from Post-traumatic Stress Disorder, having been exposed to bad domestic violence when quite young. As a result, she has suffered significantly from Selective Mutism and Generalised Anxiety Disorder. In addition, she began to suffer physical health problems during her adolescence including quite a lot of physical pain, which together with her psychological difficulties resulted in Depression.
Sarah has been treated by a number of mental health professionals over the years, but due to the nature of her psychological issues, specifically the Selective Mutism and Generalised Anxiety Disorder, which includes extreme avoidance among other symptoms, she finds it far more difficult than the average person to attend appointments or engage in study or work in a way that requires interacting with other people in a normal way. Unfortunately when this has not been understood by certain people to be a part of the symptoms of her mental health issues, the pressure this has put on her has resulted in her decompensating badly, with the result being that she has become quite unwell both mentally and physically.
Understandably, witnessing this effect on Sarah has also been extremely distressing for her mother, who also has been diagnosed with Post-traumatic Stress Disorder, and who has gone to extraordinary lengths over the years to see that Sarah could still find ways of developing her social skills, accessing an education and having her artistic talents fostered.
It is my hope that in providing this letter of support for Sarah, it can help other people involved in her treatment or case management to have a better understanding of the complex challenges Sarah and her mother face.
The Tribunal notes Dr Stewart’s report which states (R17):
This letter confirms that Sarah has attended to this Surgery for GP related medical issues since 2001.
With regard to her psychological issues - I can make the following comments.
I can confirm that she has suffered many years of anxiety related symptoms and this has been expressed primarily through Elective Mutism
I gather the attending Psychologist has made a diagnosis of Post-Traumatic Stress Disorder as a major underlying disorder.
This is well documented and she has been under an attending Psychologist for many years, attempting to tackle this through Cognitive Behavioural Strategies and supportive counselling.
I can confirm that this diagnosis has been accepted by the Department of Human Services in the past, for Student Special Needs/ Assistance for Isolated Children benefits
I also would like to highlight that she had been seen initially by the Psychiatrist at CAMHS which referred her to Princess Margaret Hospital Services.
That Psychiatric team recommended their Clinical Psychologist involvement as the sole therapeutic intervention.
She subsequently has had a private Clinical Psychologist for her therapy sessions. I can also confirm a second CAMHS review in 2015. This did involve a phone call to this surgery from a Psychiatrist involved in the review (Dr Hudman) who stated that Psychotropic medication was not indicated for her condition and therefore psychologist involvement as sole therapy was continued.
In summary, on 3 separate occasions, qualified psychiatrists have previously reviewed her clinical situation. Psychotropic medication was never recommended for her clinical therapy at any of these reviews
I note some comment of previous Endep (Amitriptylline ) prescription trial. It is my understanding this was initiated as pain augmentation medication from a Rheumatologist ( Dr lnderjeeth) bu [sic] was soon abandoned due an anticipated poor blood pressure resure secondary to her POTS syndrome symptoms. This medication was not prescribed as Psychotropic medication.
The Respondent’s submission contained in an email dated 12 March 2019 elaborated further (R19):
Diagnosis
Sarah was first diagnosed with severe ptsd when she was 4 years old by a psychologist at Domestic Violence Children’s counselling service. She was diagnosed with severe ptsd, Generalised anxiety disorder and selective mutism by Jaqueline Landre in 2011. Jaqueline Landre assisted with all documentation for the Education department and Centrelink including Carers payment and Isolated Child allowance. Her diagnosis and authority was accepted until Sarah was 16. After the age of 16, Centrelink law dictates that a gp is one of the appropriately qualified practitioners authorised to complete forms. Dr Stewart took over at that point and there is evidence of his cooperation with Jaqueline Landre and co signing of several documents
…
Centrelink accepted dr Stewart as the authority and the diagnosis of ptsd, anxiety and selective mutism.
Diagnosis backed up by clinical psychologist Yvette Williams at pmh. Diagnosis not available in notes on file due to archiving and changes in the computer system. Diagnosis of ptsd, anxiety and selective mutism again confirmed by Natalie Lahav.
…
Treatment
Sarah had extensive trauma based treatment at domestic violence children’s counseling service, including 10 sessions and a weekend camp.
She was seen in excess of 20 times over a period of 2 years by Jaqueline Landre. Dates provided in fax sent 1/3/19
…
Sarah was seen by psychiatrists 8 times over 4 years and not once was it ever suggested that she needed to see a psychiatrist. Quite the contrary, every evaluation resulted in the same suggested treatment to be carried out by Jaqueline Landre. I was told many times about the importance of continuity and for Sarah to continue with someone she trusted and had built up a rapport with.
…
Dr Madadeniya 1/8/18 also stated that diagnosis could only be made by a long term treating physician. She also noted that swapping therapists was not in Sarah’s best interest. The only person ever to suggest she needs a psychiatrist is Dr Terace who is paid by Centrelink. It is clearly being suggested as a means to block her from this benefit and it is definitely not in her best interest. I have made a formal complaint about dr Terace’s conduct to AHPRA ref 00407416.
I have provided a letter from dr Stewart to confirm that he has personally spoken to the psychiatrist from Camhs, where she was assessed twice. There is also 3 emergency letters from pmh and a letter from Camhs. All suggested she remain with treating psychologist.
T16 Sir Charles Gardener hospital-
She was assessed by a psychiatrist and referred back to gp.
Not once was psychiatric care raised as appropriate treatment for Sarah.
Pmh letter 8/5/14
Dr Guaia is the head psychiatrist at pmh and Yvette Williams consulted with him when Sarah was an outpatient. He clearly recommended returning to the care of Jaqueline Landre and told me that was in her best interest.
…
Sarah was referred back to Jaqueline Landre time and time again as evident in the documents provided.
…
Sarah’s condition has remained chronic and is expected to change very little over the next few years and may continue permanently. This is well documented and confirmed by dr Terace. Because of the severity of her disorder and her age at the time of the trauma, Sarah is expected to remain severely affected.
Sarah presents with extremely severe anxiety and mutism. These often are shown as the primary disorders and are often written as such. There are several reasons for this, the lack of space on forms and the need to list the presentation rather than causes. However the cause of the disorders are the ptsd and trauma of her early childhood. This is well documented and stated in all of her medical records.T20
Jaqueline Landre clearly states the severity of her anxiety and mutism, but provided the cause as ptsd later in the document.
…
I have had over 50 sessions with psychologists since Sarah was 4, all in an attempt to help improve her condition and quality of life.
Every major decision regarding education and treatment has been guided by professionals. I have carefully followed psychologists advice and guidance. This has proven to be a very effective way of assisting Sarah and she has made significant improvement over the years. Just a few years ago I was totally unable to leave her, even for a few minutes and I can now go out for several hours and leave her at home. I remain in constant contact with Sarah via phone and text messages as a means of support and it has allowed for a degree of freedom which has been very important for both of us.
24 hour phone contact has helped provide support for Sarah. It helps her feel safe and supported at all times, while allowing her to pursue and foster other relationships. She would be totally unable to see her boyfriend without my support and assistance. I drive them and pick them up as well as waiting in the car or a coffee shop so that they can go out. Sarah likes to go into the city and meet her boyfriend and I wait and remain in the background for support at all times.
It has taken years to reach the point where I can support in the background so that she can have a relationship.
In 2013 Sarah became incredibly ill, with long periods of time where she was almost totally bedridden. She also became very frightened. I will always remember the fear in her eyes when she asked ‘Mum am I dying?’
That was a question she asked me many times over several years. She told me she felt like she was dying.
She was so weak she couldn’t hold up her head or hold a pencil. I was terrified, and felt totally helpless, not knowing what was causing such a severe and prolonged illness. Sarah was often in tears and distraught by her physical health. It was an incredibly difficult time for both of us. I took Sarah to see Sonia Horseman, an Occupational Therapist who helped with exercises and physical therapy. She saw Sonia 2013-2015. But unfortunately Sonia left to work elsewhere in 2015.
…
She was diagnosed with hyper mobility disorder and chronic pain disorder by Dr Lee. Because she was so physically ill, dr Lee recommended a multi disciplinary approach to her treatment and a 2 week stay at pmh.
Because of the increase of mental health issues it was suggested she be assessed by Camhs. They also recommended pmh for a multi disciplinary approach. But pmh were not understanding of the level of trauma and severity of her anxiety. She was unable to cope. I thought and was told it was in her best interest and continued to push her to stay. I slept in a chair next to her bed and tried to support her, but they insisted on me leaving for several hours at a time. They tried to push her to talk. Unfortunately this resulted in Sarah being unable to continue after 3 days. On the third day, after returning home for a shower and to change, I returned to pmh. Sarah was in the foetal position on her bed, rocking and looking for places to hide. Recognising that behaviour from her breakdown when she was 4, I immediately brought up the issue with the staff available. There were no psychologists available on the floor and the doctor on duty tried to push me to leave Sarah. She had not slept or eaten for 3 days. I took her home. Jaqueline Landre and Yvette Williams both agreed that pmh was not a viable option, as Sarah was clearly unable to cope. They had not appropriately dealt with her anxiety. Yvette Williams apologised to me for not being available and for the mismanagement of Sarah while on the ward. She agreed that taking her home was the appropriate action.
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There was every opportunity for Sarah to be treated by a psychiatrist at pmh, had that been regarded as the appropriate treatment. Yvette Williams did however, discuss Sarah’s case with Dr Guaica the head psychiatrist at pmh.
The stay at hospital made Sarah’s condition deteriorate. She felt let down and did not trust doctors.
Sarah had many severe meltdowns and some required me to take her to emergency. I have included some of the reports where she was assessed by psychiatrists. I was on suicide watch and in communications with the mental health care unit via phone on many occasions.
These meltdowns were a regular occurrence as a result of many and varied triggers. But most were simply Sarahs inability to cope with life and social situations.
I attempted to get Sarah out and moving as much as possible. She started ice skating and we would walk around the shops to help with her physical therapy. Because her muscles had wasted so badly, the road to recovery has been long and hard. But Sarah has fought hard to overcome all of her physical obstacles and rebuild her strength. Walking was the preferred form of exercise according to dr Lee and Sarah has been on a graduated program for many years under his supervision.
Unfortunately Dr Inderjeeth proved to be another doctor incapable of understanding trauma and complex mental illness. Although he confirmed her diagnosis of severe hyper mobility and possibly pots, he tried to force Sarah to talk and showed very little tolerance. Sarah will not return to see him as a result.
Sarah becomes sick when stressed. It was the main reason for removing her from mainstream schooling. Her low immunity and tendency to get physically very ill, is well documented. It is mentioned in two separate letters from Jaqueline Landre and is well the support letter dated 3/3/19. It is documented by both Ms Landre and Dr Stewart in the ICA 6/01/16 Stress and upcoming events or inability to cope with social situations commonly cause her to be bedridden. Some of the most common illnesses being tonsillitis and ear infections. They take weeks for her to recover and she requires full care during these times.
When Sarah was in year 3 she was unable to deal with her new teacher and was constantly ill, resulting in her requiring surgery. I had difficulty with the education department because of all of her absences and decided to remove her from school and homeschool her.
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I would like to address the reports by dr Minogue and Dr Terace.
I cannot believe the expense and dirty tactics that have been used by Centrelink to stop a very ill and vulnerable young woman from getting a pension. All of her treating specialists and doctors have been appalled by the behaviour of the Centrelink employees and doctors. She has several significant and disabling disorders that are being dismissed on the basis of legal technicalities.
There is a huge disparity between the conversation that Dr Stewart recounted to me and the version of the conversation that is written in the report by dr Minogue.
According to dr Stewart, he made it very clear that he stood by a medical certificate that he wrote 27/02/17 that Sarah is not capable of working at this time or any time in the near future. He made it clear that Sarah was unlikely to be able to participate for many years due to the severity of her conditions.
He made it very clear that the incorrect handling of any work or training could ‘push her over the edge’.
He made it very clear that she is a very ill and vulnerable young woman.
None of these facts seemed to be worthy of mentioning in the report.
Dr Stewart told me that Centrelink had made up their mind to block this application and have twisted his words to suit there [sic] own needs.
I would suggest a simple phone call to dr Stewart would clear up any misunderstandings generated from a report by a doctor who has never actually seen Sarah. I am quite certain of dr Stewart’s cooperation in this matter, as he is very upset by the way we have been treated by Centrelink and how he has been misrepresented.
I cannot believe that dr could possibly think that my daughters life being put at risk, is not worth mentioning in his report. Perhaps there has been some miscommunication about the term ‘push her over the edge’. This clearly means that my daughter may take her life or suffer a serious deterioration of her mental state, if not handled correctly. But if it wasn’t made clear enough by dr Stewart, it most certainly has been made clear by me. I have spoken to several Centrelink employees about how this process has pushed my daughter to breaking point and to have suicidal thoughts. They have ignored the dangers and failed to act in any way other than despicably.
Dr Terace also agreed that Sarah is such a vulnerable and fragile young woman that incorrectly handled, her condition could deteriorate.
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My daughters life has been endangered by the heartless and reckless actions of Centrelink, and their lawyers and drs. Their treatment of both Sarah and myself is inexcusable. We have been treated like criminals on trial for murder.
Dr Minogue suggested Sarah is capable of 15 hours work. Is he actually suggesting that I go to work with Sarah or is he suggesting she is capable of attending on her own? Because she is not capable of attending anything on her own, she would have a complete breakdown. This is a perfect example of the ignorance of her disorder and the complete unwillingness of Centrelink to acknowledge anything written by her treating drs and specialists. The use of the terms extreme and severe are not used lightly by psychologists.
There have been a series of incorrect handling by unqualified persons who have pushed her to a point where her life is now in grave danger. Centrelink do not have her best interest at heart.
Centrelink have claimed dr Terace has a different diagnosis and opinion from the other treating psychologists. This is in fact not true. Dr Terace has not made a diagnosis and therefore cannot offer treatment suggestions without a diagnosis. He offers opinions very freely, based on one appointment. Those opinions are based on only a very fleeting and narrow view of Sarah and her conditions.
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Sarah has received the appropriate care for her conditions and has been seen by the most appropriate people, in this case a psychologist who specialises in selective mutism and most importantly built up a rapport over many years. For Sarah the most important thing is for her to feel safe and develop trust. It took many years for Sarah to even begin to express herself to Jaqueline Landre. And it took several more years for her to speak even a few words. It would not be in her best interest to begin with a new psychiatrist.
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I have no intention of following any medical advice from Centrelink or their employees. They have caused enough damage. I will however, listen to the amazing team of doctors and specialists that care about Sarah and work together to provide her with the best possible care. The team around her are very aware of the complexity of her conditions and the cross over and interplay of those conditions. I also make it well known to all of her treating practitioners about the complexity and severity of her conditions I ensure that if a specialist is not understanding, we seek out someone who is.

The Tribunal notes the following contentions contained in the Applicant’s submissions:
2.3The Secretary objects to the filing of this evidence on the following grounds:
(a)The application for review was lodged on 23 August 2017 and the Respondent has had over 18 months to file her evidence.
(b)This evidence was not put before the parties prior to or at the hearing of this matter and the Secretary did not have an opportunity to test the evidence or put the evidence to Dr Lawrence Terace, psychiatrist, for his comment.
(c)The parties were given leave to only file further submissions and leave to file further evidence has not been granted.
2.4If the Tribunal is minded to consider the new evidence provided by the Respondent (which the Secretary opposes) then the Secretary maintains the submission that the Respondent’s mental health conditions were not fully, diagnosed, treated or stabilised during the qualification period and the evidence filed by the Respondent in March 2019 does not assist for the following reasons:
(a)The undated report from Jacqueline Landre, registered psychologist lists the Respondent’s presentation history prior to her claim for DSP. Although regular appointments were noted in 2011 and 2012, in the four years prior to her claim for DSP in November 2016 the Respondent presented only twice in 2013; twice in 2014; not at all in 2015; and twice in 2016. To the extent that Jacqueline Landre in her report dated 3 March 2019 states that a symptom of the Respondent’s mental health conditions is ‘extreme avoidance’ and that ‘she finds it far more difficult than the average person to attend appointments’, the Secretary submits that this supports a finding that the Respondent had only intermittently engaged with registered psychologists and that these intermittent and sporadic engagements are insufficient for the Tribunal to conclude that the Respondent’s mental health conditions were fully treated and stabilised during the qualification period, especially in light of Dr Terace’s evidence that the Respondent required extensive treatment by a consultant psychiatrist.
(b)To the extent that Dr Stewart in his report dated 26 February 2019 states that Dr Hudman ‘stated that psychotropic medication was not indicated for her condition’, the Secretary submits that there is no evidence before the Tribunal from the Child and Adolescent Mental Health Service that supports that a phone call occurred or that Dr Hudman expressed such an opinion. Further, the evidence from Dr Terace, an independent consultant psychiatrist, is that there were many pharmacological treatments available for the Respondent’s conditions which would not interfere with the heart condition and would likely improve the mental health conditions. The evidence of Dr Terace should be preferred in circumstances where the evidence of Dr Stewart, a GP, remains untested, in comparison to that of Dr Terace a specialist psychiatrist who was made available for cross-examination enabling his evidence to be tested.
(c)The reports from the Child and Adolescent Mental Health Service following 2 presentations in 2014 (more than 2 years before the date of claim), do not assist the Tribunal in establishing the Respondent’s level of functional impairment as at the date of claim. Those reports note that the Respondent reported that she was “feeling sad intermittently”, had “some sadness and anxiety” and “attends social events with friends”. Those reports do not evidence a “severe functional impairment” arising from the Respondent’s mental health condition (if fully treated and stabilised), and are generally consistent with the view expressed by Dr Terace regarding the applicant’s level of functioning as being less than a severe rating under Table 5 of the Impairment Tables.
(d)(d) Further, the Secretary submits that the Tribunal should place more weight on Dr Terace’s report where it is evident that in formulating his opinion he has had regard to all of the medical information and comprehensively explained how he reached his conclusions. The Secretary notes the comments of DP Boyle in Perich v Secretary, Department of Social Services (Social services second review), at paragraph [49], that‘… the Tribunal prefers the more comprehensive medical opinion of Dr Minogue, over that of Dr Jansz. Dr Minogue provided an extensive forensic medical analysis and gave details as to the factors he took into account in formulating his medical opinion. Accordingly, the Tribunal found the opinion of Dr Minogue to be more comprehensive and rationally based. Although Dr Jansz was the Applicant’s medical practitioner, and although he personally examined her, the Tribunal cannot assess how he formulated his opinion, or the extent (if any) to which his opinion was influenced by the self-reporting of symptoms by the Applicant. The Tribunal therefore finds that the more rationally probative evidence is that of Dr Minogue which supports a moderate impairment rating during the qualification period.’ [Emphasis added]
(e)The Secretary also submits that in circumstances where the Tribunal is presented with a range of opinions the Tribunal should give more weight to the evidence of the independent medical examiner, Dr Terace. The Secretary notes the decision of
(i) In D'Amico v Comcare (Compensation) where the Tribunal stated at paragraph [54] ‘…some caution is required when receiving evidence from a GP who has been treating a person for many years. It is often the case that in such circumstances the bonds of familiarity and friendship subconsciously erode the professional impartiality born of a less familiar and lengthy relationship. It is often the case that a treating doctor falls into error by becoming more of an advocate than a dispassionate professional. This, it should be added, is not a criticism, but simply a reflection of the vicissitudes of human empathy.’ [Emphasis added]
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6.Submissions
6.1The Secretary relies on her Statement of Facts, Issues and Contentions (SFIC) filed on 7 June 2018. These closing submissions should be read in conjunction with the SFIC.
6.2At the commencement of the hearing the Respondent’s representative, Ms Leggett was asked whether she agreed with the AAT1’s findings with respect to the Ehlers-Danlos Syndrome (EDS) / hypermobility / pain condition and the heart condition. Ms Leggett confirmed that she did not disagree with the findings of the AAT1 in light of the “13 week qualification period” but that she wished for the Tribunal to consider all of her daughter’s conditions in respect of how they relate to each other.
6.3As no additional oral evidence was led by Ms Leggett at the hearing regarding the EDS or heart condition, these submissions will only address the additional evidence regarding those conditions which has been provided subsequent to the SFICs.
Heart condition / POTS
6.4The Secretary maintains the submission that the Respondent’s heart condition was not fully diagnosed, treated or stabilised during the qualification period which ran from 24 October 2016 to 23 January 2017 (qualification period).
6.5In respect of diagnosis, the Secretary submits that neither Dr Nidorf nor Dr Lee, cardiologists confirmed a diagnosis of POTS during the qualification period. Notwithstanding that Dr Lee has from 7 April 2017 (after the qualification period) referred to the diagnosis of POTS, the Secretary submits that this remains a presumed diagnosis given the Respondent’s refusal to undergo a “tilt table” diagnostic test which could confirm the existence of the condition. The Secretary relies on the report of Dr Minogue, occupational physician at page 10 of Exhibit A3.
6.6If the Tribunal finds that the condition is fully diagnosed, the Secretary maintains the submission that the condition is not fully treated or stabilised. In particular, the Respondent did not commence treatment recommended by Dr Lee until six months after lodging her claim for DSP and more than two months after the qualification period had ended (T39/159). This opinion is supported by the additional evidence of Dr Minogue at page 10 of Exhibit A3.
5.1Even if the Tribunal were to find that the condition was fully diagnosed, treated and stabilised (which is not conceded), the Secretary reiterates her submissions at paragraph 5.32 and 5.33 of the SFICs, that there is no corroborative evidence that the Respondent suffered from an impairment greater than zero points under Table 1 of the Impairment Tables during the qualification period. To the contrary the Respondent in her statutory declaration dated 10 August 2018 states that she is able to walk around a shopping centre such that the Tribunal could not be satisfied that the Respondent is unable to:
(a)walk around a shopping centre or supermarket without assistance; or
(b)walk from the carpark into a shopping centre or supermarket without assistance; which are descriptors under Table 1 – functions requiring physical exertion and stamina.
EDS / Hypermobility / pain condition
6.7The Secretary maintains her submission that that this condition, however described, was not fully treated and stabilised during the qualification period.
6.8To the extent that Ms Leggett contends that the Respondent suffers from EDS, the Secretary submits that there was no confirmed diagnosis of EDS during the qualification period (or at the present date). The Secretary relies on the report of Dr Minogue at page 10 of Exhibit A3.
6.9The Secretary reiterates her reliance on the report of Dr Indejeeth, dated 6 December 2016 which stated that the Respondent was not receiving any active treatment (T26/127) and the report of Dr Lee dated 14 February 2017 which reported that the Respondent was no longer doing any exercises (T32/144).
6.10In addition to the above evidence, the Secretary relies on the report of Dr Minogue at page 10 of Exhibit A3 in which the doctor noted that:
The hypermobility syndrome was described by the rheumatologist Dr C Inderjeeth (in his letter of 06/12/16) as “not [having] caused any significant damage”; a graduated supervised exercise program (hitherto limited by social anxiety) appears likely to substantially reduce any related functional impacts. Ehlers-Danlos syndrome has not been diagnosed and was noted by Dr Stewart as “suspected”. A chronic widespread pain syndrome was listed by the paediatric rheumatologist Dr Senq-J Lee in 2014, chronic pain syndrome by the rheumatologist Dr C Inderjeeth in 2016 and ‘Chronic fatigue/fibromyalgia’ by the cardiologist Dr E Lee in 2017. Due to lifestyle-related physical deconditioning being a likely contributing factor to Ms Bontes’ pain symptoms, these conditions cannot be deemed fully treated and stabilised in my opinion, pending reasonable assisted efforts to increase her physical activity levels (emphasis added).
6.11The Secretary submits that, as the conditions were not fully diagnosed, treated and stabilised during the qualification period, no impairment rating can be assigned to any impairment arising from those conditions.
Mental Health Condition
6.12The Secretary submits that the Respondent’s mental health conditions were not fully, diagnosed, treated or stabilised during the qualification period. In addition to the submissions made in the SFIC, the Secretary relies on the oral evidence of Dr Terace, consultant psychiatrist who was called to give evidence and appeared at the hearing in person.
6.13Dr Terace’s oral opinion did not stray from his lengthy and considered report, except to note that he had reviewed additional evidence by way of statutory declarations and further medical evidence from psychiatrist Dr Madadeniya, which he noted confirmed his previously expressed opinion.
6.14Dr Terace opined that the Respondent’s mental health conditions could not be said to have been fully diagnosed, treated and stabilised during the qualification period, or in fact at the present date.
6.15Given the complexities and comorbidities associated with the Respondent’s conditions, Dr Terace opined that only a consultant psychiatrist would be in the position to appropriately diagnose and “be the architect” for an appropriate treatment plan for the Respondent. He opined that this would involve the consultant psychiatrist liaising with treating psychologists and the treating cardiologist. Dr Terace noted that he had not seen any evidence that suggested the Respondent had regularly engaged with a psychiatrist to date.
6.16Notwithstanding Ms Leggett’s contention at the hearing that the Respondent had “regularly seen psychiatrists, psychologists and clinical psychologists” for her mental health conditions, the Secretary submits that there is no evidence of this before the Tribunal relating to the qualification period to substantiate Ms Leggett’s contentions. The Secretary submits that the evidence before the Tribunal supports a finding that the Respondent had intermittently engaged with registered psychologists and an inference that she has only engaged with psychiatrists in relation to acute periods as an inpatient, prior to making her claim for DSP. The Secretary submits that these intermittent engagements are insufficient for the Tribunal to conclude that the Respondent’s mental health conditions were fully treated and stabilised during the qualification period.
6.17During cross examination, Ms Leggett stated that her daughter had never attempted treatment with medication. Whilst Dr Terace acknowledged the evidence of Dr Lee, Cardiologist regarding the contraindication for treatment with serotonin-norepinephrine reuptake inhibitors (SNRI), he opined that there were many pharmacological treatments available for the Respondent’s conditions which would not interfere with the heart condition and would likely improve the mental health conditions.
6.18When asked by the Tribunal whether the Respondent could expect treatment to result in full remission, Dr Terace stated (words to the effect) that there was “a very good chance and a likely chance that she would improve significantly in several domains” within two to five years. The Secretary notes that this opinion is consistent with Dr Terace’s written report
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6.20The Secretary submits that the evidence before the Tribunal overwhelmingly supports a finding that the Respondent’s mental health conditions were not fully diagnosed, treated and stabilised during the qualification period. The Secretary therefore submits that the conditions can not be assigned an impairment rating under the Impairment Tables.
In further submissions dated 15 March 2019, the Applicant noted:
1.2On page two, of the Respondent’s submissions she states ‘she was seen in excess of 20 times over a period of 2 years by Jacqueline Landre. Dates provided in fax sent 1/3/19.’ The Secretary refutes this submission and submits that the undated letter from Jacqueline Landre evidences that at most the applicant was seen only 17 times over a two year period namely, the period 2011 and 2012.
1.3On page two, of the Respondent’s submissions she states ‘Sarah was seen by psychiatrists 8 times over 4 years and not once was it ever suggested that she needed to see a psychiatrist.’ The Secretary refutes this submission and submits that there is no evidence to corroborate that the Respondent presented to a psychiatrist eight times over four years.
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1.6The Secretary acknowledges the Respondent’s submission on page two that the Respondent was referred back to Jacqueline Landre “time and time again” and submits that a referral is not sufficient to evidence that the recommended treatment has been undertaken. To the contrary even if the Tribunal accepts that the Respondent was referred back to Jacqueline Landre “time and time again” the evidence indicates that the Respondent only presented to Jacqueline Landre twice in 2013, twice in 2014, not at all in 2015, and twice in 2016.
1.7On page 2, the Respondent submits that “Sarah’s condition has remained chronic and is expected to change very little over the next few years and may continue permanently. This is well documented and confirmed by Dr Terace.” The Secretary refutes this submission and submits that this was not Dr Terace’s evidence. To the contrary Dr Terace’s opinion is that “significant improvement should occur in some or many domains of her alleged psychiatric disorders with such treatment, despite the chronicity of the condition”. This was repeated in Dr Terace’s evidence and despite a lengthy cross examination by the Respondent, Dr Terace’s opinion did not change.
CONSIDERATION
Whether the Respondent suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal at the date of the claim, the Tribunal finds that the Respondent suffered from a number of medical conditions during the Qualification Period as outlined in the many medical reports before the Tribunal.
The Tribunal has considered these reports as part of the evidence before it.
The Tribunal notes and accepts these conditions have impacted in a debilitating way on the quality of life for the Respondent.
The Tribunal therefore accepts that these medical conditions enable the Respondent to satisfy section 94(1)(a) of the Act.
Whether the Respondent’s impairments receive an impairment rating of 20 points or more
Medical condition – Mental health
The Secretary submits:
5.26Should the Tribunal find that the Respondent’s mental health condition(s) is/are fully diagnosed, treated and stabilised (which is not conceded), the Secretary contends that any combined impairment arising from such conditions would at most rate no more than 5 points under Table 5 of the Impairment Tables.
5.27The Secretary further submits that there is no corroborating evidence that the Respondent meet the descriptors for a severe (20-point) functional impact on activities involving mental health function during the qualification period as she did not have severe difficulty with most of the descriptors.
5.28The Secretary relies on Dr Terace’s assessment at pages 21 and 22 of his report in support of this contention:
(a)In relation to the ‘self-care and independent living’ descriptor, the Secretary contends that the Respondent’s mental health condition results, at most, in a mild functional impact. In support of this the Secretary relies on the following:
1.Dr Terace reported the following:
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(c)In relation to the ‘interpersonal relationships’ descriptor, the Secretary contends that the Respondent’s mental health condition results in no functional impact.
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(d)In relation to the ‘concentration and task completion’ descriptor, the Secretary contends the Respondent’s mental health condition results in no functional impact. In support of this the Secretary relies on the following:
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2.The Secretary submits that there is no corroborative evidence that the Respondent has difficulty concentrating on any task or conversation for more than 10 minutes as required by the descriptor for a severe functional impact and in any event the Respondent’s mother, at least partially, ‘related [the impairment] to [the Respondent’s physical problems’.
(e)In relation to the ‘behaviour, planning and decision making’ descriptor, the Secretary acknowledges Dr Terace’s comments in relation to the Respondent’s claims of self-harm in the past and the Respondent’s death wishes and accepts that the Respondent’s mental health condition results in a severe functional impact.
(f)In relation to the ‘work/training capacity’ descriptor, the Secretary submits that there is no corroborating evidence that the Respondent is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness as required by the descriptor for a severe functional impact. To the contrary, the Respondent was home-schooled and completed the equivalent of year 12 as reported to Dr Terace. The Secretary submits that the Respondent’s mental health condition results in no functional impact in relation to this descriptor.

The Tribunal finds there is sufficient medical evidence to determine that this condition is fully diagnosed. The report of Ms Lahav has confirmed in the mind of the Tribunal that the experiences suffered by the Respondent in her formative years have had a significant impact on her long term mental health.
Whilst the Tribunal notes the report of Ms Lahav of 27 February 2018, being some 12 months outside the Qualification Period it is also mindful of consultation commencing 17 January 2017 and 24 January 2017.
Ms Lahav noted:
It appears that a significant and seminal contributing factor in Sarah’s psychological development has been exposure to trauma in her formative years... This included the likes of witnessing her father set fire to the house while Sarah and her mother were in it, her father threatening to kill Sarah if her mother left and experiences of her father physically trying to take her away from her mother during acts of aggression. (R3)
The AAT1 found the Respondent’s mental health condition was fully diagnosed.
The Tribunal accepts the historical narrative both medical and personal provided by the Respondent’s mother indicates that the Respondent has a mental health condition. This was also confirmed by Dr Terace and Dr Minogue.
Dr Minogue’s assessment is noted accordingly (A3):
1.Were, during the subject DSP qualification periods (7 November 2016 to 6 February 2017 and 28 March to 27 June 2018), the documented medical conditions fully diagnosed, fully treated and fully stabilised (FDTS)?
A chronic anxiety disorder (probably social anxiety disorder) and related selective mutism can in my opinion be accepted as fully diagnosed on the basis of multidisciplinary assessment at Princess Margaret Hospital for Children in 2014, the GP Dr Stewart’s more recent assessment and the clinical psychologist Ms N Lahav’s initial assessment of 24/01/17. However in terms of her overall mental health these diagnoses may well be partial. I consider that Ms Lahav’s diagnosis of post-traumatic stress disorder (PTSD) cannot be accepted due to the lack of independent corroboration of early childhood trauma as reported by Miss Bontes’ mother, and Dr Terace’s opinion on the lack of a definitive mental health diagnosis. The selective mutism and “difficulty individuating” (clinical psychologist Ms Y Williams February 2015) present major barriers to effective psychotherapy, however her increasing social engagement, as demonstrated by her interactions with two boyfriends since age 16, suggests a better prognosis as an adult. In my opinion the overall mental health condition cannot be accepted as fully treated and stabilised due to Dr L Terace’s expert recommendation of her referral to a treating psychiatrist.
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In regard to PTSD the HPAU psychologist advised: “Ms Lahav’s diagnosis of PTSD isn’t sufficient to confirm a mental health condition under Table 5 (Mental Health Function) of the DSP Impairment Tables. The introduction to Table 5 makes clear that “the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by psychiatrist)”. […] My understanding is that Ms Lahav has relied almost exclusively on information provided by Ms Bontes’ mother to formulate her case and a diagnosis of complex PTSD” (which is not in agreement with specialist psychiatric assessment). As noted above the GP Dr Stewart confirmed on discussion with the author of this report that he has not diagnosed PTSD.
The Tribunal having considered all the evidence before it found that the mental health condition of the Respondent is considered to be fully diagnosed. The evidence of Dr Stewart (R17) and Jacqueline Landre (R16) confirmed Ms Bontes has in the past been diagnosed by a psychiatrist.
Dr Terace’s evidence in terms of his assessment of Ms Bontes on an holistic basis persuaded the Tribunal that this condition was not fully treated and stabilised during the Qualification Period. As a result it cannot be described as permanent, and no impairment points can be assigned to the condition, for the purposes of DSP.
Medical condition - Inappropriate sinus tachycardia and POTS
The Tribunal notes (A1):
5.29The Secretary contends that the Respondent’s inappropriate sinus tachycardia and POTS condition were not fully diagnosed, not fully treated and not fully stabilised during the qualification period.
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5.31The Secretary contends that there is no medical evidence that suggests that the recommended treatment is unlikely if complied with by the Respondent, to result in a substantial improvement in functional capacity and accordingly, the condition cannot be considered to be fully treated and stabilised.
The AAT1 found (T3, 13):
36.The tribunal noted reports of several past emergency department attendances with rapid heart rate. These included an attendance at PMH at the age of five years.
37.The tribunal noted that Dr Edmund Lee first saw Miss Bontes in February 2017, several months after her claim was lodged. He has confirmed the diagnosis of POTS, which is a rare condition, poorly understood. He pointed out that there is no good treatment and the disease is often disabling for many years. He said he would try and optimise treatment but thought Sarah would be disabled for some years and would struggle to attain employment.
38.The tribunal noted that Dr Lee has recommended physiotherapy and an exercise program. It is not clear if Miss Bontes is participating in those activities.
39.The tribunal determined that, at the time of the claim, the problem of POTS was not fully diagnosed, not fully treated and stabilised. It generates no points from the Impairment Tables.
Dr Minogue’s report states (A3):
Likely postural orthostatic tachycardia syndrome (POTS) with inappropriate sinus tachycardia has been diagnosed by the cardiologist Dr E Lee (without tilt table confirmation as pointed out by Dr Stewart) and he has expressed pessimism about the prognosis even with further treatment. However on initial assessment in February 2017 he mentioned lifestyle-related ‘gravitational deconditioning’, and he appears to have accepted the validity of a wide array of symptoms as reported mainly by Ms Bontes’ mother. In December 2016 the cardiologist Dr M Nidorf noted that POTS “tends to be quite benign”.
In my opinion Dr Lee’s clinical focus is likely to be restricted mainly to his own speciality, and that a more holistic view of treatment and prognosis, with optimal attention to underlying psychosocial and lifestyle factors, is to be preferred. I consider that this condition can reasonably be deemed not fully treated and stabilised, as it is likely to have arisen secondary to the factors mentioned which are yet to be fully addressed.
The Tribunal found on the evidence before it that this condition was not fully diagnosed during the qualification period. A proper diagnosis did not occur until February 2017, outside the Qualification Period when Dr Lee stated “In summary, I agree that Sarah likely has POTS and or inappropriate sinus tachycardia” (T32, 144).
There is no evidence before the Tribunal to indicate this condition was fully diagnosed, treated and stabilised during the Qualification Period and therefore no impairment points can be generated.
Medical condition – Hypermobility disorder and chronic pain syndrome
The Secretary accepts this condition was fully diagnosed, but not fully treated or stabilised during the Qualification Period.
The Secretary argues (A1):
5.38The Secretary submits that the Respondent has not undertaken reasonable treatment during the qualification period namely, the Respondent has not complied with recommended treatment including attending a rheumatology multidisciplinary team for ongoing rehabilitation and has not taken prescribed medication. The Secretary contends that there is no medical evidence that suggests such treatment is unlikely, if complied with by the Respondent, to result in a substantial improvement in functional capacity and accordingly, the conditions cannot be considered to be fully treated and stabilised.
5.39The Secretary submits the treatment via a multi-disciplinary program is ‘reasonable treatment’ and there is no evidence that suggests that such treatment would be unlikely to result in significant functional improvement (per Fanning, correctly considering the test in paragraph 6(6) of the Rules). The fact that such treatment and medications were recommended by the Respondent’s treating practitioners strongly suggests that it was considered that such intervention would be likely to assist the Respondent.
The AAT1 found (T3, 17-18):
32.The tribunal noted reports from Dr Senq-J Lee who confirmed the diagnosis of hypermobility and chronic widespread pain syndrome. He noted that Sarah had not been compliant with treatment.
33.The tribunal noted that Miss Bontes is now seeing an adult rheumatologist, Dr Inderjeeth. He saw her initially in December 2016, after the DSP claim had been lodged.
34.The tribunal determined that, at the time of the claim, the problem of hypermobility disorder with widespread pain was fully diagnosed, but was not fully treated and stabilised. It generates no points from the Impairment Tables.
Dr Minogue stated (A3):
Chronic fatigue syndrome as diagnosed by Dr Stewart appears likely to be secondary to the psychological and sleep disorders, and to a restricted lifestyle with long-term physical deconditioning. With effective treatment of the sleep disorder and a graduated progression to a more active lifestyle, I consider that significant improvement within the next two years could reasonably be anticipated.
The hypermobility syndrome was described by the rheumatologist Dr C Inderjeeth (in his letter of 06/12/16) as “not [having] caused any significant damage”; a graduated supervised exercise program (hitherto limited by social anxiety) appears likely to substantially reduce any related functional impacts. Ehlers-Danlos syndrome has not been diagnosed and was noted by Dr Stewart as “suspected”. A chronic widespread pain syndrome was listed by the paediatric rheumatologist Dr Senq-J Lee in 2014, chronic pain syndrome by the rheumatologist Dr C Inderjeeth in 2016 and ‘Chronic fatigue/fibromyalgia’ by the cardiologist Dr E Lee in 2017. Due to lifestyle- related physical deconditioning being a likely contributing factor to Ms Bontes’ pain symptoms, these conditions cannot be deemed fully treated and stabilised in my opinion, pending reasonable assisted efforts to increase her physical activity levels.
The Tribunal accepts on the basis of the medical evidence before it that whilst this condition was fully diagnosed during the Qualification Period, it was not fully treated and stabilised, and cannot be considered permanent. As a result no impairment points can be generated.
Medical condition – sleep apnoea
Dr Minogue states (A3):
The reported sleep disorder appears likely to be secondary to psychological and lifestyle factors and may well benefit from a psychiatrist’s assessment, potentially with prescription of optimal medication. It has not been formally diagnosed by a sleep physician and can reasonably be deemed not FDTS in my opinion.
The Tribunal can find no medical evidence before it to indicate that this condition was fully diagnosed, treated and stabilised during the Qualification Period.
In the Tribunal’s view, whilst there may have been diagnoses in respect of some of the Respondent’s medical conditions, there is no evidence of a structured course of treatment for the purpose of stabilising the medical conditions during the Qualification Period.
In some cases the evidence shows reluctance on the part of the Respondent to undertake treatments that might have assisted with her well-being.
The Tribunal notes a statement provided by the Respondent outlining the traumatic circumstances which have led to her current predicament. By any measure as a young child aged between two and four years of age, the Respondent was put through an horrific set of circumstances which no child should have to endure (R1).
The issue for the Tribunal to address is whether, on the basis of the medical evidence before it the medical conditions were fully diagnosed, treated and stabilised during the Qualification Period. In this the Tribunal finds the evidence of Dr Terace and Dr Minogue to be compelling.
Whether the Respondent has a continuing inability to work
The Tribunal finds the medical conditions exhibited by the Respondent generate zero points under the Impairment Tables and therefore fail to satisfy s 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act and determine whether the Respondent has a continuing inability to work.
DECISION
For the reasons above, the Tribunal sets aside the decision of the AAT1 and substitutes a decision that the Respondent did not satisfy s 94(1)(b) of the Act and does not qualify for DSP.

I certify that the preceding 87 (eighty seven) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

........[Sgd].........................................................
Associate
Dated: 20 March 2019

Date of hearing: 19 February 2019

Date final submissions received: 15 March 2019

Counsel for the Applicant: Mr A Burgess

Solicitors for the Applicant: Sparke Helmore

Advocate for the Respondent: Ms K Leggett

[2019] AATA 461

20 March 2019

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2011	2012	2013	2014	2016
16/2/11	20/3/12	29/10/13	12/3/14	6/1/16
23/2/11	3/4/12	5/11/13	22/11/14	25/5/16
2/3/11	24/4/12
15/3/11	18/6/12
29/3/11	3/7/12
19/7/11	20/7/12
24/8/11	7/9/12
14/9/11	17/10/12
21/11/12

Date of hearing:	19 February 2019
Date final submissions received:	15 March 2019
Counsel for the Applicant:	Mr A Burgess
Solicitors for the Applicant:	Sparke Helmore
Advocate for the Respondent:	Ms K Leggett