Colebatch and Military Rehabilitation and Compensation Commission (Compensation)
[2020] AATA 34
•16 January 2020
Colebatch and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 34 (16 January 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2017/0038
VETERANS' APPEALS DIVISION )
Re: Samuel Colebatch
Applicant
And: Military Rehabilitation and Compensation Commission
Respondent
DIRECTION
TRIBUNAL: Dr I Alexander, Senior Member
DATE OF CORRIGENDUM: 18 February 2020
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application such that:
1. the wording of the decision is changed to:
During Mr Colebatch’s defence service from 7 December 2012 to 5 March 2013 he suffered a mental health condition diagnosed as an Adjustment Disorder.
2. the wording in paragraph [223](i) of the reasons for decision is changed to:
During Mr Colebatch’s defence service from 7 December 2012 to 5 March 2013 he suffered a mental health condition diagnosed as an Adjustment Disorder.
.................... [sgd]......................
Dr I Alexander, Senior Member
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/0038
Re:Samuel Colebatch
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Dr I Alexander, Senior Member
Date:16 January 2020
Place:Sydney
The reviewable decision of 18 November 2016 should be set aside and, in substitution, the decision is as follows:
i) During Mr Colebatch’s defence service from 7 December 2012 to 3 March 2013 he suffered a mental health condition diagnosed as an Adjustment Disorder.
ii) The Adjustment Disorder was an injury that out arose out of his defence service, in respect of which the Respondent is liable to pay compensation pursuant to section 23(1) of the MRC Act.
iii) During Mr Colebatch’s defence service, he suffered a mental health condition that was diagnosed as schizophrenia.
iv) The schizophrenia was not contributed to, to a material degree, by Mr Colebatch’s defence service and, therefore, in respect of this condition, the Respondent is not liable to pay compensation pursuant to section 23(1) of the MRC Act.
v) The Respondent is to pay Mr Colebatch’s reasonable costs of these proceedings, as agreed or taxed, with a rider that such costs do not include the costs incurred by reason of the vacation of the hearing on 27 June 2019.
..........................[sgd]..........................................
Dr I Alexander, Senior Member
CATCHWORDS
COMPENSATION – Military rehabilitation and compensation – Liability for schizophrenia and adjustment disorder – whether conditions arose out of defence service – whether material contribution – consideration of Statements of Principles – decision set aside and substituted
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth) ss 5, 23, 27, 319, 323-324, 333, 335, 337, 339, 341
Veterans’ Entitlements Act 1986 (Cth)
SECONDARY MATERIALS
Statement of Principles concerning SCHIZOPHRENIA (Balance of Probabilities), No. 84 of 2016
Statement of Principles concerning anxiety disorder, No. 103 of 2014
REASONS FOR DECISION
Dr I Alexander, Senior Member
16 January 2020
INTRODUCTION
Mr Colebatch, who is now 37 years old, enlisted in the Australian Army on 23 August 2011 and was medically discharged on 7 September 2016.
Mr Colebatch presented with left knee pain in November 2011 and July/August 2013.
In April 2012 Mr Colebatch was referred for “psychological assessment of his suitability to continue with language training”. The assessor concluded that Mr Colebatch “was not suitable to continue language training at DFSL”.
In November 2012 an investigation confirmed that Mr Colebatch had been subjected to inappropriate behaviour and bullying.
In December 2012 Mr Colebatch was again referred for psychological assessment. The assessor noted that Mr Colebatch “obtained elevated symptom profiles on K10 (30) and PCL-C (36)” but stated that “these results were not consistent with the information proved today, nor his presentation”.
In January 2013 Mr Colebatch was again referred for psychological assessment. The assessor noted that a mental health screen “indicates low stress, low risk drinking. K10 score of 11 and PCLC-C of 20 characterised by anxiety associated to his recent removal from course and bullying experienced”. The assessor also stated that “there were no indications of any thought disturbance or psychopathology”.
On 11 August 2014 at 0800, Mr Colebatch again presented with left knee pain after doing battle PT and then playing AFL.
Also, on 11 August 2014, accompanied by the unit Padre, Mr Colebatch presented for triage to MMHPS-NT seeking assistance “in the context of recent course performance stressors”. Mental health screen scores were recorded as “K10 = severe PCL-C = 31 moderate risk”. The assessing psychologist referred Mr Colebatch to the Veteran and Veteran’s Families Counselling Service (VVCS) in Darwin.
An MRI of the left knee performed on 15 September 2014 revealed “mild chondromalacia patellae” and a “radial tear “of the lateral meniscus.
On 9 October 2014 Mr Colebatch was seen by a counsellor at the VVCS “to address performance anxiety which was affecting him during training and assessments as transport driver”.
On 10 October 2014 he underwent arthroscopy and lateral meniscectomy in Darwin Private Hospital. On the same day he was admitted to the JHU-NT in-patient facility for post-operative care. He was discharged on 17 October 2014 and placed on limited sedentary duties until 24 October 2014.
Mr Colebatch remained on restricted duties until 3 December 2014.
On 18 February 2015 Mr Colebatch presented with what was described as an “unusual presentation” where he reported “poor sleep since a ‘massive thunderstorm’ approximately 2/52 ago and now states he has ‘sensitive hearing’ and can hear people over the phone”.
On 23 February 2015 Mr Colebatch was admitted to a psychiatric inpatient ward as an involuntary patient with a diagnosis of “first episode psychosis”.
On 21 March 2015 Mr Colebatch was seen by Professor (Prof.) Arya, psychiatrist, and diagnosed as suffering from “schizophreniform disorder”.
On 6 August 2015 Mr Colebatch lodged a claim for compensation for “mental health” and “left knee injury”.
In a determination dated 10 December 2015 the MRCC accepted liability under section 23(1) of the Military Rehabilitation and Compensation Commission Act (Cth) (MRC Act) for “tear of the lateral meniscus of the left knee” and “chondromalacia patella of the left knee”. The claim for liability in respect of “schizophreniform disorder,” was rejected on the basis that the claim did not meet the requirements under section 333 pursuant to sections 23(1), (2) and (3) of the MRC Act.
In a letter dated 30 January 2016 Prof. Arya confirmed that Mr Colebatch’s appropriate diagnosis was now “schizophrenia”.
In a report, dated 3 November 2016, Associate Professor (A/Prof.) Nagel noted a DSM Axis 1 diagnosis of “Schizophrenia, multiple episodes, currently in partial remission”.
In a reviewable decision dated 18 November 2016 the Review Officer affirmed the original determination on the basis that Mr Colebatch did not meet any of the factors in the relevant Statement of Principles.
In these proceedings, Mr Colebatch seeks review of the decision dated 18 November 2016. He attended the hearing in person and was represented by Counsel.
Relevant provisions of the MRC Act
Section 5(a) defines injury as “any physical or mental injury (including the recurrence of a physical or mental injury), but does not include a disease or the aggravation of a physical or mental injury”.
Section 5(a) defines disease as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 23(1)(a) provides that the Commission must accept liability for an injury sustained, or a disease contracted, by a person if “the person’s injury or disease is a service injury or disease under section 27”.
Note 2 of section 23 states that:
The standard of proof mentioned in subsection 335(3) applies to the following:
(a) claims that the injury or disease is a service injury or disease that relates to peacetime service;
(b) all claims when determining whether a person sustained a particular injury or contracted a particular disease;
(c) all claims when determining whether the Commission is prevented from accepting liability for the injury or disease by Part 4.
Section 27 provides, inter alia, as follows:
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(d) the injury or disease:
(i) was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii) was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease; [emphasis added]
Note: This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
Section 319(1)(a) provides that a claim may be made under this section for “acceptance of liability by the Commission for a service injury sustained by a person or a service disease contracted by a person”.
Section 323 “regulates the lodgement of claims and other documents under this Act”.
Section 324 provides that if a claim is given to the Commission in accordance with section 323 “the Commission must investigate the matters to which the claim relates”.
Section 333 provides that:
After the Commission has investigated a claim under section 324, the Commission must:
(a) consider all matters that, in the Commission’s opinion, are relevant to the claim; and
(b) determine the claim in writing in accordance with this Act.
Section 335(3) provides that:
Except in making a determination to which subsection (1) applies, the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.
Section 337 provides as follows:
Nothing in section 335, or in any other provision of this Act, imposes on:
(a) a person claiming compensation or claiming for the acceptance of liability; or
(b) the Commission, the Commonwealth, the Department or any other person in relation to such a claim;
any onus of proving any matter that is, or might be, relevant to the determination of the claim.
Section 339 provides inter alia as follows:
(1) This section applies to a claim under section 319 for acceptance of liability under subsection 23(1) or 24(1) for an injury, disease or death that relates to peacetime service.
Note: Subsection 335(3) is relevant to these claims.
(2) If the Repatriation Medical Authority has given notice under section 196G of the Veterans’ Entitlements Act 1986 that it intends to carry out an investigation in respect of a particular kind of injury, disease or death:
(a) the Commission is not to determine a claim for acceptance of liability for a person’s injury, disease or death of that kind; and
(b) the Commission, the Board or the Tribunal is not to make a decision on the review of:
(i) a determination by the Commission on such a claim; or
(ii) such a determination as previously affirmed or varied; or
(iii) a decision made on a previous review in substitution for a determination referred to in subparagraph (i) or (ii);
unless or until the Authority:
(c) has determined a Statement of Principles under subsection 196B(3) of that Act in respect of that kind of injury, disease or death; or
(d) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans’ Entitlements Act 1986; or
(ii) a determination of the Commission under subsection 340(3) of this Act; and
(c) the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
Section 341 provides that:
(1) This section applies if:
(a) the Commission, the Board or the Tribunal is reconsidering or reviewing a determination in relation to a claim to which section 338 or 339 applies; and
(b) at the time of the making of the decision on the review, there is in force a Statement of Principles (the current Statement of Principles) determined under section 196B of the Veterans’ Entitlements Act 1986 in respect of:
(i) the kind of injury sustained by the person in respect of whom the claim is made; or
(ii) the kind of disease contracted by the person in respect of whom the claim is made; or
(iii) the kind of death suffered by the person in respect of whom the claim is made.
(2) Subject to section 340, the Commission, the Board or the Tribunal is to apply the current Statement of Principles when making its decision on the reconsideration or review.
(3) To avoid doubt, it is declared that no right, privilege, obligation or liability is acquired, accrued or incurred that would permit the Commission, the Board or the Tribunal, in making a decision on the reconsideration or review, to apply any Statement of Principles that is no longer in force.
A Statement of Principles is an instrument made under the Veterans’ Entitlements Act 1986 (Cth) (VEA). The Statement sets out all factors related to defence service that have been found to cause specific injuries, diseases and deaths.
The process for making Statements of Principles is found in Part XIA of the VEA. A person who is entitled to a benefit under this Act can apply under the VEA to the Repatriation Medical Authority (RMA) to investigate a particular injury, disease or death or review one of its previous decisions about a Statement of Principles.
ISSUES
The Respondent concedes and the Tribunal accepts that Mr Colebatch suffered an adjustment disorder, being a mental injury that arose out of his defence service, with a date of onset of 7 December 2012, and that this condition was a psychiatric injury within the meaning of the MRC Act.
The Respondent accepts that it is liable to pay compensation to Mr Colebatch pursuant to section 23(1) of the MRC Act for the mental injury in respect of the period 7 December 2012 to 5 March 2013.
It is agreed that Mr Colebatch suffers from schizophrenia and that it was diagnosed during his defence service.
Mr Colebatch contends that during his defence service, just before the onset of his schizophrenia, he also suffered a clinically significant disorder of mental health described as unspecified anxiety disorder.
The Respondent contends that Mr Colebatch did not suffer an unspecified anxiety disorder prior to the onset of the active phase of his schizophrenia and that his symptoms were in fact prodromal symptoms of schizophrenia.
There is no dispute that Mr Colebatch’s defence service was peacetime service and, therefore, the standard of proof, under section 335 of the MRC Act, the Tribunal must apply is “to its reasonable satisfaction”.
It is agreed that with respect to the accepted condition of schizophrenia the applicable Statement of Principles is SCHIZOPHRENIA (Balance of Probabilities) (No. 84 of 2016) [SOP Schizophrenia 2016], which commenced on 28 November 2016.
SOP Schizophrenia 2016 provides, inter alia, as follows:
At least one of the following factors must exist before it can be said that, on the balance of probabilities, schizophrenia or death from schizophrenia is connected with the circumstances of a person’s relevant service…
The factors set out in subsections 9(8) to 9(15) apply only to material contribution to, or aggravation of, schizophrenia where the person’s schizophrenia was suffered or contracted before or during (but did not arise out of) the person’s relevant service.
Schedule 1 – Dictionary of the SOP Schizophrenia 2016 provides as follows:
clinically significant disorder of mental health as specified means one of the following conditions, which is of sufficient severity to warrant ongoing management, which may involve regular visits (for example at least monthly) to a psychiatrist, counsellor or general practitioner.
Relevantly, included in the list of specified conditions is (d) anxiety disorder.
With respect to the claimed condition of unspecified anxiety disorder the applicable Statement of Principles is ANXIETY DISORDER No. 103 of 2014 [SOP Anxiety 2014].
Mr Colebatch contends that his schizophrenia is a service disease pursuant to section 27(d) on the basis that he suffered an unspecified anxiety disorder prior to the onset of the active phase of his condition.
Mr Colebatch relies on the factor set out in section 9(14) of the SOP Schizophrenia 2016, that is, “having a clinically significant disorder of mental health as specified at the time of the clinically worsening of schizophrenia”.
Alternatively, at the hearing counsel for Mr Colebatch also submitted that the factor set out in section 9(15) of the SOP Schizophrenia 2016, that is, “inability to obtain appropriate clinical management for schizophrenia” existed.
Therefore, the definitive issues in this matter are:
(i)What is the date of clinical onset of Mr Colebatch’s condition of schizophrenia?
(ii)Did Mr Colebatch suffer a significantly mental health disorder, that is, an unspecified anxiety disorder at the time of the clinical worsening of the schizophrenia? If so;
(iii)Was Mr Colebatch’s schizophrenia contributed to in a material degree by, or was aggravated by, any defence service rendered by him after he contracted the condition?
(iv)Was Mr Colebatch unable to obtain appropriate clinical management for his schizophrenia?
Mr Colebatch’s evidence
A significantly redacted version of Mr Colebatch written statement, dated 25 April 2017, was provided to the Tribunal at the hearing;
Relevant extracts from the document are as follows:
Over the first 6-7 months of my service during my training to be a SIG at Simpson Barracks in Victoria I became depressed and anxious as a result of distressing bullying and harassment which occurred. This occurred from 2011 to well into 2012 and into 2013… I became and was emotionally distressed at that time. My sleep and concentration was affected. I was edgy, anxious and unhappy.
I had a psych assessment which was the end for me in that course on Friday 27/04/2012… Following that assessment in April 2012 I believe it was determined that I was found not to be suitable to continue the language training…
I think I started the Information Systems Technician (Geek) course around July 2012. From around the middle of 2012 I underwent further training. I continued to have difficulty with the training as a result of how I had been and was being treated. In the second half of 2012 I was referred to an Education Officer to assist me and I advised them of the bullying and harassment… I don’t know what action was taken in relation to my complaint.
Around December 2012 I was referred for a psychiatric or psychological examination. I believe that this was a result of me failing parts of my assessments… I was feeling very stressed and anxious at this time… I was unable to sleep very well… I had some gastro around this time and I think this was caused by how I was feeling as a result of the bullying and harassment… during the assessment I mentioned the bullying and harassment… I do not know what action was taken… I believe that it was recommended that I should receive and would benefit from specialist assessment and advice in relation to my personal and professional issues. I do not recall that the specialist assessment or assistance was provided.
During that time as above both verbal and physical harassment, some of it was mental harassment just evil stares in class… I myself and others complained about the incidences to staff which then caused an investigation… around November 2012… I understand SIG Boag and Champion got a verbal / written heavy warning… I was, due to peer pressure, forced to sign an apology document with SIG B… It was false because soon after he started acting up again…
Around February 2013 I was removed from IET course and moved to DFSS Transport Yard… During this time, they could tell I enjoyed the work better, and put me on the next available RACT Driving Course… I enjoyed the Transport however I was angry and annoyed of my removal from the IET course.
When I first enlisted I was a bit out of my depth and wasn’t making the grades… I felt like I was being treated differently, not part of the team… I was treated differently, bullied and harassed… the more I was bullied and harassed the more it impacted on my ability to pass the courses. As a result of the bullying I felt pretty angry and depressed.
Around March 2013 I was referred for another psychological assessment… In Transport I seemed to fit and it felt alright… Around August 2013 I suffered an injury to my left knee whilst on a field exercise… my knee injury caused me stress as I could not participate in all activities to the best of my ability.
In November 2013 I moved to Darwin… I went on a couple of courses and started a driver’s course… I recall going on a G-Wagon course which I believe was in November 2013 for 4-6 weeks… I recall a field exercise in early 2014 for 1-2 weeks… I went on a Hallmark Trailer course. I believe that this was in November/December 2014 after the G-Wagon course. 2013 or 2014… In July 2014 I undertook a LR2 course. The LR course was with manual vehicles … during the LR2 course I felt all the past events catch up with me. I was having issues and became extremely anxious as I felt my performance was being scrutinised and even during testing… I felt extremely anxious in testing and training situations and would have flashbacks of how I had been treated in the past… I was irritable, sensitive and had difficulty sleeping and relaxing.
In August 2014 I was referred to a psychologist for assessment in relation to my stress and anxiety… I think I saw VVCS a few times for counselling however I did not receive much in the way of treatment [emphasis added] Around August 2014 I injured my left knee again whilst participating in battle PT and playing AFL[1]. I had an operation on my knee in October 2014… As a result of the knee injury in August 2014 I was unable to run, jump squat, press weights or do any fitness testing… The knee injury and the symptoms added to my stress, anxiety and depression.
In February 2015 I was referred for a psychological assessment. This was the first of many doctors’ appointments and hospitalisations due to Schizophrenia. Whilst seeing the doctors the bullying was still happening
I was discharged from Defence around August 2016.
[1] This was clearly a new acute injury as Mr Colebatch appeared to have been fit enough to attend battle PT and play AFL. This is not consistent with inferences below that he was suffering chronic left knee pain prior to August 2014.
In his evidence-in-chief, at the hearing, Mr Colebatch was asked by counsel to consider a VVCS report completed on 28 October 2014[2] and to explain his understanding of the phrase “gained increased self-awareness of his faulty thinking habits and how they impact on his communications with others”.
[2] See par 70 below.
Mr Colebatch stated as follows:
If anything, I would’ve said something similar to irrational thinking, which would recollect back to, “Why am I still thinking about this?”, “Why am I still getting stressed over it?”, “Why am I still reverting back to the bullying that happened at the school of signals?- Okay and when was that? - 2012 to 2013.
When asked to explain his understanding of the phrase “recognising unhelpful thinking patterns re; other behaviour” which was included in the recommendation of the same report Mr Colebatch stated as follows:
It’s pretty much the same as what I said before regarding the irrational thinking. It was basically, “Why am I still thinking this is happening when it’s not happening?” and “Why am I still getting stressed over the same situation that may or may not be happening?”, “Why am I still reverting back to what has happened in the past and why can’t I get over it?”.
The circumstances arose to me that made me believe it was happening when it might not have been and they were just being normal and polite, but I still might have taken it in the opposite direction, because of what happened in the past… Yes, that’s what I thought myself.
When asked how he would describe his relations with his fellow soldiers in Darwin in the year 2014 Mr Colebatch stated that “there was a lot of tension and a lot of conflict between me being able to and not being able to do certain tasks and courses” and that he had a lot of anxiety he couldn’t “do a lot of the tasks and was getting teased about it” and was “quite depressed at the time as well”.
In response to a question from the Tribunal Mr Colebatch explained that his “faulty thinking” started from about the middle of 2014 and stated that:
So, whether or not it was happening. I could’ve been misinterpreting how people were communicating to me, working with me, I could’ve been reverting back to the bullying and harassment that happened in the Sigs and thought the same thing was happening again, when it might not have been. It could’ve been my paranoia coming up, I’m not too sure. It was - a lot of it was thinking if stuff was happening when it might not have been.
Mr John Colebatch – Father
In a statement dated 18 December 2018 John Colebatch indicated that he flew to Darwin for the week beginning 19 October 2015 because of concerns about his son’s wellbeing.
The statement refers to issues about Mr Colebatch’s knee injuries and during October/ November 2015 and is of no assistance in respect of the specific issues before the Tribunal.
In a second witness statement dated 24 June 2019 John Colebatch stated inter alia as follows:
I did not ever see signs of paranoia or delusional thoughts in Sam prior to 2015… I spoke to Sam fairly regularly by phone when he was posted in Darwin in 2014… Sam told me he re-injured his knee in August 2014, and I gathered he was struggling to keep up with his workload and testing. Our conversations became shorter in late 2014, but he did not say anything unusual to me that I could describe as paranoid or delusional at any time in 2014.
John Colebatch stated that his son had attended family functions last weekend of October 2014, 8 December 2014 and Christmas 2014 and did not see any “signs of paranoia or delusional thoughts” in his interactions with his son on these occasions.
Apart from one of his brother’s sons who was diagnosed with Bipolar disorder, John Colebatch stated that was no other family history of mental health issues which he also confirmed in his oral evidence at the hearing.
Mrs Sally Colebatch – Mother
In a statement dated 30 April 2018 Mrs Colebatch stated, inter alia, as follows:
During Sam’s time at Kapooka we got regular letters, although short, from Sam describing his early times in training… These letters seemed pretty upbeat telling us about his training in firearms, PT exercises and field exercises. He did not comment on any bullying but I imagine this would be to protect me, so I wouldn’t worry.
His posting to Darwin was a happy time for Sam, new beginning starting out on his own. He purchased a 4WD… Our initial contacts with him were happy and exciting. Tim moved up to Darwin several months after Sam’s posting and they spent weekends together
I really don’t have the dates in mind but each time he came home for holidays he did seem more reserved and when we questioned clarity on ‘army life’ he would become quite agitated and dismissive
It was during his posting in Darwin that Sam started to become paranoid with people listening in on telephone calls and face-book so many times when we tried to call he wouldn’t answer and came back with the message that he would call later. The return calls didn’t happen very often and when he did they were quite short because he thought people were listening or tapping in, it was a little confusing for us.
In a second witness statement dated 24 June 2019 Mrs Colebatch stated
Sam was posted to Darwin in November 2013 and his brother Tim’s posting commenced January 2014. It was initially a happy time for Sam and he seemed totally fine to me in the first few months in Darwin.
I saw Sam in person at a family reunion in late October 2014 and this was when I first noticed he was becoming more reserved and agitated when questioned about his army life in Darwin. Sam was very disappointed with the results of his knee surgery in October 2014 and he said the knee pain was still great (‘very bad’)[3] Sam was also back home early December 2014 for my birthday and also during the Xmas break. Both times he seemed more reserved and easily agitated. What I saw at that time were signs of stress very similar to what I had seen in Sam before when he was being bullied at Simpson Barracks in Victoria… He seemed very anxious, but I did not see any signs of paranoia, abnormal thoughts or delusional behaviour at this time.
I had spoken to Sam regularly on the phone throughout 2014 and experienced nothing unusual in his behaviour other than that he was becoming less talkative and more reserved in late 2014.
MEDICAL EVIDENCE
[3] The operation was performed on 10 October 2014 and Mr Colebatch was discharged from hospital on 17 October 2014.
Psychology Assessments
Extracts from an assessment dated 27 April 2012:
SIG Colebatch was referred… for assessment if “any psychological concerns affecting his academic performance”… no evidence of formal thought disorder. Concrete thinking style… no evidence of perceptual disturbance… Depression/Anx: nil… Bullying/harassment: nil recent…
On the Mental Health Screen, the member obtained mildly elevated symptom profiles on the K10 (17)[4] and PCL-C (22)[5]… these results were consistent with the information provided today, his tested ability, and disappointment at being unable to meet the required standards at DFSL… The member is not suitable to continue language training.
[4] Applicants submissions page 2 : Kessler Psychological Distress Scale (K10) is a 10- item measure used in the ADF to assess psychological distress and to monitor depressive and anxiety symptomatology. Risk levels attributed as low (10-15), moderate (16-21), high (22-29), and very high (30-50)
[5] Ibid: Post-traumatic Stress Disorder Checklist (PCL) is used to assess self-reported post-traumatic stress disorder symptoms. The four risk levels are: low(17-29), moderate( 30-39), high(40-49) and very high (50-85)
Extracts from psychological report dated 18 December 2012:
Reason for referral – confirmation as to viability of continuing SIG Colebatch’s training given his early and frequent assessment failures… are there underlying factors affecting his performance
Review of the member’s Course reports – approached the course with an indifferent attitude and was slow to adapt to Army life… related poorly to his peers and instructors
Personnel File – recent discipline/integrity issues… statement to Military Police implicating two other course members in the damage to another’s vehicle… admitted that that statement was false
PM008 – failed multiple summative and formative assessments… possibility of anxiety as a possible concern… has shown difficulties in retaining information
The member obtained elevated symptom profiles on psychological tests[6] and claimed this was due to his experiences of bullying and harassment – however his presentation was not consistent with these elevated profiles. He amended his account to advise that the impact on his functioning was in the past; before noting the presence of recent minor incidents that DFSS staff have been fully apprised of.
[6] K10(30); PCL-C (36)
A psychological report dated 5 March 2013 stated, inter alia, as follows:
SIG Samuel Colebatch was referred for psychological assessment of factors affecting his suitability for retention in the ADF and capacity to undertake further initial employment training… He was previously referred for a psychological assessment due to multiple summative and formative assessment failures and no compassionate factors were identified as affecting his performance… he has been transferred to DFSS Transport Wing to increase his exposure to alternative trades within the ADF.
SIG Colebatch presented as a personable, polite and cooperative student, who appeared to have limited insight into his training difficulties. There were no indications of any thought disturbance or psychopathology… [emphasis added]
SIG Colebatch presents as a positive individual, who appears disappointed with his recent training performance… The member indicated that he struggled to meet the standards of IET training due to heightened symptoms of anxiety and concentration difficulties[7]. However, SIG Colebatch reported low levels of strain on the Mental Health Screen[8]and no domestic concerns…
SIG Colebatch is highly motivated to remain within the Army, and reported Transport and Clerical specialisations as preferred trades… There are no psychological issues identified to preclude SIG Colebatch for retention in the ADF and consideration for a trade transfer.
[7] Psychology Assessment Record 5 March 2013: “He attributes a heightened level of anxiety and concentration difficulties stemming from bullying and harassment received from his peers on course”.
[8] K10(11); PCL-C (20).
A request for VVCS dated 12 August 2014 stated, inter alia, as follows:
PTE Colebatch was accompanied by the unit Padre to MHPS-NT for triage yesterday Monday 11 August seeking assistance in the context of recent course performance stressors. He is a Driver Transport and reported that whilst completing a two-week driving course four weeks ago he experienced quite debilitating anxiety in regards to performance scrutiny and testing situations.
PTE Colebatch reported such anxiety has occurred in the past, with onset linked to his training experience whilst at School of Signals in 2011… He reported a subjective sense of anger, and high levels of physiological and cognitive anxiety when test situations trigger memories of those training experiences…
At triage presentation, PTE Colebatch presented in a relaxed manner and acknowledged that his anxiety occurs only in the performance testing/ context such that on a day-to-day basis he is relatively unperturbed by the challenges of every day work routines. He posted to Darwin in November 2013 and resides on Robertson Barracks… he is seeking to become involved in sport (squash) in the civilian setting, and to move off-Base into independent accommodation…
Objectively, his MHS scores[9] indicate mild to moderate symptom escalation relating to nervousness, recklessness, occasional low mood, worthlessness, and reexperiencing/triggering of past stressful experiences in School of Signals… He reported occasional intense irritability/anger in psychosocial contexts and noted an awareness that past martial arts and Military Self Defence training makes him a potentially dangerous adversary should he be provoked.
[9] K10 = 30 “severe” PCL-C – 31 “moderate risk”.
A VVCS report created on 9 October 2014 and modified on 28 October 2014 stated, inter alia, as follows:
Private Colebatch presented to address performance anxiety which was affecting him during training and assessments in his role as transport driver.
Private Colebatch reported he had experienced bullying by others in previous training which appeared to be re-triggering anxiety when in new training situations. He reported no previous history of anxiety or depression and stated the current anxiety was situation specific. Private Colebatch utilises the support of Padre… to manage his anxiety in addition to counselling support sought.
DASS[10]: Depression = 10/Mild depression; Anxiety = 4\Normal anxiety; Stress = 22\Moderate stress; PTSD = 31\Moderate to moderately high
Private Colebatch’s presentation at the first session was representative of his scores on the DASS and the PTSD. He reported moderate feelings of irritability, sensitivity and difficulty sleeping or relaxing. Private Colebatch presented as much calmer in subsequent sessions and self-reported experiencing less anxiety as he practiced being assertive with others and gained increased self-awareness of his faulty thinking habits and how they impact on his communications with others.
Private Colebatch engaged well in the counselling process providing reflective responses and putting into practice strategies discussed and practised in sessions.
Private Colebatch feels he has enough information at the present time to address incidents as they arise. He may require further support and skills training when different situations arise in the future.
Recommendation: case closure.
[10] DASS 42 was used.
A psychological assessment dated 18 February 2015 stated, inter alia, as follows:
Unusual presentation. Member reports poor sleep since a ‘massive thunderstorm’ approximately 2/52 ago and now states he has “sensitive hearing’ and can hear people over the phone. ? Delusional ideas of reference. Further reported an anxiety attack at that time. Also reports stress at work with a colleague who he believes is talking about his personal life to everyone. Member has since reported in the last week that ‘everything is back to normal now’. Member states he read on the internet that ‘sensitive hearing’ could be a symptom of anxiety and he wanted to confirm if that was the case.
MSE: Denies he is depressed. Reported panic attack on the night of the thunderstorm… denies any current anxiety… distorted though patterns…
Tests: K10 23 = medium level of psychological stress; PCL-C 58 = high risk; DASS 21[11] Dep 7, ANX 14, STR 15
Comments: DASS 21 scores indicate moderate to extremely severe levels of depression/anxiety and stress… Member took nearly an hour to fill out the above 10 minute mental health screen. The instructions had to be explained to him on a number of occasions by both the examiners and undersigned. Member states he has filled out the mental health screen as it was for him on the night of the thunderstorm approx. 2/52 ago. Stated that he fells ‘normal’ now.
Management plan: Discussed options with M.O Dr Money. Member does not warrant admission at this stage… support from Padre… refer to private psychologist or VVCS… review by M.O for referral to private psychiatrist.
[11] Section 37 Documents at 233: DASS Severity Ratings-The DASS 21 is a quantitative measure of distress along the 3 axes of depression, anxiety and stress. It is not a categorical measure of clinical diagnosis… for clinical purposes it can be helpful to have ‘labels’ to characterize degree of severity relative to the population.[emphasis added].
On 23 February 2015 Mr Colebatch was admitted to Cowdy Ward, Royal Darwin Hospital JHU-NT as an involuntary patient under section 39 of the Northern Territory of Australia – Mental Health and Related Services Act 1988.
The Inpatient Unit Discharge Summary stated, inter alia, as follows:
Samuel Colebatch is a 32 year old caucasian gentleman with no previous contact with mental health services. He works as a truck driver for the military. He was brought into ED on 23/2/15 as per recommendation of the medical team at Robertson Barracks and his supervisor (SGT Hayden Doubleday)
Sam met with SGT Doubleday on 23/2/15 and told him that he had a heart attack and felt that he required medical treatment. He also reported concerns that two of his work colleagues had tapped the phones at work and were telling people to do thing which would harm him… that a thunderstorm 3 weeks ago gave him a ‘sixth sense’ and that he has since had the power to hear what other people are saying. He reported that he could hear everyone whispering through wi-fi and mobile telephones.
Sam’s brother Tim reported that Sam’s behaviour has changed in the last few months. On the Sunday prior to admission, Sam phoned him on his mobile, but abruptly hung up and called him back on the landline because he believed people were tapping Tim’s mobile. He divulged his concerns to Tim and then hung up… [Tim] was unable to make further contact because Sam’s mobile was turned off.
One week into the psychiatric admission, Sam remained insightless regarding his current condition and believed his occupational problems were the result of workplace anxiety. He was taken to the mental health tribunal with a request for a further 3 weeks under section 123. His diagnosis at this time was: first episode psychosis.
Treatment course and progress: Sam was admitted to Cowdry Ward under s 39 on 23/2/15. He was commenced on regular Olanzapine (5mg mane,15 mg nocte)
Sam continued to express delusions… and remained insightless regarding his current psychosis. Sam believed he was admitted for management of his occupational anxiety, despite having been told otherwise. He frequently reported not having his medications (when in fact he has had them) and was not yet capable of demonstrating compliance with his antipsychotic medication…
Mr Colebatch was discharged on 10 March 2015 with a recommendation to continue his prescribed treatment of olanzapine 20mg and was referred to Prof. Arya, psychiatrist.
Professor (Prof.) Arya – treating psychiatrist
In a letter to Dr Money[12] dated 21 March 2015 Prof. Arya stated, inter alia, as follows:
Clinical presentation: According to Samuel everything was going well for him until late 2014. In the second half of 2014 he had gone to attend a Driving Course. At this course, Samuel had started feeling that there were other people who were ’mucking around and being clowns’. Samuel was concerned that they were interfering with other people’s learning. Samuel had started getting quite anxious and concerned about behaviour of these people. I understand he made his senior officers aware of his stress and anxiety at that time. He was seen by psychologist or a psychiatrist. I understand from Samuel that the suggestion then was that his stress and anxiety was related to work. Looking back, I suspect Samuel had started getting a bit unwell then. According to Samuel, after returning back from the Driving Course he was still somewhat anxious, however, over the Christmas holidays he spent some time with his family and friends and felt more relaxed.
On his return back from his holidays he was concerned that one particular person of higher than him [sic] came to his room and appeared to want some ‘personal information’ on him. Samuel was left with the impression that this person was trying to ‘set him up with a female at his place of work’ Samuel said that at that time he was not very sure whether this man was trying to be helpful or trying to get him into trouble. Over the next few weeks Samuel remained concerned that this man and another person were trying to get personal information on him. This was making him anxious and suspicious. …Samuel had also started getting concerned that these people were tapping his phone and listening to his conversations… In early February 2015, on his way back from the Shopping Centre, Samuel started filling up his diesel car with unleaded petrol… Over the next week or so it seems that Samuel’s mental state deteriorated and he started becoming more and more paranoid about intention of others… On 23rd of February 2015, Samuel told his Sergeant that he was having an anxiety attack. He must also have disclosed his concerns about other people …Samuel was admitted to the Mental Health Inpatient Unit… he was started on olanzapine 15 mg per day and he stayed in hospital until 10 March 2015. With treatment Samuel started feeling less anxious.
Samuel now feels that his heightened senses have returned back to normal. He can no longer hear people’s conversations across the wall or predict when lightning or thunder is going to occur… has also started feeling comfortable about the person from of higher rank who he previously thought was trying to fix him up with his female colleague… is now sleeping a lot better… in fact he said that he was getting a bit drowsy and tired during the day… [emphasis added]
Mental State examination: Samuel was cooperative and communicative… was relaxed during the interview… is no longer experiencing paranoid delusions or auditory hallucinations… there are some residual paranoid symptoms, however, intensity of such symptoms has markedly decreased… he has started gaining some insight into his symptoms… he said that he is still not sure whether these other people were trying to help him by fixing him with a female or were trying to cause trouble for him.
Diagnosis: Schizophreniform disorder
Management plan: Samuel is currently on olanzapine 20 mg per day. I have asked Samuel to decrease his dose of olanzapine to 5mg in the morning and 10mg at night.
[12] Army Medical Officer.
In a letter to Dr Money, dated 26 March 2015 Prof. Arya stated that following the decrease to Mr Colebatch in the dose of olanzapine to 15 mg, Mr Colebatch had “not noticed any particular change” and that “his sleep is still good and he is feeling comfortable in his work environment”.
In a letter to Dr Money dated 7 April 2015 Prof. Arya stated inter alia as follows:
According to Samuel, he feels he is fast returning back to ‘his normal self’. He said that with reduction in dose of his prescribed medication he was not feeling drowsy any more. Currently, Samuel is working half days. He said that he was feeling bored and was keen to return to work full time. He said that he was no longer feeling suspicious, frightened or experiencing any unusual thoughts.
In a letter to Dr Money dated 23 April 2015 Prof. Arya stated that currently Mr Colebatch seems to be making good progress on “olanzapine 5 mg twice a day” and is “no longer experiencing any abnormalities of thought and/or perception”.
In a letter to Dr Money dated 23 May 2015 Prof. Arya stated inter alia as follows:
Samuel is not experiencing any side-effects. He said that he is sleeping well, has a good appetite and is back at work. He is now felling very comfortable… Samuel has now been relatively symptom free for almost 6 weeks. His current dose of olanzapine is 5mg twice a day. I have now asked Samuel to decrease his dose of olanzapine to 5 mg at night.
In a letter to Dr Money dated 4 July 2015 Prof. Arya stated inter alia as follows:
Samuel told me that over the last 6 weeks, he has remained very well. At the Headquarters where he is doing administration jobs he was feeling bored, but not… Samuel went to his old job in Transport yesterday where he worked alongside other people and felt both comfortable and happy… he now feels he is ready to return to work full-time… he is playing baseball twice a week… is also studying for Certificate IV in Business… has made some friends through baseball and now has more friends outside Defence than inside, which he is quite pleased about.
Considering that Samuel has made good improvement and is now keen to complete his fitness and weapons testing to be able to return back to his normal job, I think it will be appropriate that we stopped his medication altogether.
In a letter to Dr Money dated 15 August 2015 Prof. Arya stated inter alia, as follows:
Samuel told me that he was feeling quite good. He is busy at work… his unit is going outfield and he and his colleagues are busy preparing for this trip… he is handling stress relatively well… he is playing baseball [o]n a regular basis… he also attends boxing sessions… is feeling that he is back to his normal self. [emphasis added]
I took the opportunity to once again discuss with Samuel his early warning signs of relapse… Samuel is sleeping reasonably well. He did not report any disturbance in his biological functions… his interaction with other people has been quite relaxed and comfortable… he denied experiencing any symptoms of anxiety or depression. [emphasis added]
In a letter to Dr Money, dated 3 September 2015, Prof. Arya noted that Mr Colebatch had suffered a relapse and had admitted himself to the Robertson Barracks Medical Centre inpatient ward. He was not sleeping very well and started experiencing “very similar persecutory delusions as before”. Treatment with olanzapine 10 mg twice a day was restarted.
In a letter to Dr Money, dated 5 September 2015, Prof. Arya noted that Mr Colebatch “appeared more relaxed”, had slept well over the previous two nights and that “his anxiety was also much less than before”. Mr Colebatch also reported that he “was no longer hearing whispering through the intercom” but still believed that a “person who impersonates him” was ringing the Medical Centre posing as him.
In a letter to Dr Money, dated 17 October 2015, Prof. Arya noted that Mr Colebatch was making good progress and was no longer “feeling concerned or threatened about what other people may be saying about him” and also “not preoccupied about other people impersonating him”, Mr Colebatch also denied experiencing “any imaginary voices or other hallucinations”. Prof. Arya recommended a reduction of the dose of olanzapine to 10 mg at night.
In a report dated 26 October to the DVA Claims Assessor, Prof. Arya summarised all his previous correspondence and confirmed the diagnosis of Schizophreniform Disorder. He noted the relevant diagnostic criteria as:
Was psychotic for at least 1 month when not manic or severely depressed.
Was significantly impaired and continuously ill for less than 6 months with
1.A least 1 month of psychotic symptoms
2.Less than 6 months of continuous psychotic symptoms.
Prof. Arya noted that Mr Colebatch has responded well to treatment and achieved almost complete remission of his symptoms.
In response to a question with respect to any relationship between Mr Colebatch’s diagnosed condition and his defence service, Prof. Arya stated “nil significant”.
In a letter to Dr Money, dated 14 November 2015, Prof. Arya noted that Mr Colebatch “is keeping well” and is no longer “feeling concerned about being stalked, or other people impersonating him”. He added that Mr Colebatch is taking his medication regularly[13], denies experiencing any side effects and is “not experiencing any imaginary voices or other hallucinations”.
[13] Olanzapine 10 mg at night.
In a letter to Dr Money, dated 30 January 2016, Prof. Arya stated, inter alia, the following:
Samuel told me that he had maintained his improvement over the last few months. He said that he is no longer concerned or anxious about being stalked, impersonated or watched…
Samuel said that he was quite comfortable at work. He was sleeping well and did not have any particular concerns in relation to his situation or situations in relation to other people…
[Although] Samuel is feeling well and all his symptoms are under control, I have emphasised to Samuel that it will be important for him to stay on his prescribed medication as stopping medication prematurely can precipitate a further relapse… I have suggested to Samuel that considering that he experienced a relapse after stopping olanzapine last time, it would be appropriate for this medication to be continued for about two years…
In addition to Samuel’s diagnosis, considering the fact that he has experience[d] both a disorder of thought as well as perception and the duration of his illness has been several months, it would be appropriate for diagnosis of schizophrenia to be an appropriate diagnosis for him. [emphasis added]
In a letter to Dr Money, dated 12 March 2016, Prof. Arya stated inter alia, as follows:
Today, Samuel wanted to talk about olanzapine. He said that it is very likely that [he] will be discharged from the Defence Force sometime this year… Samuel told me that he did not think he needed to be on olanzapine as he is completely well. He wanted his medication to be stopped. Samuel is of the view that in September 2015, he did not get unwell and medication was started unnecessarily. I have explained to Samuel that it is important for him to be patient.
I have proposed to Samuel that in another three months we should consider decreasing his dose of olanzapine to 5 mg per day. If things continue to go well for him, we can do a further reduction to 2.5 mg per day. Samuel said that he will follow instructions, however, remained unconvinced that he needed to be re-started on olanzapine. He said that he is planning to get a second opinion.
As compared to previous appointments when Samuel has been very cordial, pleasant and cooperative, for some reason today Samuel appeared to be quite agitated. He didn’t seem very happy.
In a letter to Dr Money, dated 2 April 2016, Prof. Arya noted that Mr Colebatch was “feeling calm and comfortable” and that since his dose of olanzapine was decreased to 5mg per day a week ago, he “is keeping well and denied any concerns”.
Dr Berman – psychiatrist
In a letter to Mr Colebatch’s then GP Dr Berman stated, inter alia, as follows:
Sam clearly has schizophrenia. It most likely came on while in the Army in the NT. The GP[14] assured me that the various allegations of ‘bullying’ were fully investigated and not found to have merit. Having said that, he still could have suffered some bullying or some unpleasant interactions with folks up there and that could have brought on psychosis. However, the chronicity of the symptoms seems to indicate that he had a predisposition to psychosis that was then brought on by stressors in the military.
The psychotic symptoms have all been of a particular theme, persecutory delusions… the talk about ‘phone lines’ and ‘internet wires’ makes me think he gets information via auditory hallucinations.
A positive, but ultimately difficult observation, is that his illness is NOT treatment resistant. He clearly had a positive effect from being put on olanzapine… However, one can see a pattern even repeating itself now, where he took less and less medication and eventually stopped it. He’d get a few months, then be psychotic once again.
We spoke briefly about his distaste for the word ‘schizophrenia’. He said it is the wrong diagnosis, and that his problem is ‘depression’ and ‘anger management’. I don’t think he has glaring depression, in that his mood is not pervasively low, he can sleep, he has energy in the day, he eats etc… In summary I think Sam has (now) Chronic Schizophrenia. It is responsive to anti-psychotics. He has minimal insight, rejecting the diagnosis, but conceding some emotional problems.
[14] Dr Money - the Army Medical Officer.
Hornsby Hospital Discharge Summary
Admission 23 August 2016 - Discharged 24 November 2016 stated inter alia as follows:
Samuel Colebatch was brought in by [his] father to Hornsby Emergency department due to concerns of deterioration in Mental Health. On assessment he was found to have a relapse of psychosis with persecutory delusions. He believed that Telstra lines were tampered with and that he had an appointment with President Obama the next day. He also had sent aggressive text messages to Brother’s girlfriend and was guarded and suspicious about his mother. He had also purchased a baseball bat to protect himself.
Since his discharge from the Army he saw Dr Robert Berman and was still non compliant with his medication.
He remained dishevelled and unkempt, paranoid and suspicious as well as isolative during the initial part of the admission… He remained guarded and paranoid and with time and optimisation of meds he began to show significant improvement. Whilst he was on a combination of Olanzapine and Amisulpride[15]he reported that the ‘medication is working”. He however did not develop insight into his Psychosis and put it down to ‘Anger and depression’. Nevertheless, he agreed to be compliant with medication and see his case manager in [the] community
Medication on discharge: olanzapine 20 mg at night; amisulpride 400mg twice daily.
[15] Amisulpride (Solian) - antipsychotic medication.
Associate Professor (A/Prof.) Nagel – Consultant Psychiatrist
In a letter dated 8 March[16] Mr A Downs, solicitor, wrote to A/Prof. Nagel, in which he stated that he was acting for Mr Colebatch, in relation to a worker’s compensation claim and that he was in possession of a volume of documents which suggest “that there has been a misdiagnosis. He stated that Mr Colebatch had been diagnosed with a “psychotic condition” and that the “history does not, on my reading, support such a finding”.
[16] Provided to AAT by A/Prof. Nagel on 4 May 2017.
In a letter, dated 29 July 2016, A/Prof. Nagel stated inter alia the following:
I conducted a one hour thirty minute interview with Sam on the 19th April 2016 for the purposes of assessment following a request from his lawyer. This took place in the context of the onset of depressive and psychotic symptoms which were linked with experiences of abuse during his army service.
Sam is recovering from an episode of low mood which developed in late 2015 [sic]. After several months he developed psychotic symptoms which worsened eventually resulting in hospitalization and treatment.
In 2014 he came to believe that one of the senior officers was specifically him for harassment… In addition Sam became ‘hypersensitive’ at this time and could tell “when people were going to get phone calls”… He eventually sought help because he feared he was having a heart attack. He was taken by ambulance to Royal Darwin Hospital and admitted to the psychiatric ward.
A/Prof. Nagel did not make a specific diagnosis but implied that Mr Colebatch suffered from depression and anxiety.
In a documented summary of phone call discussion with Mr A. Downs[17] it is stated inter alia as follows:
[17] Exhibit R4 provided to the Tribunal by A/Prof. Nagel on 4 May 2017.
Summary of discussion with Anthony D – 1.35 - 2.35[18]
[18] Undated.
1.the adjustment disorder with depressed and anxious mood resolved in/before early 2014
2.evidence from Sams history to me, from the VVCS report where he mentioned only situation specific anxiety linked with reminders of previous bullying, from Dr Arya’s report where he mentioned that the first half of 2014 things were going well
3.the most likely sequence of events is
a.background anxiety
b.bullying as signal man student in 2012/13
c.adjustment disorder with depressed and anxious mood
d.period of recovery and wellness
e.onset of psychotic illness in late 2014 starting with anxiety and depression and leading into persecutory ideation and focus on Lance Corporal [emphasis added]
4.now he has some mild depressive and anxiety symptoms but the primary diagnosis is schizophrenia without insight [emphasis added]
5.the bullying did not cause the sz, the adjustment disorder did not cause or increase vulnerability to sz because by definition it had resolved and he had returned to good level of functioning.
Summary of discussion 24/6/16 9.30 – 10.30am
·There is now evidence that he was bullied in 2014
·The psychosis began late 2014 (prodrome at least)
·The bullying may even have been from corporal…
·Either way he was locked in a cage
·One could argue that it was highly likely that these experiences would have made him unwell eg with an adjustment disorder with depressed mood.
In a Report dated 3 November 2016, almost seven months after she had interviewed Mr Colebatch, A/Prof. Nagel stated, inter alia, as follows:
Mr Colebatch has experienced low mood and anxiety since enlisting in the Army. In late 2014 during an episode of depression and anxiety, he developed psychotic symptoms and was subsequently hospitalised 23/2/15-10/3/15 and treated for a psychotic illness characteristic of schizophreniform disorder. [emphasis added]
Mr Colebatch described the initial episode of depression and anxiety occurring in response to distressing events (bullying and harassment) which occurred over the first 6-7 months of his armed service during his training… additional episodes of bullying occurred at different times up until late 2014…
Review of the documentation… reveals that these symptoms of depression and anxiety are likely to have recurred in late 2012 and August 2014
In late 2014/early 2015 Mr Colebatch stated at assessment that he came to believe that one of the senior officers was specifically targeting him for harassment. The harassment took the form of the officer mimicking him on the phone and impersonating him in different situations… Mr Colebatch also became ‘hypersensitive’ at this time and could tell ‘when people were going to get phone calls’. He could hear conversations when could not see the people talking. These conversations were mostly about him but also about other topics.
Mr Colebatch has background factors contributing to vulnerability to this mental illness which include family history - a cousin has depressive illness… Another factor of relevance is that he did not seek help for his psychotic symptoms for many months. [emphasis added]
DSM Formulation: Axis I - Schizophrenia, multiple episodes, currently in partial remission.
A/Prof. Nagel answered a schedule of questions as follows:
1.…It is likely that the knee injury was a stressor which contributed to emotional distress
2.…the mental health scores in late 2014 indicate a high level of anxiety in contrast to the scores of March 2013… such psychological measures are not usually used alone to determine distress or to diagnose psychiatric conditions but are taken into account along with the detail of the history as told by the person and the presentation as assessed by the clinician… the final recommendation was to refer him for further counselling. [emphasis added]
3....It is likely that Mr Colebatch did have a clinically significant condition in August 2014 resulting from a combination of the knee injury and the experience of bullying and harassment…The psychological symptoms described meet DSM V criteria for Adjustment Disorder with mixed anxiety and depressed mood. [emphasis added]
4.In my opinion Mr Colebatch meets the criteria in Factor 6 (o) as set out in the Statement of Principles[19]
· The illness of schizophrenia was contracted during his service
· The onset of the schizophrenia illness was between October 2014 and February 2015
· The onset of the schizophrenia illness followed the episode of emotional distress recorded in August to October 2014 which in October 2014 was not fully resolved as revealed by the mental health scores of 9/10/14.
· The assessment of Dr Arya suggests that the onset of Schizophrenia may have been as early as October
· Mr Colebatch had symptoms consistent with the psychological condition of adjustment disorder [emphasis added]
· This clinically significant psychiatric condition was present at the time of the clinical worsening of Schizophrenia
[19] Statement of Principles concerning SCHIZOPHRENIA, No. 16 of 2009 was in force at that time.
In a report, dated 24 April 2018, A/Prof. Nagel addressed the opinions expressed in a report that had been provided by another psychiatrist, Dr Parmegiani, who had examined Mr Colebatch on behalf of the Respondent.
A/Prof. Nagel stated, inter alia, as follows:
I note there is agreement that the later illness is schizophrenia and that the onset of this illness was in late 2014. Evidence for the date of onset of schizophrenia being between October and December of 2014 is as follows:
·The assessment of Dr Arya suggests that the onset of Schizophrenia may have been at the time of treatment with VVCS (August to October 2014);
·The report of Dr Parmegiani: ‘…it is likely that Mr Colebatch’s symptoms began in 2014. Prodromal symptoms might have started earlier
·My assessment of Mr Colebatch as detailed in my report dated 3/11/16, ‘in late 2014/early 2015 Mr Colebatch stated at assessment that he came to believe that one of the senior officers was specifically targeting him for harassment’. This harassment represents one of the key delusional symptoms of the illness of schizophrenia Mr Colebatch has developed. [emphasis added]
·No psychotic symptoms (characteristic of schizophrenia) were noted by the practitioners (triage psychologist and VVCS psychologist) who assessed and treated Mr Colebatch between August and October 2014 but rather they noted depression and anxiety and stress. It is likely that the illness of schizophrenia had not become evident at that time.
A/Prof. Nagel expressed an opinion that between August and October 2014 Mr Colebatch suffered a recurrence of his “initial illness”, Adjustment Disorder with depressed and anxious mood, and was not suffering from schizophrenia at that time. In explaining her opinion, A/Prof. Nagel relies largely on the documents provided by the triage psychologist in August 2014 and the VVCS counsellor in October 2014 and states that the “psychological symptoms described meet the DSM V criteria for Adjustment Disorder with mixed anxiety and depressed mood”.
In response to a question, whether review of the SOP Schizophrenia 2016, had changed her views, A/Prof. Nagel confirmed her opinion that Mr Colebatch “had symptoms consistent with the psychological condition of Adjustment Disorder with depressed and anxious mood” and stated that “this clinically significant psychiatric condition required counselling from VVCS between August and October 2014” and that “this condition was highly likely to be present at the time of the clinical worsening of Schizophrenia”
At this point A/Prof. Nagel clearly had not realised that there had been a significant change in the definition of “clinically significant disorder of mental health” in SOP Schizophrenia 2016.
In a report dated, 14 December 2018, A/Prof. Nagel confirmed her opinion that it is more likely than not that Mr Colebatch’s presentation in August 2014 “was consistent with that of an Adjustment Disorder”. She also stated that “I agree that the Adjustment Disorder of 2014 is likely to have resolved some time ago. It has unfortunately been replaced by an illness with greater severity and chronicity and overall impact on social and occupational functioning (that of schizophrenia)”. [emphasis added]
A/Prof. Nagel also confirmed her opinion that, it is not likely that Mr Colebatch’s presentation in August 2014 “was consistent with prodromal symptoms of schizophrenia”. She also stated that “there is evidence for an anxiety disorder (adjustment disorder) in August 2014 and the onset of prodromal symptoms in late January 2015”.
In explaining her opinion, A/Prof. Nagel refers to the VVCS report in October 2014 and the sequential DASS 21 scores on 11 August 2014[20], 9 October 2014[21] and 18 February 2015.
[20] There was no DASS 21 score recorded on 11 August 2014.
[21] This was in fact a DASS 42 score.
In June 2019 A/Prof. Nagel was provided with additional documents and asked to review her prior stated opinion with respect to Adjustment disorder with mixed anxiety and depressed mood. The documents included new written statements by Mr Colebatch and his parents dated 24 June 2019 and the 2016 Statement of Principles for Schizophrenia (No.84 of 2016) which was now in force. In the letter of instruction, A/Prof. Nagel was informed that the definition of “clinically significant disorder of mental health had changed”.
The relevant issue in the change of definition is that Adjustment Disorder is not included as one of the specified conditions.
In a report dated 26 June 2019, A/Prof. Nagel stated that “in light of the further statements I confirm my opinion that Samuel had a clinically significant disorder. As previously stated, the clinical presentation is consistent with Adjustment Disorder with mixed anxiety and depressed mood”.
In support of her opinion A/Prof. Nagel referred to:
·The presence of stressors in August 2014 as noted in the triage psychology report and the fact that in October 2010 Mr Colebatch had an arthroscopy.
·The assessment of and treatment by the VVCS between August and October 2014 and the fact that, although the case had been closed, Mr Colebatch was referred “for further medical practitioner review (Dr Filipcic)
·The presence of anxiety and depressive symptoms from October 2014 to December 2014 and “no symptoms or signs of schizophrenia” prior to 2015.
·Her opinion that Mr Colebatch’s symptoms were not consistent with prodromal symptoms schizophrenia – although prodromal symptoms include anxiety and depressive symptoms they also usually include perceptual, thought and behavioural abnormalities distinctly different to these symptoms – if present, the prodromal symptoms are likely to have been noted by the psychologists between August and October – such symptoms would be likely to worsen rather than improve – the statements of both parents indicate that these symptoms were not present in 2014 – although bullying became one of the delusions during Samuel’s psychotic illness it was distinctly different to bullying he described during assessment with the psychologists
·Statements of parents – Both parents described their son as being emotionally distressed in late 2014. Their observations related to phone calls and to his visits home in October and December 2014. They described him as ‘reserved, agitated, disappointed, having very bad knee pain, very anxious, struggling to keep up with his workload and testing, irritable’. These descriptive words relate to emotional and behavioural symptoms which support the view that Samuel was experiencing a condition… meeting the criteria for Adjustment Disorder with anxiety and depressed mood.
·The statements of Samuel, his brother and his parents all contain references to concerns about bullying around this time[22] and concerns about his work environment.
[22] At the time of the VVCS assessment.
In response to a question as to whether Mr Colebatch suffered a clinically significant disorder as included in the list of specified conditions in SOP Schizophrenia 2016, A/Prof. Nagel stated that the condition of Unspecified Anxiety Disorder “describes Samuel’s condition in 2014”.
In support of her opinion A/Prof. Nagel stated as follows:
This diagnosis is appropriate when, as in this case, there is a lack of information – this case has lack of information as it relies on the reports of others rather than first hand assessment – The lack of information is understandable as there was no specialist psychiatric assessment and diagnosis – Specialist assessment is more likely to gather information to confirm a specific diagnosis – Detail regarding emotional and behavioural symptoms contributing to sound diagnosis is thus limited – Although depressive symptoms are noted the anxiety symptoms are more prominent. [emphasis added]
A/Prof. Nagel concluded that “the clinically significant disorder diagnosed as Adjustment Disorder with mixed anxiety and depressed mood and meeting criteria for Unspecified Anxiety Disorder was a material contribution to the schizophrenia”.
Oral Evidence – attendance by telephone
Cross examination
A/Prof. Nagel agreed that Mr Colebatch’s initial Adjustment Disorder had resolved by 5 March 2013, when he was assessed as having no psychological issues identified to preclude his being retained in the ADF and considered for a trade transfer.
A/Prof. Nagel also agreed that, it was her view that, when Mr Colebatch presented with mental health issues on 11 August 2014, and was referred off to the VVCS for counselling, he was suffering from a recurrence of the Adjustment Disorder.
When asked by counsel why, over time, there was a change in her opinion, as to the date at which Mr Colebatch began to suffer from schizophrenia, she replied inter alia as follows:
I don’t recall a change in my opinion over when he suffered schizophrenia.
I think I was consistently saying late 2014. I did not ever say August 2014. So there was - the only shift I think was just in our understanding of the words really. It’s semantics. For me it has been unclear and we require a lot of information to decide really when is it schizophrenia and when is it pre-psychosis and I think it’s important for people to know that the pre-psychotic phase can last from weeks to years and the pre-psychotic phase doesn’t necessarily lead to schizophrenia. For me it is clear that he has schizophrenia, really clear in February 2015. Unless he has had a psychiatrist assess him before that - I’m not clear - but there’s no evidence that he had schizophrenia prior to that - really, the psychiatric (indistinct) or a week or two before that. What he may have had is pre-psychosis and I addressed that as well, happy to address it again but I’m saying this because one can have some flexibility - it depends whether one is actually talking about schizophrenia or pre-psychosis. [emphasis added]
A/Prof. Nagel agreed that the main area of disagreement, between herself and Dr Parmegiani, was in respect of the period from August 2014 to October 2014, where she was of the view that Mr Colebatch, in that period, was suffering from an Adjustment Disorder, and Dr Parmegiani thought it more likely that the symptoms he experienced during that period were symptoms of the prodromal phase of schizophrenia. A/Prof. Nagel stated that:
That’s right, our key difference is that he did not pay - he did not mention or identify the anxiety symptoms that had led to an episode of care with a psychologist assessed by two psychologists, treated and sent from that episode of care, improved - with writing saying it was improved. So that seems to be a distinction between us.
When asked about the DASS[23] score, used during the VVCS assessment, A/Prof. Nagel conceded that, in retrospect, she was uncertain which score had in fact been used, and did not know whether the score was applied at the beginning of the assessment on 9 August 2014 or sometime thereafter. She added that “I would rather focus on the words of the psychologist - The words of any clinician once they’re written I think are far more valuable than self-report scales. We don’t make diagnoses on one scale, we make them primarily on the face to face assessment which sadly is often missing in this case”.
[23] DASS 42 was used not DASS 21.
A/Prof. Nagel agreed that, when diagnosing psychiatric conditions, the mental health screening scores, K10, PLC-D and DASS 21, are not usually used alone.
A/Prof. Nagel agreed that schizophrenia is a disorder characterised by positive symptoms, which may include delusions and hallucinations, and negative symptoms which might include “apathy, withdrawal, paucity of thought, restriction of affect, disorganised thoughts and actions and also cognitive impairment”.
A/Prof. Nagel stated that “you can’t predict the onset of symptoms” and that some people may have one psychotic episode and never have another. She added that:
Some people have one episode of a - one pre-psychotic episode and never have schizophrenia. Some people have a schizophreniform disorder which is close to schizophrenia and never have another episode.
A /Prof. Nagel agreed that the onset of frank psychotic or positive symptoms is preceded by a variable period of mood changes, perceptual and cognitive changes and social decline that can last from weeks to years and expressed her opinion that anxiety and depression disorders can be “a component of pre-psychosis”.
A/Prof. Nagel stated that schizophrenia is a “retrospective diagnosis” and agreed that non-specific psychiatric symptoms, including depression and anxiety, can occur throughout all phases of schizophrenic illness including the “pre-psychosis” period. However, she expressed her opinion that “anxiety” can be a “separate disorder” during all phases of the illness and requires treatment.
When asked by counsel, whether she maintained her opinion that the symptoms Mr Colebatch “experienced in the period July to October of 2014 up to January or February of 2015” were indicative of a reoccurrence of Adjustment Disorder rather than prodromal symptoms of schizophrenia”, A/Prof. Nagel said: Well as I said it’s indicative of an anxiety disorder, anxiety symptoms. Adjustment disorder I use most commonly and yes, that’s what I’m suggesting.
A/Prof. Nagel agreed that she made the diagnosis of an Adjustment Disorder on the basis of the criteria in the DSM, and that it was the diagnosis that she had made, in each of the initial three reports, that she had prepared for the purposes of these proceedings.
A/Prof. Nagel agreed that, in her report of 26 June 2019, she had maintained the diagnosis of an Adjustment Disorder whilst also introducing a further diagnosis of an Unspecified Anxiety Disorder.
A/Prof. Nagel also agreed that, the criteria for a diagnosis of an Adjustment Disorder is that the condition does not meet the criteria of another mental disorder. When questioned about this, she responded as follows:
That’s right but as a clinician - and this is what you’re going to ask me - as a clinician, an unspecified category of which there are many in DMS V are very rarely used but you use them if you’re not sure where you’re going basically. Where there’s a very light sketch. You haven’t got enough information to pin down where you’re going and as a clinician, the one I use regularly is an adjustment disorder or major depression. Depression and anxiety are the most common illnesses that we see. So when I saw unspecified anxiety disorder, I had not used that diagnosis before and when I looked at it I realised that of course in this situation where we have not the full amount of information, that applied as well as the adjustment disorder.
A/Prof. Nagel conceded that, when preparing her report of 24 April 2014, and asked to review SOP Schizophrenia 2016, she did not realise that the definition of a clinically significant disorder of mental health, as specified in that statement of principles, did not include an Adjustment Disorder. She said that “It wasn’t until my attention was drawn to the diagnosis of Unspecified Anxiety Disorder which I believed was appropriate for me to look very carefully at that”.
A/Prof. Nagel disagreed, with the suggestion by counsel, that she was “looking for a diagnosis” that would satisfy the requirements of SOP Schizophrenia 2016 in order to qualify Mr Colebatch for compensation. She said “I’m trying to do my job here as an expert witness. Trying to bring me opinions as a clinician and as a researcher to - for this particular situation”.
When asked, in applying the SOP Schizophrenia 2016, did she draw any distinction between the clinical onset of schizophrenia and clinical worsening of that condition, A/Prof. Nagel stated inter alia as follows:
Not a lot. I think in this case it’s really quite difficult to do that as we were talking about before when the actual onset of schizophrenia occurs in this case, you know, formally in terms of DSM V it’s not actually called schizophrenia for six months of all of the symptoms. So you have to have both positive symptoms which appeared in February so it’s not until six months later that he actually has the formal DSM V diagnosis of schizophrenia. Prior to that we’re waiting to see and in the interim the diagnosis is schizophreniform disorder. So clinical worsening of this is more likely (indistinct) clinical worsening of the symptoms that were then going to be expressed as schizophrenia.
Dr Parmegiani – Consultant psychiatrist
In a report dated 24 August 2017 Dr Parmegiani stated, inter alia, as follows:
Mr Colebatch was a poor historian and he could not provide a detailed history.
Summary and Opinion: Mr Samuel Colebatch is a 35 year old man who experienced his first episode of psychosis at age 32. He expressed paranoid delusions and he believed that he could pick up Wi-Fi and cell phone communications after a thunderstorm. He believed that a corporal impersonated him in order to ridicule him.
Mr Colebatch also reported being bullied and harassed shortly after he joined the ADF. He believed that the harassment undermined his academic performance, precluding a career as an information system technician. I cannot state with certainty whether Mr Colebatch was the victim of harassment, or whether he was in the prodromal stage of Schizophrenia. It is possible that he misinterpreted external clues as threats, and that he became increasingly anxious as a result of his beliefs.
Schedule of Questions:
·Did Mr Colebatch suffer from Adjustment Disorder? - This will depend on whether Mr Colebatch was bullied and harassed. If the AAT finds that Mr Colebatch was bullied and harassed, he would have most likely suffered an Adjustment Disorder with Anxious Mood. This is a self-limiting condition which resolves within six months after the stressor has been removed.
·Did Mr Colebatch suffer an Adjustment Disorder with mixed anxiety and depressed mood with onset in August 2014? - Mr Colebatch reported that he was bullied whilst in the Army. I note an entry in the outpatient clinical record dated 16 April 2013. The entry states, ‘Has been bullied and harassed by other trainees – interfered with his capacity to complete exams. Formal complaint lodged - outcome not yet known. The outcome of a formal investigation would clarify whether the bullying was real or imaginary. I cannot state with certainty that Mr Colebatch was bullied again after his transfer to Darwin. He was able to pass exams and become a specialist driver. His complaints about being bullied and harassed became increasingly bizarre, suggesting these were a symptom Schizophrenia, and not its cause.
·Did Mr Colebatch suffer a distinct and separate psychological condition in or around August 2014 or were his symptoms related to the onset of schizophrenia? - This is a difficult question… Mr Colebatch was transferred to Darwin in November 2013. He reported persistent harassment by others. His description of the harassment became increasingly based on paranoid delusions. It is unlikely that a superior was impersonating Mr Colebatch in order to ridicule him. It is also highly unlikely that Mr Colebatch had a capacity to hear Wi-Fi and cell phone signals. On balance this experience was a manifestation of Schizophrenia.
·If Mr Colebatch did suffer an Adjustment Disorder, what was the date of clinical onset? - Mr Colebatch’s Adjustment Disorder began in 2012 whilst he was studying to become an information system technician.
·Has there been any clinical worsening of the Adjustment Disorder? - Mr Colebatch’s Adjustment Disorder would have resolved in 2013. He however developed Schizophrenia, a more serious psychiatric condition that was not related to the Adjustment Disorder. He became psychotic, and lost contact with reality. He was admitted to a psychiatric hospital involuntarily, and he was administered antipsychotic medication. These symptoms overshadowed any anxiety that might have been part of a previous Adjustment Disorder.
·What was the date of clinical onset of the schizophrenia? – On balance, it is likely that Mr Colebatch’s symptoms began in 2014. Prodromal symptoms include misinterpreting other people’s actions as threats.
In October 2018 Dr Parmegiani was asked to provide a supplementary report in response to A/Prof. Nagel’s report of 24 April 2018 and Mr Colebatch’s statement of 25 April 2018.
In a report dated 18 October 2018 Dr Parmegiani stated, inter alia, as follows:
A/Prof Tricia Nagel argued that Mr Colebatch was suffering a recurrence of his Adjustment Disorder at the time he developed Schizophrenia in October 2014. A/Prof Nagel attributed this to Mr Colebatch’s performance anxiety, bullying and the stress of a recurrent knee injury
A/Prof Nagel added that the recurrence of the Adjustment Disorder did not fully resolve in October 2014. She noted that Mr Colebatch’s scores on the DASS… were consistent with mild depression, moderate stress and moderate to moderately high PTSD.
In summary, A/Prof Nagel believed that Mr Colebatch was suffering the relapse of an Adjustment Disorder with Mixed Anxiety and Depressed Mood when he developed Schizophrenia.
Mr Colebatch reported feeling anxious before October 2014. I cannot state without any degree of certainty whether his anxiety was attributable to the factors identified by A/Prof Nagel. It is possible that the anxiety observed in the prodromal stage of Schizophrenia affected Mr Colebatch’s thinking processes, and left him more apprehensive about his training and inability to fulfil his training needs.
On consideration of the VVCS notes Dr Parmegiani stated that “in essence, treatment focused on Mr Colebatch’s reaction to others, and unhelpful thinking patterns about other people’s behaviour. This was more consistent with the interpersonal difficulties that patients experience in the prodromal phases of Schizophrenia. Treatment did not focus on Mr Colebatch’s pain, or anxieties about not fulfilling his training requirements”.
In conclusion, Dr Parmegiani confirmed that in his opinion Mr Colebatch’s prior Adjustment Disorder had resolved and that he did not agree with A/Prof. Nagel’s opinion that Mr Colebatch “suffered an Adjustment Disorder in 2014, when he developed Schizophrenia”.
Oral evidence – attendance in person
Evidence-in-chief
Dr Parmegiani was asked to explain why, in August or thereabouts in 2014, it was that, ultimately, he formed the view that it was more likely that Mr Colebatch’s symptoms were related to the onset of his schizophrenia than due to a recurrence of an adjustment disorder. He answered as follows:
Well, first of all, it’s very common in the prodromal stages of schizophrenia for people to experience anxiety and depression. Secondly, one looks at the events that occurred, and there is a hindsight bias where you know that someone has later on developed schizophrenia, you look back and you have – you consider why they were being anxious, the reasons behind it and whether this was an early misinterpretation of external events or whether there were other events that were causing the person to feel anxious and upset. And it’s very difficult because we don’t live in a vacuum, things are always happening to us. I think in Mr Colebatch’s case there were some problems with his knee, he was having some pain, he was concerned about harassment, being harassed or harassment recurring under pressure because he had a bad experience back in 2012. So he could have had some anxiety during training and during his new position, or anxiety about not performing physically, or he could be in the prodromal stages of developing schizophrenia. It’s very difficult to know which way. Even if you’re there, even if you’re a psychiatrist assessing the person, they will tell you that they’re anxious and upset and they might identify the reasons, but then later on they get the illness and you think, “Well, is that a manifestation of the illness? Were they misinterpreting peoples’ intent and behaviours and statements from the perspective of someone who’s becoming increasingly paranoid?”
When asked by counsel, whether in his experience, prodromal symptoms necessarily include positive psychotic symptoms, Dr Parmegiani answered as follows:
No. Because by the time you have positive psychotic symptoms, then you’ve got a diagnosis of schizophrenia, by the time you got hallucinations and delusions. As I said, it can be indistinguishable from anxiety and depression in a person who doesn’t go on to develop schizophrenia, who may very well make a full recovery from that anxiety and depression. So it’s only with the benefit of hindsight, clinically, that you can say, “Oh, that’s what was happening.” That was the process. When someone, you know, was feeling anxious and couldn’t tell you why they were feeling depressed, they couldn’t tell you why, later on develops schizophrenia.
In response to a question from the Tribunal, with respect to A /Prof. Nagel’s evidence thatin August 2014, Mr Colebatch actually suffered a co-morbid diagnosable anxiety condition, Dr Parmegiani stated, inter alia, as follows:
Well, the temporal relationship between those symptoms and the development of schizophrenia would suggest there was an association. It’s not something that he’s had all along from his early 20s onwards, it just developed gradually and initially both he and Prof Nagel and many other people were thinking that it was due to external circumstances and therefore were able to explain why it was happening then and not five years earlier. With the benefit of hindsight, it was either due to those external stressors and therefore be an adjustment disorder or he was at the prodromal stage of schizophrenia. I think the diagnosis of unspecified anxiety disorder is one that you make when you don’t have any information and you’re waiting to do an assessment. And then you find a reason, it’s like a waste basket diagnosis – default diagnosis, until you get something that tells you what’s wrong with a person.
It’s the equivalent of a medical diagnosis of fever of unknown origin… or pain of unknown origin. You don’t know what it is and you give this diagnosis, “unknown origin” and then you find out what’s causing it. And the same here. I mean, psychiatry’s got some of these diagnoses which require further investigation and which are really symptoms that we don’t know the origin of, which then are labelled with something else that we know of.
When asked by counsel, whether the symptoms of the prodromal phase of schizophrenia are clear-cut and well-defined, Dr Parmegiani stated, inter alia, as follows:
No, and that’s why they confuse a lot of doctors… Firstly because you don’t diagnose schizophrenia, you don’t have enough to diagnose schizophrenia and then later on you wish you had because then you could have initiated a different treatment. But conversely, there has been a movement in that the prodromal treatment of schizophrenia, where – an Australian psychiatrist here, I think, has started treating a whole lot of teenagers who were showing some (indistinct) with anti-psychotic medication. And many of those didn’t go on to develop schizophrenia and so were possibly over-medicated with anti-psychotics for displaying what’s considered to be normal teenage behaviour. So it’s very difficult.
I think unless there are clear-cut symptoms of schizophrenia, even a psychiatrist wouldn’t, these days, make the diagnosis of prodromal schizophrenia and start prescribing anti-psychotic medication with all its potential side-effects on the basis of some anxiety or depression. Or even, you know, being a little bit sensitive interpersonally to other peoples’ comments and motives and say, “Well, you’re maybe just a sensitive person.” You wouldn’t treat it as schizophrenia.
When asked to consider, whether A/Prof. Nagel’s opinion that, the fact that Mr Colebatch’s condition was thought to have improved and he was discharged from treatment by the VVCS psychologist, tended against the symptoms having been prodromal because prodromal symptoms wouldn’t be expected to improve, but to worsen, was consistent with his own experience Dr Parmegiani stated as follows:
It’s not – yes, it’s not strictly correct because there is now growing literature on the psychological treatment of schizophrenia where you also help people in managing anxiety, managing the cognitive distortions that cause that anxiety. And that helps a little bit. And I would expect someone in a prodromal period of schizophrenia who experiences anxiety and depression, to respond to the standard treatment of those conditions. Meaning relaxation therapy, talk therapies and so on. But of course if the process continues it causes a much greater problem which cannot respond to psychological therapy then you really do need the medication.
In response to a question from the Tribunal with respect to the use of the various mental health screening tests, K10, PCL-C, DASS 42 and DASS 21, Dr Parmegiani stated as follows:
Well, those scales are fairly limited because a lot of them are based on what a person believes to be their symptoms and they feel upset. And, you know, one person might say, you know, “I’m 2 out of 10” and someone else might say, “I’m 5 out of 10.” They’re very subjective scores. But they’re indicative, generally, when someone is feeling anxious or depressed. They provide some, I guess, written confirmation of what they’re saying to the doctor, but I’m not sure they improve the diagnostic accuracy of a good interview. Because what they’re answering is what you could be asking them anyway… They’re very non-specific. Anxiety and depression are part of lots of psychiatric conditions.
Cross examination
Dr Parmegiani stated that his disagreement with A/Prof. Nagel is, whether in late 2014, Mr Colebatch “had an adjustment disorder caused by external circumstances or whether he was in the prodromal stages of schizophrenia” and added that “it’s very hard to tell”.
When asked by counsel, whether he had discounted “the notion any co‑morbidity, that is, that there could have been a disorder, as a matter of fact, in existence, for example, adjustment or anxiety disorder, at the same time as a pre-psychotic condition or a prodrome or even schizophrenia”, Dr Parmegiani stated that:
Well, unfortunately I’ve got the benefit of hindsight, knowing that he had later on developed schizophrenia. There is really no justification, given the temporal relationship, as to why he should be experiencing anxiety at this stage in life without some identifiable cause behind it.
Dr Parmegiani did agree, however, that that there could have been “co-morbidity” with an Adjustment Disorder, if there were significant relevant stressors but not an Anxiety Disorder “because that’s something that’s more of a life-long pattern”.
When asked about the DSM V diagnosis of Unspecified Anxiety Disorder, Dr Parmegiani stated as follows:
Look, at the time, if you didn’t know that he was going to have schizophrenia, you would say, “I don’t know what this is.” Later on, when the schizophrenia declared itself, you go, “Aha, it’s no longer unspecified. It’s actually prodromal schizophrenia.” So, you might not have had – if you assume that the stressors at the time were not sufficient to cause his anxiety, you would say “Yes, it’s an unspecified anxiety disorder because there’s really no tangible stress and he’s having all these symptoms, we don’t know why. But then a few months later you go, “Aha, I know why he was having those symptoms.”
Counsel asked Dr Parmegiani to assume, that by Christmas 2014, Mr Colebatch spent some time at home with the family and once again, “although they gave evidence that he was somewhat reserved and he was suffering some knee pain, he did never complain of any bullying or, once again, exhibit any signs of paranoia or delusions” and asked whether that then does “in any way lessen the likelihood that we’re talking about a form of schizophrenia in 2014 as opposed to some other diagnosis”, to which Dr Parmegiani said that “It’s entirely consistent with the prodromal stages of schizophrenia, which is – if anything, has been compared to what teenage boys go through where they are very reserved, they don’t talk, they don’t say anything and they grunt when asked questions. So people in the prodromal stages do become more withdrawn and they don’t communicate much.”
When asked to comment on the opinion of Dr Jayalath in 2017 that Mr Colebatch suffered “co-morbidity of anxiety and PTSD” Dr Parmegiani stated, inter alia, as follows:
Well, first of all, anxiety is a symptom of schizophrenia. Simply because of all the turmoil that people go through when they experience hallucinations, delusions, persecution, persecutory ideas. So that anxiety does not constitute a separate diagnosis. Secondly, Post Traumatic Stress Disorder is fairly easy to deal with because it requires a life‑threatening experience like someone’s trying to kill you or a sexual assault or something really terrible. You can’t make it on grounds of some relatively minor external stress.
I think he’s got it wrong because they’re not happening as separate things combined together, they’re actually symptoms of schizophrenia, the anxieties.
After a period of somewhat unproductive cross examination, the Tribunal asked Dr Parmegiani to express his opinion, as to the time of onset of Mr Colebatch’s schizophrenia. Dr Parmegiani stated that:
I think the prodromal symptoms began in 2014 and it manifested itself to a point where it could not be misunderstood as anything else but schizophrenia in February 2015… my understanding is that it’s a gradual process over time, generally months.
When asked by counsel to comment on A/Prof. Nagel’s opinion that, “with a DASS score for anxiety of 4 (normal), as recorded in the VVCS assessment in October 2014, it would be very unusual if Samuel was schizophrenic, to see such an improvement and, therefore, against a diagnosis of prodrome”, Dr Parmegiani stated:
No, I think the answer is actually in the following paragraph, where it says… ‘He gained increased self-awareness of his faulty thinking habits and how they impact on his communications with others.’
So, it was faulty thinking, which suggests that he was already not thinking clearly, as a part of the prodromal phase of schizophrenia. And because it wasn’t severe at that stage, it hadn’t been full-blown, he was able to reduce his anxiety by addressing the faulty thinking processes, which eventually became not-amenable to talking therapies.
When asked some questions about the reliability of K10 scores Dr Parmegiani said that “many psychiatrists don’t use those rating scales, because a clinical assessment tends to be more accurate.”
Dr Parmegiani was asked to consider the Mental Health Intake Assessment document, dated 11 August 2014, where it is recorded, by the Triage psychologist, that Mr Colebatch’s presenting problem was “high anxiety when on course/taking tests” with a K10 score of 30 (severe). Counsel indicated that A/Prof. Nagel “puts some significant stock in it, because it indicates a very high level of anxiety, without any indication from a psychologist of paranoia or delusions” and then asked Dr Parmegiani whether he accepted that this “evidence is far more consistent with a diagnosis of adjustment disorder or anxiety disorder, as at that date, than anything else”. Dr Parmegiani stated:
Look, taken at face value, yes. But I don’t know why he’s worrying more about these things. I think, on balance, you’re right. That’s how he is presenting on the day, and that is, he has been bullied before, his knee is painful and he is worrying about his course and he is feeling very stressed by it.
When asked to consider the information in the Triage psychologist’s referral letter, dated 12 August 2014, Dr Parmegiani conceded that if Mr Colebatch “hadn’t developed schizophrenia,” his presentation, at that time, was consistent with an Adjustment Disorder.
When asked to comment on Mr Colebatch’s apparent clinical improvement in October 2014, in the face of A/Prof. Nagel’s opinion that “if the symptoms that we just saw in those documents were due to prodrome, they would be expected to worsen until the onset of the illness of schizophrenia”, Dr Parmegiani stated as follows:
They could fluctuate. The general trend would be towards a worsening.
Look, without treatment, yes, generally. A slow, gradual deterioration. Left alone, things would have got gradually worse. But I think he got some psychological treatment, he felt a little bit better. And also, it depends on whether there are external stressors which make things worse. If there’s some removal from the stress, people’s symptoms improve – prodromal symptoms improve.
In response to a question form the Tribunal with respect to the apparent benefit Mr Colebatch had with counselling, Dr Parmegiani stated as follows:
I think it would help. It would help. At an early stage, it would help the distortion in thinking and the anxiety arising from that. However, the process increases over time, where psychological therapies and cognitive therapies don’t work anymore, because now the biochemical disturbance is so great, it really does require other treatment.
Dr Parmegiani also agreed that, in the prodromal period of schizophrenia, individuals who have symptoms such as anxiety may benefit temporarily from non-pharmacological interventions.
When asked to consider whether the chronology of Mr Colebatch’s symptoms was consistent with a finding that, from August 2014 to October 2014, he suffered either an Adjustment Disorder or an Anxiety Disorder and then from October onwards “developed prodrome”, Dr Parmegiani stated inter alia as follows:
I think both points of view are hypotheses. There is certainly enough information in the documents to indicate that he was distressed about his knee pain and the testing situation, and also evidence that there may be some faulty thinking developing that increased over time. So, at the beginning, he might have started off with an adjustment disorder…
An adjustment disorder could be one. A non-, unspecified anxiety disorder, to me, doesn’t make any sense because we now have the information. So, he may have had an adjustment disorder to start off with, which then, over time, was more and more like prodromal stage of schizophrenia, which eventually did become schizophrenia… the anxiety disorder that has no cause and came out of nowhere can’t be explained at the time…
When asked why, given the high anxiety test scores, that there couldn’t have been a diagnosis of an Unspecified Anxiety Disorder, Dr Parmegiani stated as follows:
Because you’ve already got an external identified cause of the knee pain and the testing, et cetera, that would explain why it would be an adjustment disorder if you prefer that option versus the prodromal schizophrenia. But to say that something is there, we don’t know why, for no reason, is not tenable to me, because we have a reason, being either the adjustment disorder or prodromal schizophrenia…
In response to a question from the Tribunal, Dr Parmegiani agreed that the diagnosis of Unspecified Anxiety Disorder is used in circumstances where a person has symptoms of anxiety, but their condition is not able to be characterised fully in any of the other specified disorders. He also agreed with the Tribunal’s description of this condition as a kind of label in order to provide a diagnosis, in a clinical setting, while waiting to see what happens.
In response to a request by the Tribunal to clarify the role of “hindsight” in the context of psychiatric diagnosis, Dr Parmegiani stated as follows:
You diagnose what you have on symptoms at the time, remaining aware that the clinical picture may change over months or years. And even though – I would have diagnosed perhaps an adjustment disorder at the time. That picture could have changed later on, and I would have revised that diagnosis. It could have resolved fully, in which case there is no psychiatric diagnosis, or it could have become a major depressive illness, bipolar disorder, schizophrenia. I just have to treat what I have.
Dr Jayalath – Consultant psychiatrist
In June 2017 Mr Colebatch was referred to Dr Jayalath by his then GP for further assessment.
In a letter, dated 10 June 2017, Dr Jayalath confirmed that Mr Colebatch suffered from schizophrenia but “is not willing to accept his diagnosis”. Dr Jayalath noted that Mr Colebatch “currently does not experience positive symptoms of the illness” but that there are “quite a number of cognitive and negative symptoms associated with his condition”.
In a letter, dated 9 December 2017, Dr Jayalath noted Mr Colebatch had reduced his dose of Amisulpride to 400mg nocte[24] and has agreed to continue on this dose for the next year. Dr Jayalath stated that Mr Colebatch has “a very rigid pattern of behaviour”, has “very limited insight to his illness” and has “a higher risk of relapse”.
[24] On discharge from Hornsby Hospital, in November 2016, Mr Colebatch’s prescribed medication was Amisulpride 800mg at night.
In a letter, dated 3 March 2018, Dr Jayalath noted that Mr Colebatch has been compliant with Amisulpride 400mg at night. He also stated that Mr Colebatch has “residual negative and cognitive symptoms” and also suffers from “co-morbidity of anxiety and PTSD”.
Dr Jayalath noted that Amisulpride covers all the conditions but does not provide any other details with respect to the claimed co-morbid conditions.
In subsequent letters Dr Jayalath refers to changes in medication but does not provide any other additional relevant information.
In my view, the correspondence from Dr Jayalath does not address the specific issues before the Tribunal and, therefore, is of little value for present purposes.
CONSIDERATION
It is agreed, that Mr Colebatch suffered an Adjustment Disorder, being an injury that arose out of his defence service, with a date of onset of 7 December 2012. Therefore, the respondent is liable to pay compensation to Mr Colebatch pursuant to section 23(1) of the MRC Act in respect of this disorder.
It is also agreed, that Mr Colebatch’s symptoms had subsided and that, by 5 March 2013, he had fully recovered from the Adjustment Disorder.
It is agreed that, during his defence service, Mr Colebatch was also diagnosed as suffering from schizophrenia.
Schizophrenia is a severe mental health disorder that persists throughout life with variable clinical presentation and treatment response. Signs and symptoms are variable and include “changes in perception, emotion, cognition thinking and behaviour”[25].
[25] B J Sadock, V A Sadock, P Ruiz; Synopsis of Psychiatry; 11th Edition 2015.
The psychotic features of schizophrenia “typically emerge between the late teens and the mid-30’s”[26]. The onset may be “abrupt or insidious, but the majority of individuals manifest a slow and gradual development of a variety of clinically significant signs and symptoms”[27]. Half of these individuals “complain of depressive symptoms”[28].
[26] DSM-V p 102.
[27] Ibid.
[28] Ibid.
The characteristic symptoms of schizophrenia involve “a range of cognitive, behavioural and emotional dysfunctions, but no single symptom is pathognomonic of the disorder”[29].
[29] Ibid p 100.
Prodromal symptoms “often precede the active phase”[30] and negative symptoms “are common in the prodromal phase”[31]. Individuals who had been “socially active may become withdrawn from previous routines” and this is often the first sign of the disorder[32].
[30] Ibid p 101.
[31] Ibid.
[32] Ibid.
There appears to be no dispute that the onset of the active phase of Mr Colebatch’s schizophrenia, was in or about early February 2015.
What is in dispute, is the time of onset of the prodromal phase of Mr Colebatch‘s schizophrenia.
The evidence before the Tribunal clearly indicates that, in the second half of 2014, Mr Colebatch began to suffer psychological symptoms and some changes in his behaviour.
Professor Arya suggested that Mr Colebatch “had started getting a bit unwell in the second half of 2014”. I note that Prof. Arya was the first psychiatrist to assess Mr Colebatch after he had been successfully treated for his psychotic episode, and I have no reason to doubt that he was referring to the onset of the prodromal phase of Mr Colebatch’s schizophrenia.
Dr Parmegiani attributed Mr Colebatch’s symptoms and behavioural changes to the prodromal phase of Mr Colebatch’s schizophrenia.
It is submitted for Mr Colebatch, that the onset of the prodromal phase of his schizophrenia was at some time between the end of October 2014 and onset of the active phase in early February 2015, and that, between July and the end of October 2014, he also suffered a discrete co-morbid “significant disorder of mental health” as specified in SOP Schizophrenia 2016.
The submission relies largely on the analysis and opinions expressed by A/Prof. Nagel in her written and oral evidence.
A/Prof. Nagel’s initial and only examination of Mr Colebatch was, on 19 April 2016, more than 12 months after Mr Colebatch had presented with his first psychotic episode and more than 6 months after Prof Arya had confirmed the diagnosis of schizophrenia.
In her letter of 29 July 2016, addressed to “Dear Dr.”, A/Prof. Nagel did not mention schizophrenia and referred to symptoms of anxiety and depression.
In her initial report, for the purposes of these proceedings, dated 3 November 2016, A/Prof. Nagel expressed the opinion that in August 2014 Mr Colebatch suffered a recurrence of his earlier Adjustment Disorder.
A/Prof. Nagel concluded that the Adjustment Disorder was a clinically significant psychiatric condition that was present at the time of clinically worsening of Schizophrenia and therefore Mr Colebatch met the criteria in factor 6(o) of the Statement Principles.[33]
[33] Statement of Principles concerning SCHIZOPHRENIA, No. 16 of 2009 was in force at that time. The definition of a clinically significant psychiatric condition included “any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR”.
She supported her opinion with reference to Mr Colebatch’s recent knee injury as a “stressor” and the “severe” K10 score in the Triage psychologist report of 11 August 2014.
In her second report, dated 24 April 2018 A/Prof. Nagel confirmed, her previously stated opinion, that in August 2014 Mr Colebatch suffered a recurrence of his earlier Adjustment Disorder and that his symptoms, at that time, were not “characteristic of schizophrenia or its prodrome”.
In support of her opinion, A/Prof. Nagel relied largely on the reports of the triage psychologist report in August 2014 and the VVCS report In October 2014.
In her third report, dated 14 December 2018 A/Prof. Nagel confirmed her opinion that “it is more likely than not that the presentation in August 2014 was consistent with that of an Adjustment Disorder”. She referred to Mr Colebatch’s “stress of a recurrent knee injury” and again relied on the triage psychologist and VVCS reports.
A/Prof. Nagel included a table comparing DASS 21 from 11 August 2014, 9 October 2014 and 18 February 2014.
It would appear that this Table was of doubtful value, as there was no DASS 21 score recorded in the Triage psychologist report on 11 August 2014, and the DASS score recorded in October 2014 was in fact a DASS 42 score which is based on different questions and has a different score profile.
A/Prof. Nagel also confirmed her opinion that “it is not likely that the presentation in August 2014 was consistent with prodromal symptoms of schizophrenia”.
I note that in her written and oral evidence A/Prof. Nagel indicated the various self-reported scores, as noted above, were not usually used for diagnostic purposes.
In response to a request from Mr Colebatch’s solicitor to consider additional documents, A/Prof. Nagel provided a fourth and final report, dated 26 June 2019[34].
[34] This report was filed with the tribunal on 27 June 2019 on the day originally scheduled for the hearing. Because of the late filing of the Report, the hearing was vacated to allow the Respondent to address the new evidence.
The letter of instruction, dated 24 June 2019, included a question as to whether she could “identify a condition or conditions listed in the definition of ‘clinically significant disorder of mental health’” in SOP Schizophrenia 2016 in order to satisfy the requirements of the SOP.
In her report, A/Prof. Nagel listed various reasons why Mr Colebatch’s symptoms in 2014 were not consistent with the prodromal phase of schizophrenia and proceeded to express the opinion that Mr Colebatch suffered another condition, Unspecified Anxiety Disorder, being a clinically significant disorder of mental health as defined in in SOP Schizophrenia 2016.
In support of this new diagnosis A/Prof. Nagel stated that this was an appropriate diagnosis because “when, as in this case, there is lack of information” and continues as follows:
This case has lack of information as it relies on the reports of others rather than first hand assessment – the lack of information is understandable as there was no specialist psychiatric assessment and diagnosis… Detail regarding emotional and behavioural symptoms contributing to sound diagnosis is thus limited. Although depressive symptoms are noted the anxiety symptoms are more prominent.
Also in the report, A/Prof. Nagel stated that, the clinically significant Adjustment Disorder that she diagnosed in her report of 3 November 2016 “and meeting criteria for Unspecified Anxiety Disorder was a material contribution to the schizophrenia”.
This statement is somewhat unusual as one of the criteria for the diagnosis of Adjustment Disorder is that that “the stress related disturbance does not meet criteria for another mental disorder”.
Overall, I found A/Prof. Nagel‘s evidence to be inconsistent and at times puzzling. She appears to suggest that in the 6 months prior to the onset of the active phase of Mr Colebatch’s schizophrenia, there were three possible distinct psychiatric disorders which could explain his symptoms and behavioural changes in 2014, that is, an adjustment disorder, an anxiety disorder and the prodromal phase of schizophrenia. In my view, this seems to be somewhat unusual.
In the development of her evidence, A/Prof. Nagel appears to interpret available information in a way which favours the requirements of the Statements of Principles and her diagnostic hypothesis that, in August 2014, Mr Colebatch’s symptoms and behavioural changes were not consistent with prodromal symptoms of schizophrenia.
I have concerns about A/Prof. Nagel’s reasons for making the diagnosis of Unspecified Anxiety Disorder, particularly as Adjustment Disorder is not included in the list of specified mental health conditions in SOP Schizophrenia 2016, whereas, anxiety disorder is included.
I note that in DSM 5, Adjustment Disorder is not included in the Anxiety Disorders diagnostic class but in the Trauma and Stress Related Disorders diagnostic class.
Also, In DSM 5[35] it is stated that unspecified disorder is a diagnostic category that is provided for clinical use to allow for a situation in which an individual presents with symptomatology that does not meet the criteria for any other specific category within a diagnostic class.
[35] DSM V pp 15-16.
The category of Unspecified Anxiety Disorder[36] applies to presentations in which symptoms “characteristic of an anxiety disorder that cause clinically significant distress or impairment in social, occupational, or other areas of functioning but do not meet the full criteria for any of the disorders in the anxiety disorders diagnostic class” and includes “presentations in which there is insufficient information to make a more specific diagnosis” (e.g. in emergency room settings).
[36] DSM V p 233
It is puzzling that A/Prof. Nagel seeks to make a diagnosis that is to be used in circumstances where there is insufficient information to make a more specific diagnosis, when Mr Colebatch suffers an undisputed serious mental disorder which provides for a plausible explanation for his symptoms and behavioural changes in 2014.
In making this diagnosis of Unspecified Anxiety Disorder, A/Prof. Nagel appears to have significantly devalued the information she relied on in the formulation of her original diagnosis of Adjustment Disorder.
Furthermore, SOP Schizophrenia 2016 defines “clinically significant disorder of mental health” as a disorder “which is of sufficient severity to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner”.
In summary, the evidence in this matter is that, in August 2014, Mr Colebatch presented with symptoms of performance anxiety during training exercises. In October 2014 he had some counselling sessions with VVCS and on 28 October 2014 the case was closed.
There is no evidence that Mr Colebatch had any other psychological “management” until February 2015 when he was admitted to a psychiatric ward and started on antipsychotic medication. Over the following months, Mr Colebatch’s mental health condition was managed with regular visits to a psychiatrist, Prof. Arya.
In August 2015 Prof. Arya noted Mr Colebatch was “was feeling quite good, is busy at work, is handling stress relatively well, is playing baseball on a regular basis, he attends boxing sessions, is feeling back to his normal self, is sleeping reasonably well”. Also, “he did not report any disturbances in biological functions, his interaction with other people has been quite relaxed and comfortable and he denied experiencing any symptoms of anxiety or depression”.
It would appear that Mr Colebatch’s symptoms of anxiety and depression had resolved with the treatment of his clinically significant disorder of schizophrenia, which had responded well to antipsychotic medication. His knee symptoms also appear to have improved, as he was able to play baseball and attend boxing sessions.
On the available evidence, even if I were to accept that in 2014 Mr Colebatch suffered a temporary anxiety disorder, I am not persuaded that it was a clinically significant disorder within the meaning of the definition in SOP Schizophrenia 2016.
For the above reasons I have preferred the evidence of Dr Parmegiani, particularly his oral evidence at the hearing, which I have noted in some detail above and do intend to repeat.
Dr Parmegiani’s analysis and explanation provided a clear objective assessment, which in my view was more consistent with the available evidence.
Dr Parmegiani acknowledged the difficulty in making a specific diagnosis during the prodromal phase of schizophrenia but consistently maintained his opinion that Mr Colebatch’s symptoms and behavioural changes in 2014 were consistent with the diagnosis schizophrenia, and that there was no preceding anxiety or adjustment disorder.
Therefore, I have decided that, on the balance of probabilities, the available evidence does not support a conclusion that between July 2014 and February 2015 Mr Colebatch suffered a clinically significant anxiety or an adjustment disorder which means that factor 9(14) of SOP Schizophrenia 2016 did not exist.
Factor 9(15) of SOP Schizophrenia 2016 provides for “an inability to obtain appropriate management for schizophrenia”.
In respect of the submission by counsel for Mr Colebatch that, alternatively, factor 9(15) of SOP Schizophrenia 2016 did exist, counsel for the Respondent submitted as follows:
This issue had “never been raised at any stage in these proceedings even though these proceeding were on foot and listed for hearing and vacated because of late service of a further opinion of Professor Nagel, which raised a new diagnosis. So no matter how the evidence has come out one can’t rely on something that’s never been raised prior to all the evidence being closed in the matter… and the Respondent… is completely prejudiced by that and simply can’t meet it.
Notwithstanding the submissions on behalf of either party, in my view, there is no convincing evidence before Tribunal that would support a conclusion that Mr Colebatch was unable “to obtain appropriate clinical management” for his schizophrenia.
Therefore, on the balance of probabilities, I am satisfied that factor 9(15) of SOP Schizophrenia 2016 did not exist.
It follows that, on the balance of probabilities, I am satisfied that Mr Colebatch’s defence service did not contribute, to material degree, to his schizophrenia and, therefore, the Respondent is not liable to pay compensation in respect of this condition.
DECISION
For reasons set out above the Tribunal finds that the reviewable decision of 18 November 2016 should be set aside and, in substitution, the decision is as follows:
i)During Mr Colebatch’s defence service from 7 December 2012 to 3 March 2013 he suffered a mental health condition diagnosed as an Adjustment Disorder.
ii)The Adjustment Disorder was an injury that out arose out of his defence service, in respect of which the Respondent is liable to pay compensation pursuant to section 23(1) of the MRC Act.
iii)During Mr Colebatch’s defence service, he suffered a mental health condition that was diagnosed as schizophrenia.
iv)The schizophrenia was not contributed to, to a material degree, by Mr Colebatch’s defence service and, therefore, in respect of this condition, the Respondent is not liable to pay compensation pursuant to section 23(1) of the MRC Act.
v)The Respondent is to pay Mr Colebatch’s reasonable costs of these proceedings, as agreed or taxed, with a rider that such costs do not include the costs incurred by reason of the vacation of the hearing on 27 June 2019.
I certify that the preceding 223 (two hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member
.............................[sgd].......................................
Associate
Dated: 16 January 2020
Dates of hearing: 27 June 2019; 11 & 12 November 2019 Counsel for the Applicant: Mr T Dixon Solicitors for the Applicant: NT Law Counsel for the Respondent: Mr B Kelly Solicitors for the Respondent: Sparke Helmore Lawyers
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