Carroll and Repatriation Commission
[2007] AATA 1532
•10 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1532
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200501076
VETERANS' APPEALS DIVISION ) Re GARRY FRANCIS CARROLL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G. D. Friedman, Senior Member Date:10 July 2007
Place:Melbourne
Decision: The Tribunal affirms the decision under review. (sgd) G. D. Friedman
Senior Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - alcohol dependence or alcohol abuse - failure to attend alcohol rehabilitation program - whether inability to obtain appropriate clinical management - depressive disorder- anxiety disorder - alcohol dependence or abuse (in remission) - brain damage - whether service-caused
Veterans' Entitlements Act 1986 ss 5D, 70, 120(4), 120B
Brew v Repatriation Commission (1999) 94 FCR 80
Re Croxford and Repatriation Commission [2003] AATA 393
Re Owens and Repatriation Commission [2007] AATA 1169
Re Rawson and Repatriation Commission [2005] AATA 243
Repatriation Commission v Wedekind [2000] FCA 649Repatriation Commission v Wellington (1999) 57 ALD 507
REASONS FOR DECISION
10 July 2007 G. D. Friedman, Senior Member 1. Garry Carroll served in the Australian Army between 1979 and 2002 as a cook and during this period he drank alcohol to excess. He claims that his medical conditions are related to his Army service in that he was unable to gain access to suitable treatment for his alcohol problem.
2. The issues before the Tribunal are:
·What are the medical conditions suffered by Mr Carroll?
·Which Statement of Principles (SoP) is relevant?
·Was Mr Carroll unable to obtain appropriate clinical management for alcohol dependence or alcohol abuse?
·If Mr Carroll was unable to obtain appropriate clinical management, did this make the condition worse or materially contribute to the conditions; and did Mr Carroll have the conditions prior to or during Army service?
·Are the other medical conditions related to service?
WHAT ARE THE MEDICAL CONDITONS SUFFERED BY MR CARROLL?
3. A psychologist and several psychiatrists made diagnoses which in general terms agree that Mr Carroll suffers from alcohol dependence or abuse and a depressive or anxiety condition. The Tribunal accepts the diagnosis by Professor H. Whiteford, consultant psychiatrist, who had extensive involvement with Mr Carroll as a treating psychiatrist in 2001 and 2002. He diagnosed alcohol dependence and major depressive disorder; generalised anxiety disorder; dysthymic disorder (major depressed mood); alcohol dependence (in remission); and organic mental disorder (brain damage related to chronic alcohol abuse). The Tribunal also accepts Professor Whiteford’s evidence that the diagnosis of alcohol abuse and alcohol dependence in remission indicates that the underlying condition remains, even though Mr Carroll has not consumed alcohol since about 2002.
WHICH STATEMENT OF PRINCIPLES IS RELEVANT?
4. Mr Carroll’s service was within Australia and is eligible service under the Veterans’ Entitlements Act 1986 (the Act). Section 120(4) of the Act requires the Tribunal to decide whether Mr Carroll’s conditions were defence-caused to the Tribunal’s reasonable satisfaction. The Tribunal is also required to apply a SoP for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP.
5. The relevant SoPs are:
·SoP No. 77 of 1998 concerning alcohol dependence or alcohol abuse
Factor 5(e) provides:
inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Paragraph 6 states that factors 5(c) to (e) only apply where there is material contribution to, or aggravation of, the condition, where the condition was suffered or contracted before or during, (but not arising out of) Mr Carroll’s service as provided for in s 70 (5)(d) of the Act.
·SoP No. 59 of 1998 concerning depressive disorder
Factor 5(g) provides:
having a clinically significant psychiatric condition within the one year immediately before the clinical worsening of depressive disorder;
Paragraph 6 states that factors 5(e) to (j) only apply where there is material contribution to, or aggravation of, the condition, where the condition was suffered or contracted before or during, (but not arising out of) Mr Carroll’s service as provided for in s 70 (5)(d) of the Act.
·SoP No. 2 of 2000 concerning anxiety disorder
Factor 5(a)(vi) provides:
having a clinically significant psychiatric condition within one year immediately before the clinical worsening of anxiety disorder;
Paragraph 6 states that factor 5(a)(vi) only applies where there is material contribution to, or aggravation of, the condition, where the condition was suffered or contracted before or during, (but not arising out of) Mr Carroll’s service as provided for in s 70 (5)(d) of the Act.
6. There is no applicable SoP for organic mental disorder.
WAS MR CARROLL UNABLE TO OBTAIN APPROPRIATE CLINICAL MANAGEMENT FOR ALCOHOL DEPENDENCE OR ALCOHOL ABUSE?
7. Mr Carroll said that during his service he was unable to obtain appropriate management of his alcohol dependence or abuse because the Army did not ensure his attendance at the Alcohol Rehabilitation and Education Program (AREP) at the Royal Australian Air Force (RAAF) base in Richmond, New South Wales in 1994. As a consequence his alcohol dependence worsened.
8. Mr Carroll told the Tribunal that he left school at the age of 15 years and worked as a process worker then managed a menswear store before enlisting in the Army and training as a cook. He said that he regarded himself as a social drinker before his enlistment, but his consumption of alcohol increased progressively during his service because of peer pressure, working in a hot kitchen for long periods, and the ready availability of beer.
9. Mr Carroll stated that in the 1980s he recorded a number of driving convictions which he said were related to alcohol. He also attributed his increased drinking to his promotion to the rank of sergeant in 1990, which he said he did not seek, and about which he felt uncomfortable. In 1993 he was found guilty by the Army of a number of disciplinary offences, and his alcohol problem was identified. He said that he attended Alcoholics Anonymous on two occasions, but did not find the sessions helpful because he did not feel comfortable talking about his problems in front of strangers. In February 1994 he was convicted in a civil court of alcohol-related driving offences and was sentenced to an Intensive Corrections Order (ICO) for 12 months. Mr Carroll explained that in about June 1994 he was scheduled to attend an AREP course, which required release from the conditions of the ICO preventing him from leaving Victoria. He said that he was willing to attend, but was never given details of the course and his attendance did not eventuate because the arrangements had not been made by the Army, and without authorisation he could not undertake the course.
10. In respect of his drinking at the time, Mr Carroll told the Tribunal that it became worse, and that counselling by senior officers was unhelpful.On 20 June 1994 he received from his Commanding Officer a Notice to Show Cause Why Discharge Should Not Occur based on civil and military offences, poor conduct and poor performance. In his reply dated 11 July 1994 (Exhibit R1, page 186) he acknowledged his alcohol problems and said that he was taking steps to deal with his drinking problem:
…
I now realise and accept my problems with alcohol and I have taken my own steps to seek treatment. It was mooted through the Department of Corrections and the Army that I would be sent on one of the Army Drinking and Drug Abuse courses, however, I note that no definite action has been taken in that regard to date. Despite that I have had private counselling and I have now given up drinking.
11. On 12 August 1994 the Commanding Officer recommended that discharge proceedings commence, but in 1995 the Show Cause notice was withdrawn and he was issued with an Administrative Warning for Discharge. If in the following five years any further incidents involving harassment, civilian driving offences or military offences involving alcohol occurred, this would result in a recommendation by his Commanding Officer that he be discharged. In April 1995 Mr Carroll was posted to Enoggera in Queensland. In 2001 he was referred to a private hospital in Brisbane for alcohol dependence and underwent detoxification under the guidance of Professor Whiteford. In 2002 he was admitted as an inpatient for treatment of depression and alcohol-related problems. He stated that he was prescribed various medications and ceased drinking at the end of 2002.
12. Mr Carroll said that he was discharged from the Army because of medical opinion that his psychiatric condition prevented him from undertaking remunerative employment. Under cross-examination he said that all his work and relationship problems were alcohol-related. He agreed that at various times during his Army career he had not told the truth about the frequency of his attendance at Alcoholics Anonymous, and had understated his alcohol consumption. He said that the reason for being untruthful was that he wanted to complete 20 years’ service to qualify for a service pension, and he was anxious to keep his family intact. He also agreed that he wanted a quick fix solution (including medication) to his drinking problem, and that counselling was not an effective treatment option for him.
13. In respect of AREP, Mr Carroll said that he was aware that he was supposed to attend in Richmond, and was prepared to attend, but was never told details of the course (such as dates and where he was to report). He believed that arrangements had to be made by the Regimental Aid Post (RAP) and the Commanding Officer. He said that he took no follow-up action because the Army had the responsibility to ensure his attendance, and had failed to enforce its own rules. He said that at the time he did not know that attendance at AREP was voluntary, and he believed he had no choice because he was told he was to undertake the course. Mr Carroll denied that he had refused to attend AREP. He agreed that his comment in response to the Show Cause notice that he had given up drinking was incorrect.
14. Mr Carroll agreed that at the hearing of the Veterans Review Board (VRB) on 13 October 2005 (Exhibit R11) the following conversation occurred (page 15 of the transcript):
MS FRISTACKY: Yes. Strongly recommended he be referred to the RAAF hospital at Richmond for rehabilitation, counselling, etc.
MR JACKSON: Yes.
MR CARROLL: It never happened, ma’am. It never happened.
MS FRISTACKY: So why didn't it happen?
MR CARROLL: I have no idea, ma’am. I filled out a bit of paper saying I agreed to go, etcetera, etcetera, and it just never ever happened. One of the reports that I wrote asked them what’s going to happen. I think that was when I was being charged.
MRS CARROLL: He did tell me when he came back that the course was already two weeks started and this was in the November and that he wasn't able to go on the course until it started again or something, that it had to…
MS FRISTACKY: You didn't attend the start of the course because the intention it seems was that you attend this course. You indicated you were willing to.
MR CARROLL: Yes, ma’am, I never ever went.
MRS CARROLL: The course was already two weeks into it. I don't know whether that's correct or anything, but…
MS TREBLE: This is in March. There was a follow-up in at least July.
MRS CARROLL: It was over the Christmas period, I think.
MR CARROLL: It doesn't matter what period it was, it never ever happened.
Mr Carroll said that at no time did he attend a course at Richmond, and he had no idea of the reason. In relation to his wife's comments that the course was already two weeks into it he said he made no attempt to attend any course.
15. Ms J. Carroll, Mr Carroll’s wife, told the Tribunal that his alcohol abuse during his Army service caused a lot of family problems, and was well known to senior officers. She said that the Army never did anything to help her or her children, and positively encouraged the use of alcohol, for example providing Mr Carroll and others with alcohol as a reward for achieving good results. In respect of AREP Ms Carroll said in a written statement dated 21 July 2006 (Exhibit A13):
At one stage whilst we were at Enoggera (in about 1994) Garry told me that the RAP had decided to refer him for rehabilitation treatment for his alcoholism at Richmond. I was ecstatic (as were the children). It was like a big weight being lifted. I was told by Garry there would be a delay until the next rehabilitation course commenced. As it transpired, Garry never went to rehabilitation. I found out a long time afterwards that Garry had subsequently told the RAP that he had abstained from alcohol and that rehabilitation was not required. Apparently the RAP accepted his word for it. The fact is that Garry had told them a lie. Nobody from the army ever spoke with me about Garry’s alcoholism or violence or other behavioural problems and as far as I am concerned, everything was always swept under the carpet by the army. I believe that this was so because his superior officers always regarded him as a good bloke and he seemed to perform his duties to standard.
Ms Carroll said that the proposed referral to AREP was the nearest to counselling that Mr Carroll ever received during his Army service. She said that she worked in the Sergeants’ Mess and on numerous occasions reported to work with obvious signs of physical abuse.
16. In relation to her evidence at the VRB that Mr Carroll told her in November 1994 that the AREP course had started two weeks earlier, Ms Carroll agreed that she had not seen any official documentation, but had relied on Mr Carroll's word. She said that Mr Carroll had never told her that he did not want to attend the course. He had said that he would attend the next one, and had indicated to her that medical staff would keep him informed. However she discovered at the VRB hearing that Mr Carroll had told medical staff at the RAP that he had given up drinking, which was incorrect.
17. Professor H. Whiteford, consultant psychiatrist, told the Tribunal that he supervised Mr Carroll’s attendance at the Alcohol and Drug Program commencing in 2001. Professor Whiteford explained that Mr Carroll had suffered from depression for some time before admission to hospital as an outpatient, but that the symptoms were masked by the use of alcohol. He said that alcohol had caused cognitive impairment resulting in memory loss and problems of poor impulse control, frustration and aggression. There was also liver damage. Professor Whiteford noted that in some circumstances compulsion, as well as rapport and trust, is necessary to break a cycle involving alcohol consumption. He said that the community is best protected from potential re-offending behaviour by appropriate psychiatric treatment that would remove the likelihood of future alcohol consumption. He said that in about 1993 or 1994 appropriate clinical management of alcohol dependence or abuse would have been medical and psychological intervention, involving physical assessment and cognitive therapy with social support networks.
18. In a report dated 31 January 2007 (Exhibit A16) Professor Whiteford said that Mr Carroll’s alcohol abuse probably commenced in the early to mid 1980s and the dependence was established by around 1990. He noted that the alcohol abuse and dependence worsened during Mr Carroll’s service, and said that the availability of alcohol would have increased the problems. Professor Whiteford said that Mr Carroll suffered from depression and anxiety during the period of treatment and coped with life stressors by consuming alcohol. He stated that organic brain damage probably commenced about the time that alcohol dependence started in approximately 1990.
19. Dr M. Epstein, consultant psychiatrist, told the Tribunal in a report dated 17 March 2006 (Exhibit A14) that Mr Carroll appeared to have been alcohol dependent for many years. Dr Epstein said that effective treatment only occurred when Mr Carroll was seen by Professor Whiteford in 2001. He stated (at page 9):
…In 1993 there were a number of incidents which were known to the army and for which action was taken, nevertheless he does not appear to have had any effective treatment. In 1994 it was recommended that he have a detoxification program by an army psychologist but this was never arranged.
The evidence appears clear, therefore, that although his army service may not have caused or contributed to the development of his condition, nevertheless it does appear that he was unable to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
In oral evidence Dr Epstein stated that Mr Carroll’s cognitive impairment may have affected his ability to recall events accurately. He said that appropriate clinical management in 1994 would have included relevant testing and the development of a program to identify and treat the underlying cause of alcohol dependence.
20. Colonel N. Mitchell told the Tribunal in a statement dated 14 September 2006 (Exhibit R12) that he was the Commanding Officer of Mr Carroll’s unit in Albury/Wodonga from January 1994 to June 1995. He said that when he assumed command he was informed of behavioural problems and issues regarding Mr Carroll’s performance, and agreed at the time that attendance at AREP would not assist Mr Carroll. However he changed his mind after Mr Carroll received the ICO. Colonel Mitchell stated:
…
4.I recall that as a result of my letter to Wodonga Community Corrections Centre, administrative arrangements were made to allow the release of the Applicant for participation on an AREP (Alcohol Rehabilitation and Education Program) at the RAAF Hospital at Richmond.
5.My recollection is that soldiers panelled to attend AREP did so voluntarily and could not be compelled to attend.
Colonel Mitchell said that he regarded Mr Carroll’s failure to attend AREP as the last straw and issued a Notice to Show Cause why a recommendation should not be made that Mr Carroll be discharged from the Army. He noted that the outcome was that Mr Carroll was served with an Administrative Warning for Discharge.
21. In oral evidence Colonel Mitchell stated that he was advised by his staff that Mr Carroll had agreed to attend AREP but did not do so. Under cross-examination Colonel Mitchell agreed that he would have expected some reference in Mr Carroll’s service records to any referral to AREP, and that none exists. He said that he did not ask Mr Carroll whether he had attended AREP, and stated that the Medical Officer was responsible for making administrative arrangements for attending AREP. He conceded that there was a possibility that those responsible for AREP did not receive a referral for Mr Carroll. He also agreed that it was open to him to require Mr Carroll to attend alcohol counselling or other treatment.
22. Mr M. Carroll, Mr Carroll’s stepson, stated (Exhibit A1) that he had recollections of Mr Carroll’s violence towards Ms Carroll as a result of drinking to excess. He said that he remembers Ms Carroll going to work at the army base with black eyes and bruising to her face following assaults by Mr Carroll, and stated that in his view, personnel at the base would have known the circumstances.
23. Ms K. Carroll, Mr Carroll’s daughter, stated (Exhibit A2) that when she was in primary school Mr Carroll drank heavily and was abusive to Ms Carroll, causing Ms Carroll significant distress. She said that she recalls that at the age of 11 years she was told that Mr Carroll was to be referred for rehabilitation, but that, to the best of her recollection, he did not attend because he felt that he did not need rehabilitation as he had stopped drinking. Ms Carroll stated that in fact he continued to drink.
24. Mr A. Adamson, the Army Reserve Legal Officer assisting Mr Carroll, stated in a letter dated 28 June 1994 (Exhibit A9) to the Adjutant of Mr Carroll’s unit in Albury/Wodonga (in relation to the Show Cause notice):
Finally I wonder whether any inquiries have been made as to sending Sergeant Carroll to the drug and alcohol abuse course, which we understand is run in Richmond, New South Wales. From talking to the Department of Corrections, they would happily encourage such a course of action for Sergeant Carroll and given his history of both Military charges and the current civil charges, one would believe it is appropriate that he receive some form of assistance or referral to the course. I have spoken to him and he has indicated he is willing to attend. Would you kindly advise of any requirements for him to be placed on the course.
In reply the Army stated in a letter dated 4 July 1994:
…
3. Steps have been taken to arrange a[n] attendance at a drug and alcohol course for SGT Carroll.
25. In a written report dated 20 September 2000 (Exhibit R2) Ms N. Detering, psychologist, stated that Mr Carroll was referred to her to report on. She said that Mr Carroll was not receptive to any counselling at that time because he did not believe that talking about his alcohol problem would alleviate the dependence. She said that this was the reason given by him for his reluctance to attend further meetings of Alcoholics Anonymous. Ms Detering noted:
...Evidently SGT Carroll was to be ordered to attend AREP (following the incident [ce] of three DUIs), but alluded (sic) compulsory attendance.
In her written notes made during the consultation Ms Detering has recorded:
…talked about AREP. > nothing eventuated. } won’t do it
26. Dr N. Strauss, consultant & occupational psychiatrist, stated in a report dated 7 April 2006 (Exhibit R9) that people with good support systems and supportive employers are more likely to be successful when offered appropriate treatment because they often receive encouragement from those around them. He said:
I have no doubt that Mr Carroll's superiors and fellow workers were aware of his alcohol dependence because it affected his work capacity and effectiveness. It appears that some measures were put into place to try and assist him but these were quite inadequate in my opinion and there was never any significant follow-up. In other words this man was not provided with adequate treatment.
…
In this case there is no doubt that treatment services could have been provided adequately by the Army but were never put in place and Mr Carroll's situation was never forced by his employers which in my opinion was inappropriate. Mrs Carroll also stated that on one occasion she took out a domestic violence order against her husband and the Army Community Services knew about this and she had to go to court but she said she never received any adequate support from the Army and nothing was done by the Army to try and convince her husband that he should take measures to accept the treatment that might have been available to him.
With these thoughts in mind I believe that this man was never given an appropriate form of the clinical management which might have been available. This would have involved active assistance by his employers.
27. In a statement dated 11 October 2006 (Exhibit R10) Warrant Officer Class 1 T. Britton stated that he served with Mr Carroll from 1998 to 2002 as his immediate supervisor. He said that in 2000 Mr Carroll was counselled in relation to his drinking and conduct in a posting to Thailand. He stated:
I was present at this counselling session when Maj Bruno suggested that SGT Carroll go to the RAP to get some help with his drinking problem. SGT Carroll said that he had done that in the past and that it had not helped but would got (sic) back again to the RAP reference this problem.
On a number of occasions after this I tried to get Sgt Carroll to do a[n] AREP. He said he did not want to go because he did not want to be separated from his family. He said he had been to AREP previously and that it was a waist (sic) of time.
…
I knew that Sergeant Carroll continued to receive treatment for his alcohol problems up until his discharge from the Army but cannot comment on the treatment or the reason for his discharge.
28. In oral evidence WO1 Britton said that he had not taken any action after Mr Carroll expressed an unwillingness to attend AREP. He stated that attendance at AREP can only occur if requested by the individual concerned.
29. In a statement dated 12 September 2006 (Exhibit R13) Major N. Paine stated that in 1994 he was the Community Services Officer supporting defence personnel and their families in Albury/Wodonga. He said that he was unable to recollect any dealings with Mr Carroll in 1994 and has not been able to locate any relevant archived files. Major Paine stated:
…
4. Suffice to say, admission to AREP whilst strongly recommended by Command is voluntary. The applicant's attendance may have provided strong mitigation for him to be recommended for retention in the ADF, so it was in his interests to attend.
5. The procedure at the time in a case such as this would have been that arrangements would normally be made through the Latchford Barracks Medical Centre for referral to AREP at Richmond. The offer of support and/or counselling to SGT Carroll's family would have been advised to Sergeant Carroll. I am unable to confirm whether that support was utilised.
In oral evidence Major Paine said that a brochure AREP Courage to Change (R15) was widely distributed to hospitals and unit commands. The brochure emphasises that admission to the program occurs after discussion between the participant’s medical officer and an AREP counsellor. It notes that the courses are held throughout the year, and involve a three-day detoxification followed by a six-week rehabilitation phase, based on Alcoholics Anonymous philosophies. Major Paine agreed that he would expect any referral to AREP to be documented.
30. In a statement dated 15 December 2006 (Exhibit R16) Mr R. Blackley said that he was Mr Carroll's supervisor in 1994 as a Warrant Officer Caterer. He stated that he was aware of Mr Carroll's poor work performance and problems with alcohol. He recalled that a recommendation for Sgt Carroll to be discharged from the Army was overturned, and an administrative warning was issued. Mr Blackley stated that he was responsible for the close supervision of Mr Carroll in the workplace and said that Mr Carroll's performance improved markedly and was quite satisfactory by the time he was sent on the second posting to the Enoggera base in Brisbane.
31. In a statement dated 24 October 2006 (Exhibit A15) Mr A. Spiteri said that he served in the Army from 1990 to 2000 and was a Corporal Cook from about 1994 to 2000. He said that Mr Carroll was his immediate supervisor from 1995 to 2000. Mr Spiteri stated that he was aware that Mr Carroll drank alcohol to excess on a daily basis, and observed Mr Carroll drinking after working hours if a function was held in the mess, and in the kitchen daily after completing his duties. Mr Spiteri told the Tribunal that catering staff were often rewarded with alcohol after a successful function.
32. In oral evidence Mr Spiteri said that he reported Mr Carroll’s drinking and resultant behavioural difficulties to another sergeant, but did not confront Mr Carroll directly, as he was a subordinate to Mr Carroll.
33. In a Specialist referral and report dated 6 October 2000 (Exhibit R6 page 48) the referring officer noted that Mr Carroll had requested assistance regarding alcohol withdrawal, and stated:
He is not keen on AREP program at Richmond in NSW (RAAF). I have recommended a multidiscip[linary] approach but he is not overwhelmingly keen on organisations similar to AREP.
34. A Psychological referral record dated 4 March 1994 (Exhibit R3 pages 9-10) notes that Mr Carroll was referred for counselling following his conviction for alcohol-related offences. The writer stated:
[25 February 1994]…irrespective of whether Sgt Carroll is eventually retained or discharged from the service, the Army has a clear duty of care obligation on both legal and ethical grounds to provide him with appropriate rehabilitative counselling. It is strongly recommended that he be referred to No. 3 RAAF Hospital (AREP) at RAAF Richmond for this. Sgt Carroll himself is willing to undergo such counselling, and OC LMC concurs with this recommendation.
28 Feb 94 - spoke with Dr Helen Parsons from AREP to clarify referral process. Referral must come from local MO & MO must complete AREP interview protocol beforehand.
- advised Maj Rudzki (OC LMC) of requirement for him to make recommendation & requested he speak to Dr Parsons @ AREP.
- advised A/OC BASC A/W (Maj Davey) of AREP requirements & own recommendations. She advised she will follow up as appropriate.
4 Mar 94 - spoke with Sgt Carroll to ascertain progress of case. Was unaware of what was going on & he had heard nothing more. Advised him of process of referral to AREP & that he should hear more soon.
- spoke with Maj Davey who informed me that CO BASC A//W and decided not to proceed with AREP counselling for Sgt Carroll. Maj Davey was surprised when informed that Sergeant Carroll was unaware of this.
35. A Defence Instruction Alcohol use and the management of alcohol misuse in the Army (the alcohol policy) issued by the Department of Defence (Army Office) on 18 July 1994 (Exhibit R18) describes Army policy on the consumption, sale and storage of alcohol in the Army; and the personnel management principles and procedures to be applied to members who regularly misuse alcohol. Paragraph 2 of the Introduction to the alcohol policy states:
It is Army policy to encourage members to maintain a responsible attitude to the consumption of alcohol. The Army will not retain members who repeatedly misuse alcohol, members who refuse treatment for alcohol misuse, or members who fail to complete an alcohol counselling or rehabilitation program when ordered.
Annex H to the alcohol policy RAAF alcohol and rehabilitation program describes AREP and specifies that the program encompasses total abstinence from alcohol consumption and compulsory attendance at Alcoholics Anonymous meetings. The procedures for admission include:
…
7. Initial telephone contact with the OIC AREP is to be made by the unit MO [medical officer] to describe the member’s history, current crises, drinking pattern, and to advise on his volunteer status.
36. Mr Carroll signed a Formal warning for alcohol misuse dated 1 August 2001 (Exhibit R1 page 287) as follows:
…
2. I acknowledge that I will be referred to a Medical Officer for assessment and that I will be required to undergo counselling or treatment at my COs discretion for alleged misuse of alcohol.
3. I acknowledge that Disciplinary or Administrative action will be taken against me if I:
a. refuse the counselling or treatment;
b. refuse to actively participate in, or complete the required counselling or treatment; or
c. relapse within 12 months of completing the counselling or treatment.
37.The test for inability to obtain appropriate clinical management was set out in Repatriation Commission v Wedekind [2000] FCA 649, in which Kenny J stated:
[12] In summary, before the AAT could be reasonably satisfied that Mr Wedekind's pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind's particular service.
38. In the Full Federal Court judgment Brew v Repatriation Commission [1999] FCA 1246 Merkel J (who was in the majority) referred to the beneficial nature of the legislation and stated that inability should be approached as a matter of practical reality rather than by a theoretical approach. He said that dictionary definitions of inability include objective barriers such as lack of power, capacity or means, or subjective barriers such as the condition of being unable, and that whether a or subjective barrier to obtaining treatment is made out in a particular case depends on the facts of that case. Merkel J stated at [30]:
In my view it would be erroneous to limit “inability” to “some overwhelming psychological or emotional incapacity”. If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a “condition of being unable” to obtain treatment.
39. Heerey J (in a minority judgment) gave a wider meaning to inability at [3]:
…
However “inability” can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force…Clearly the factor operating on the person’s choice would have to be a substantial one before it could be said there was “inability”. How substantial is a question of fact, and not capable of definition “a priori”.
40. In applying Mr Carroll’s circumstances to the test set out by Kenny J in Wedekind, the Tribunal accepts the evidence of Mr Carroll and Professor Whiteford that Mr Carroll’s alcohol dependence or abuse was contracted in the early 1990s during a posting at Albury/Wodonga.
41. In Repatriation Commission v Wellington (1999) 57 ALD 507 the Federal Court referred to the standard of clinical management prevailing at the relevant time rather than contemporary standards. On the available material, the appropriate form of clinical management of alcohol dependence or abuse was a multi-disciplinary approach such as assessment and detoxification followed by counselling, medication as required, and assistance by way of incentives to reduce alcohol intake. Attendance at AREP was an appropriate form of clinical management in 1994.
42. On the question of whether Mr Carroll was unable to obtain that form of clinical management, the Tribunal takes into account the practical reality as described by Merkel J in Brew. Mr Carroll gave evidence to the best of his ability and recollection, although his cognitive difficulties affected his ability to remember events as clearly as he might otherwise have been able to do. The Tribunal finds that he was stationed at a large Army establishment at the relevant time and had access to RAP and other medical personnel to whom he could turn for advice and referral. He was a senior non-commissioned officer with around 15 years’ service in the Army at the time, so was not prevented by age or inexperience from recognising his problems and seeking treatment (Re Croxford and Repatriation Commission [2003] AATA 393).
43. Attendance at AREP was voluntary. Courses were conducted continually throughout the year. Although Mr Carroll initially expressed a willingness to attend and had been nominated, the database record suggests that his name was removed from the list of attendees before the course started, either because of an administrative error or because he had informed RAP personnel that he no longer had an alcohol problem and did not need to attend. For whatever reason, he was aware that the administrative arrangements had not been made, and he did not take any follow-up action to ensure his participation, although he had the knowledge and ability to make the necessary inquiries. A simple telephone call to the RAP or to the course administration would probably have sufficed. The practical reality is that at the time there was no objective barrier to Mr Carroll’s ability to obtain appropriate clinical management.
44. Attendance at AREP had been urged by his wife and family, by superior officers in the Army and by the Office of Corrections when it varied the ICO to facilitate his participation. He was aware that non-participation might have led to a breach of the ICO and possible imprisonment, loss of his career and entitlement to an Army pension, and a deterioration of family relationships. There was no evidence of any psychological or emotional circumstance preventing attendance at AREP, or of apprehension of the likely consequences, including embarrassment at his condition and possible further disciplinary charges (Re Rawson and Repatriation Commission [2005] AATA 243). The practical reality is that at the time there was no subjective barrier to Mr Carroll’s ability to obtain appropriate clinical management.
45. In Re Owens and Repatriation Commission [2007] AATA 1169 the Tribunal concluded that to establish the requisite inability the person must feel unable to and/or be unable to seek appropriate clinical management. Although at various times Mr Carroll participated in counselling, he agreed in evidence that he wanted a quick fix solution (such as medication) to his alcohol problem, and that he did not find some aspects of counselling helpful (including attendance at Alcoholics Anonymous). The residential component of AREP consisted of a six-week rehabilitation phase which embraced the philosophies of Alcoholics Anonymous and included weekly reviews.
46. For these reasons the Tribunal finds that Mr Carroll did not feel unable to and/or be unable to seek appropriate clinical management, and in fact he chose not seek it, so he does not satisfy the test in Wedekind. Therefore there was not an inability to obtain the appropriate form of clinical management, and Mr Carroll does not satisfy a requirement of the SoP that provides the connection, on the balance of probabilities, with his eligible service. Accordingly there is no need to consider the question of material contribution or aggravation of alcohol dependence or alcohol abuse.
ARE THE OTHER MEDICAL CONDITIONS RELATED TO SERVICE?
47. Mr Carroll said that he suffered from alcohol dependence or alcohol abuse within the year before his depressive disorder and anxiety disorder became worse as a consequence of his service, and that his brain disorder was also caused by his alcohol dependence or alcohol abuse.
48. In view of the Tribunal’s findings that the condition of alcohol dependence or alcohol abuse was not service-caused, Mr Carroll cannot satisfy the relevant factors in the appropriate SoP for depressive disorder and anxiety disorder. This also prevents Mr Carroll from demonstrating a link between his service and alcohol dependence or abuse (in remission) and organic mental disorder.
DECISION
49. The Tribunal affirms the decision under review.
I certify that the forty-nine [49] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Lydia Zozula
Associate
Dates of hearing: 12 and 13 October 2006, 18 December 2006, 14 February 2007, 11 April 2007 and 15 June 2007
Date of decision: 10 July 2007
Counsel for the applicant: Ms J. Bornstein
Solicitor for the applicant: Williams Winter
Counsel for the respondent: Mr G. Purcell
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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