Cotter and Secretary, Department of Social Services (Social services second review)
[2018] AATA 3780
•12 October 2018
Cotter and Secretary, Department of Social Services (Social services second review) [2018] AATA 3780 (12 October 2018)
Division:GENERAL DIVISION
File Number: 2017/2234
Re:Julie Cotter
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:12 October 2018
Place:Adelaide
The decision under review is affirmed.
.............................[Sgd].......................................
Senior Member B J Illingworth
CATCHWORDS
SOCIAL SECURITY – Claim for Disability Support Pension – Physical, intellectual or psychiatric impairment – Whether an impairment rating of 20 points or more exists under the Impairment Tables – Whether fully diagnosed, fully treated and stabilised – Job Capacity Assessment Report considered – Medical reports considered – Decision under review affirmed
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, s 4
CASES
Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252
Gallacher v Secretary, Department of Social Sevices [2015] FCA 1123
Dragojlovic v Director-General of Social Security (1984) 1 FCR 301; 52 ALR 157.
Koutsakis v Director-General of Social Security (1985) 10 FCR 42Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428; [2008] FCAFC 48
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member B J Illingworth
12 October 2018
INTRODUCTION
On 9 March 2016, the Applicant lodged a claim for Disability Support Pension (“DSP”).[1] On 28 October 2016, an Authorised Review Officer (“ARO”) of the Department of Human Services, Centrelink (“the Department”), decided that the Applicant did not have an impairment rating of 20 points or more for her medical condition of major depressive disorder in accordance with s 94(1)(c) of the Social Security Act 1991 (“the Act”). It was also found the Applicant did not have a continuing inability to work and had not participated in a program of support; therefore did not qualify for receipt of the DSP.[2]
[1] Exhibit 1, T7.
[2] Exhibit 1, T3.
The Applicant applied for a review of the ARO’s decision to the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”), and on 8 March 2018 the AAT1 affirmed the decision of the ARO.[3]
[3] Exhibit 1, T2.
The Applicant now applies to this Tribunal for a review of the original decision.[4]
[4] Exhibit 1, T1.
At the hearing before this Tribunal, the Applicant represented herself and the Respondent was represented by Mr Christian Visser, FOI and Litigation Branch, Department of Human Services.
The T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence together with the following exhibits:
(a)Report of General Practitioner Dr Margo Noel dated 7 August 2017;[5] and
(b)Report of Professor Cherrie Galletly dated 17 July 2017.[6]
[5] Exhibit R1.
[6] Exhibit R2.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the Applicant was qualified to receive the DSP in relation to the claim lodged at the Department on 9 March 2016, or within the 13 weeks thereafter (“the Qualification Period”).
It has been accepted by the Respondent that the Applicant has a mental impairment within the meaning of s 94(1)(a) of the Act, therefore the Tribunal must assess the following:
(a)Whether the Applicant’s impairment attracts 20 points or more under a single Impairment Table; and
(b)If so, whether the Applicant had a continuing inability to work.
LEGISLATION
The legislation relating to qualification for DSP, and the reference to the Impairment Tables is set out in the provisions of s 94(1) of the Act, which relevantly reads:
94 Qualification for Disability Support Pension
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The provisions relating to whether an Applicant has a continuing inability to work are relevantly set out in s 94(2) of the Act:
94 Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)In all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuity inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
A severe impairment is defined pursuant to s 94(3B) of the Act:
94 Severe impairment
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
It follows that if a person has a “severe impairment” within the meaning of subsection (3B), namely, an impairment which attracts 20 points or more under a single Impairment Table pursuant to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination 2011”), then he or she must only satisfy the cumulative requirements of ss 94(2)(a) and 94(2)(b) of the Act.
In this case the Applicant has the one impairment, namely, a mental health condition. In order to qualify for DSP the Applicant’s mental health condition must be assessed as a “severe impairment” in order for her to satisfy the requirements of s 94(1)(b) of the Act.
THE QUALIFICATION PERIOD
Also relevant in these proceedings is clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the “Administration Act”), which reads:
4 Start day – early claim
(1)If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and the person is not, on the day on which the claim is made, qualified for the payment; and
(b) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(c) the person becomes so qualified within that period:
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
The provisions in clause 4(1) of Schedule 2 to the Administration Act mean that the Applicant’s qualification and impairment ratings must be determined as at the date of her claim, and the only exception is where she is not qualified at the date of claim, but “will become qualified” and “becomes so qualified” within 13 weeks of lodging her claim.[7]
[7]See Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922; Re Fanning and Secretary, Department of SocialServices (2014) 144 ALD 133; [2014] AATA 447; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404.
In the Applicant’s case, the start day is the day she lodged her claim form with the Department, namely 9 March 2016, and the Applicant’s qualification for DSP is to be determined during the period 9 March 2016 to 8 June 2016.
It is important to note in assessing any medical evidence provided after the Qualification Period concerning the functional impact of an Applicant’s impairments, the reports can only be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[8]
[8] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252; Gallacher v Secretary, Department of Social Sevices [2015] FCA 1123.
IMPAIRMENT TABLES
Section 94(1)(b) of the Act refers to the Impairment Tables. The Impairment Tables themselves are contained in the Determination 2011.
“Impairment” is defined as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” is defined as “a medical condition” pursuant to paragraph 3 of the Determination 2011.
The Determination 2011 requires that for an assessment to be made and an impairment rating assigned, a person’s condition must be “permanent”. A condition can be classified as “permanent” if the person satisfies the provisions of paragraphs 6(4), (5) and (6) of the Determination 2011:
6 Applying the Tables
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)The person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment
Note: For reasonable treatment see subsection 6(7)
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
The information to be taken into account in applying the Tables are provided pursuant to paragraph 7 of the Determination 2011:
7 Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
With respect to the Applicant, the appropriate table is Impairment Table 5. It relevantly provides with respect to an “appropriately qualified medical practitioner”:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
MATERIAL FACTS AND EVIDENCE AT THE HEARING
The Applicant said that she first started having troubles following a motor vehicle accident sometime in 2003. After returning to work after the accident, the Applicant said she was forced to drive. She said she did not feel comfortable, and this started the anxiety.
The Applicant said she had many problems while working at TransAdelaide. She stopped working at the Elizabeth office when they closed down, and she was moved to the city. In 2015 she ceased her employment.
She said her mental health was bad at the time she left TransAdelaide. The Applicant said that she had been “ripped off” by family members and she had a falling out with two sisters. She also has a brother with whom she is on cordial terms.
The Applicant has a residence at Windsor Gardens over which there is a registered mortgage. However, the Applicant spends much of her time living at her mother’s home at Magill. She explained this is because she is now scared of living in her own home.
The Applicant said she could not live at that residence anymore and in particular that she was frightened of her brother-in-law whom she accused of having stolen money from her. She said that when she ceased employment with TransAdelaide, she asked her brother-in-law to return the monies she had leant to him. He refused to repay the loan and a conflict began. She said he would do things to her such as glue her letterbox. She said he threatened her all the time and would damage her property. She said he threw paint in her air conditioner and she is afraid, also because he still possesses keys for her property.
Due to the ongoing fear she now lives with her mother but will return to her residence for approximately 3 hours each week to make sure no one is squatting in her residence. The Applicant also said that she had turned off the electricity to the premises because she heard her brother-in-law was operating a business out of the premises.
The Applicant said that she takes care of her mother who is 91 years old and not well. Her mother has problems cleaning the home but the Applicant provides as much assistance as she can.
The Applicant said that her mental health condition worsened in 2016 but she was saved by her music. She said at the time of her claim she could look after herself but only because she had no assistance available from others. Whilst employed and with a benefit of a regular income she regularly attended the theatre. She often went to karaoke events with her boyfriend with whom she has been in relationship since 2003.
By 2016, the Applicant said she went out approximately once a week. The reason she went out was to be with people which she found therapeutic. She still sees her boyfriend and they have music in common. They continue to go to karaoke events once or twice a week at hotels, RSL venues, or sporting clubrooms. They also attend musical theatre and the symphony orchestra. She said she used to attend “the pictures” often but can no longer concentrate on the movies.
The Applicant said however that she did not see her boyfriend as much as she did in 2016 because she is too tired and lacks the energy to socialise. She said she used to walk a lot, but now finds it difficult. She said she still walks occasionally so she can feed the birds.
The Applicant said that she now wanted to sell her home but does not know what to do and how to go about the process of selling her residence.
The Applicant saw Dr Noel, a General Practitioner in 2005 who referred her to Dr Tingay, a Psychiatrist. The Applicant explained that she did not like Dr Tingay who she attributed as having said in respect of the Applicant; “no one has that many problems” and she “must be imagining it”. Dr Tingay had also suggested she suffered from schizophrenia. The Applicant was thereafter referred to psychiatrist Professor Galletly who she saw in 2013 and 2014.
The Applicant said Dr Noel had recommended a Mental Health Care Plan. Dr Noel suggested she go to Norwood Medical Centre.
Dr Ventura
The Tribunal received a report by Dr Antonella Ventura, Consultant Forensic Psychiatrist dated 26 November 2012 prepared in relation to the Applicant’s capacity to return to work. Amongst other things the report confirmed that the Applicant reported issues with her employer, including:
(a)That she was employed as a ticket clerk with TransAdelaide, initially working at the Elizabeth Railway Station, and then in Adelaide.
(b)That she felt unsafe at work and had issues with her landline and duress alarm.
(c)That she was provided with a mobile phone that she said did not work and expressed the view that her employer had diverted the mobile phone and was setting her up to fail.
(d)That her employer was “playing with [her] mind” and that she was being set up.
The Applicant told Dr Ventura she did not have schizophrenia.
Dr Ventura diagnosed the Applicant as suffering from a major depressive episode and post-traumatic stress disorder; which symptoms interfere with her ability to look out for her financial affairs, her apartment and problem solving.
Dr Ventura opined that the Applicant was in need of both pharmacological and psychological treatment. Dr Ventura referenced a previous report from Dr Tingay, and recommended the same course of treatment; namely that the Applicant commence taking antidepressant medication to help her depressive condition. The Applicant refused to take the medication prescribed by both medical practitioners.
In assessing the Applicant’s ability to return to work it was opined that this was hard to predict because the Applicant was not receiving treatment and refusing to take medication.
The Applicant did not enjoy a good relationship with Dr Tingay and she consulted Professor Galletly from 2013 to 2014.
Job Capacity Assessment Report, Employment Assessment Report and Disability Medical Assessment
The Tribunal received a Job Capacity Assessment Report and an Employment Services Assessment Report with assessment dates of 10 May 2016[9] and 25 July 2016[10] respectively.
[9] Exhibit 1, T19, pp 204-208.
[10] Exhibit 1, T21 pp 213-216.
Those reports reference the Applicant’s condition as being fully diagnosed, treated and stabilised, however in referencing Dr Noel and Dr Ventura it was reported that the Applicant exhibited cognitive problems such as confusion and memory impairment, with a history of refusing treatment. It was reported that in a telephone discussion with Dr Noel on 10 May 2016, the Applicant was affected by paranoid delusions, limited insight, was mentally very unwell and continued to refuse treatment.
In the report dated 25 July 2016, it reads:
Details: The condition has been diagnosed by medical specialists, however no treatments appear to have been undertaken, reportedly due to a history of treatment refusal, but which the client now appears to acknowledge a need for. [11]
[11] Exhibit 1, T21 p 214.
The Job Capacity Assessment Report of 10 May 2016 assessed that the condition was fully treated, diagnosed and stabilised and attracted an impairment rating of 20 points.
The Tribunal also received a Government – Contracted Doctor Disability Medical Assessment (“DMA”)[12] with the Date of Assessment 30 June 2016. The history reported within that report from the Clinical Psychologist accords with the evidence and reported history before the Tribunal. Similar to the report dated 25 July 2016, the author noted “no treatments appear to have been undertaken, reportedly due to a history of treatment refusal, which the client now appears to be acknowledging a need for.” The author of the DMA opined that an impairment rating of 5 points could be attributed to the Applicant for her mental condition.
[12] Exhibit 1, T20 pp 219-211.
DR NOEL
The Tribunal received Centrelink Medical Reports dated 20 August 2014[13] and 22 February 2016;[14] both reporting symptoms of anxiety, depressed moods, difficulty managing affairs and impaired organisational skills.
[13] Exhibit 1, T16 p 181.
[14] Exhibit 1, T18 p 193.
In a report dated 7 August 2017,[15] Dr Noel reported that the Applicant had been in her care since she had been unfit for work in 2011.
[15] Exhibit R1.
Dr Noel said the Applicant had “failed to improve and after leaving the workplace and her difficulties with relationships and ability to function have pervaded all areas of her life”.[16] She opined that the Applicant had been diagnosed as suffering from depression, paranoid and persecutory thought patterns and had a lack of insight and reluctance to engage in assessment and treatment by mental health professionals.
[16] Exhibit R1, p 1.
It was reported that the Applicant was estranged from her three sisters, and Dr Noel expressed concern for the Applicant’s wellbeing and referenced lack of insight as a significant barrier to engaging in treatment. It was also reported that the Applicant refused medication, but nevertheless there was no guarantee it would be successful.
With respect to Dr Noel, the Applicant said that the doctor suggested she go on a low dose medication, however did not push her and left it up to the Applicant as to whether she would take the medication or not.
PROFESSOR GALLETLY
Professor Galletly saw the Applicant on 12 occasions between 25 June 2013 and 14 August 2014. In a report dated 17 July 2017, Professor Galletly made the following observations:[17]
I noted that she was over inclusive, circumstantial and tangential in her thinking. There was also a persecutor quality to her story. These characteristics would suggest a possible underlying psychotic disorder but during my interviews with her I was not able to elicit any further symptoms that might indicate psychosis. It is also possible that she had an underlying schizotypal personality disorder, exacerbated by the current life stresses.
She was very reluctant to take any medication at all but did in the end agree to take an antidepressant.
It would therefore not be correct to say that her mental health condition was fully diagnosed, treated and stabilised.
It well may be that she had an evolving psychotic disorder. However as noted above, the other possibility is that she has a schizotypal personality disorder, along with depression
I would suggest a current assessment by a psychiatrist would be the best way forward at this point.
[17] Exhibit R2.
Professor Galletly reported that the Applicant was very reluctant to take any medication at all but in the end did agree to take anti-depressants, albeit I note the Applicant’s evidence that despite agreeing to take anti-depressants and receiving a script for medication, in the end she did not take anti-depressant medication.
Professor Galletly opined that it is not correct to say that the Applicant’s mental health condition was fully diagnosed, treated and stabilised, referencing a number of “possible” conditions and the need for further assessment.
CROSS-EXAMINATION OF THE APPLICANT
As to her financial circumstances, the Applicant acknowledged that she had a substantial deposit of money; being superannuation monies received after she ended her employment. She explained that she attended the bank at least once a week, and she meticulously kept her receipts and checked all monies received before leaving the bank. She also deals with her own financial obligations in relation to motor vehicle expenses, health insurance and car insurance, both insurance payments being made by direct debit from her account. She understood and maintained the management of her finances.
The Applicant gave evidence that she does live independently. The Applicant accepted that she can do everyday things, such as buying food, but she does not cook and prefers to eat out, often using her Entertainment Book. The Applicant said that she was not so depressed that she cannot mix with people; that she wanted to be around people and she was not a hermit.
The Applicant said she is currently engaged in court proceedings with her brother-in-law in relation to the strata title property of which she is an owner. She accused him of taking monies out of her account. The Applicant described the conflict with her strata corporation, saying that she had been “ripped off” and that her brother-in-law was not paying his contribution to one half of the mortgage payments. She said that she and her brother-in-law were the joint owners of the strata property, and he had taken monies from their joint account.
The Applicant’s mother is over 90 years of age, and the Applicant goes to the shops for her mother who might come on occasions for a trip out, however the Applicant now provides substantial personal support for her elderly mother. She said she also pays for the insurance on her mother’s house and pays the electricity.
The Applicant was asked about the origin of her fear for medication. The Applicant said that she was afraid of medication because she did not want to be a drug addict. She did not enjoy being mentally ill but nonetheless she did not want to take any medication that might be prescribed for her by her treating practitioners. The Applicant said she was trying to recover from her illness naturally and medication is not natural. She is against all forms of drugs. She said she was interested in seeing someone who could teach her relaxation techniques. She said she wants to feel better, because she is not a happy person anymore.
The Applicant acknowledged that she had been previously recommended to undertake a Mental Health Care Plan and that she is prepared to do it now. She acknowledged that Professor Galletly had recommended such a plan, as had her treating General Practitioner Dr Noel. She was referred to professionals who work close to her home, for the purpose of establishing treatment in accordance with a Mental Health Care Plan. However the Applicant said she was unable to make a convenient appointment to see them. She had let that lapse. She now intends to make an appointment to undertake a Mental Health Care Plan. The Applicant said that she wanted to do it.
Evidence of Dr Noel
Dr Noel gave evidence by telephone. She first saw the Applicant on about 30 August 2005. Dr Noel detailed the Applicant’s history including that the Applicant finished work in 2011 at a time when she was struggling with a number of health issues, in particular anxiety, mood disturbance and delusions.
Dr Noel first referred the Applicant to Dr Tingay, but the Applicant was not amenable to the treatment suggested. The Applicant was against using medication and refused the antipsychotic medication when the possibility was discussed.
Dr Noel gave evidence of the Applicant’s personal history as reported to her; including the Applicant’s current living arrangements and that she no longer lived at her own premises because of fear. The reported history accorded with the evidence given by the Applicant. Dr Noel said that she understood the Applicant to be in a legal dispute with her strata corporation, which has been running over the last two to three years.
In referencing the Centrelink Medical Report dated 22 February 2016, under the heading “Current Treatment” Dr Noel reported the Applicant was undergoing “regular counselling and review with mental health nurse”, with a commencement date of 2012. Dr Noel could not say what the current status was in relation to mental health nurse support, and in particular was under the impression that it had stopped. She was not sure when the Applicant last saw a mental health nurse. Dr Noel said that she would support the Applicant in reorganising mental health support including the completion of forms and any referrals that are required.
Dr Noel was aware of the Applicant’s relationship with her boyfriend, which at times she understood could be difficult. She was aware that the Applicant had lost contact with her extended family with whom she has had difficult times and now her main contact is her mother.
Dr Noel did not know if antidepressant and antipsychotic medication would make a difference but it would be medication she would urge the Applicant to try. If the Applicant is suffering from schizophrenia the medication might make a difference to her wellbeing.
Dr Noel has tried to assist the Applicant in organising other public funded health treatments that might be able to positively contribute to her daily living, and are close in proximity to the Applicant. Indeed Dr Noel has been very supportive of the Applicant, helping her complete various forms not strictly of a medical nature; however Dr Noel said the Applicant needs to be willing to progress treatment herself.
Dr Noel has been trying to organise a psychologist to assist the Applicant and there is a service available to which she referred the Applicant in or about December 2017, but there was nothing to indicate that treatment had advanced to date.
There was a Mental Health Plan drawn up in December 2017, but that could not be organised and progressed with the Applicant. Dr Noel observed that the Applicant has shown some improvement when she has someone to help her work through her daily issues.
Dr Noel acknowledged that it was hard to determine with precision the Applicant’s diagnosis, and in particular whether she suffered anxiety and depression secondary to psychiatric or schizophrenic personality disorder. It is very difficult to diagnose her condition without trialling medication.
Dr Noel said that the medical practitioner in the best position to speak to the Applicant’s mental health issues was Professor Galletly and she would defer to the opinion expressed by Professor Galletly. Dr Noel’s attention was drawn to Professor Galletly’s report dated 17th July 2017, and the opinion that the Applicant’s mental condition was not fully diagnosed, treated and stabilised. Dr Noel deferred to that opinion.
CLOSING SUBMISSIONS
The Applicant in closing said that she was not suffering from schizophrenia. She acknowledged that she needed help and needed to get better and to get on with her life. She acknowledged that her condition has worsened but she will improve once a number of personal issues have been resolved.
The Applicant said that her condition was “like a breakdown” and that she had been bullied. She referred to her brother-in-law and that she had evidence “on him” in relation to a debt that he owes her of or about $100,000.
The Applicant said she was not stable and that nothing would help until she sorted out her problems, including her strata corporation dispute which has caused her much anxiety. The Applicant said she could be diabetic.
The Respondent in closing submissions accepted that the Applicant suffers from a mental health condition and therefore satisfies s 94(1)(a) of the Act.
The Respondent referred to the Applicant’s ongoing refusal to undertake appropriate treatment including pharmacological, psychological and other support services that would assist her in her mental health condition.
The Respondent referred in particular to the report of Dr Ventura of 26 November 2012,[18] and Professor Galletly of 14 August 2014[19] and 17 July 2017.[20] The Respondent argued that there was no medical or other compelling reason for the Applicant not to undertake treatment. The Respondent argued that the Applicant’s fear of taking medication and in particular her reluctance to engage in appropriate mental health treatments as arranged for her were unreasonable and hence both during the Qualification Period and thereafter her condition was not fully diagnosed treated and stabilised. The Respondent noted that by taking of medication the Applicants condition may have been better diagnosed and such diagnosis must remain guarded whilst she refused to take appropriate medication.
[18]Exhibit 1, T22, p 217-222.
[19] Exhibit 1, T17, 182-192.
[20] Exhibit R2.
Accordingly, the Respondent argues that the Tribunal should find the Applicant’s condition had not been fully diagnosed, treated and stabilised during the Qualification Period, and as such no impairment rating can be assigned for her mental health condition.
CONCLUSION
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in s 94(1)(b) of the Act. An Impairment Rating can only be assigned if the condition is permanent and the impairment is more likely than not to persist for 2 years.[21] To be considered permanent, the Applicant’s mental health condition must be fully diagnosed, treated and stabilised.[22]
[21] Determination 2011, para 6(3).
[22] Determination 2011, para 6(4).
To be fully diagnosed, a mental health condition must have been fully diagnosed by an appropriately qualified medical practitioner, in this case it would have to either be a psychiatrist or include evidence from a clinical psychologist.[23]
[23] Determination 2011, Table 5.
Whether it has been fully diagnosed and treated for the purposes of paragraphs 6(4)(a) and (b) of the Determination 2011, the following is to be considered:[24]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[24] Determination 2011, para 6(5).
In the Applicant’s case, she refused to take medication prescribed by her treating doctors on a number of occasions. This has created a significant barrier to the Applicant’s treating doctors in fully assessing her condition.
According to paragraph 6(6) of the Determination 2011, a condition can be fully stabilised if the condition is not expected to result in any significant functional improvement, regardless of medication, or if there is a “medical or other compelling reason for the person not to undertake reasonable treatment.”[25]
[25] Determination 2011, para 6(b)(i)&(ii).
In considering the application of paragraph 6(6)(b)(ii) of the Determination 2011, I note the approach taken by the Full Court of the Federal Court of Australia in Secretary, Department of Families, Housing, Community Services and Indigenous Affairsv Jansen (2008) 166 FCR 428; [2008] FCAFC 48. The Full Court considered the predecessor provision (contained in the former Sch 1 B to the Act) which has since been replaced by the Determination 2011. The Full Court stated at [39]:
As Mr Hanks put it, the appropriate question to the decision maker to ask is, “Am I satisfied that there is a reason that compels, in this case, Mr Jansen … not to undertake treatment?” Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each. We agree that is the correct approach to the construction of clause 6. It follows that the primary judge erred in focusing on the purely subjective aspect of the test in clause 6.
I note the Full Court in Jansen[26] distinguished the cases of Dragojlovic[27] and Koutsakis[28].The Full Court accepted that the question is whether the decision-maker is satisfied that there is a reason that compels the applicant not to undertake treatment, however the assessment is not purely based on subjective good faith or the lack thereof in refusing treatment; but a formulation of both subjective and objective elements.
[26] Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428; [2008] FCAFC 48.
[27] Dragojlovic v Director-General of Social Security (1984) 1 FCR 301; 52 ALR 157.
[28] Koutsakis v Director-General of Social Security (1985) 10 FCR 42.
It follows that it is for the Applicant to hold a genuine reason for not taking medication or undergoing treatment, however it is for the Tribunal to determine whether that reason is “compelling”.
The Full Court in Jansen also considered the application of the phrase “other compelling reason.” The Court stated at [29]:
In support of its contention that the test of a compelling reason is subjective, the respondent points to the fact that clause 6 assumes a person will generally wish to pursue reasonable treatment unless the “risks and side effects” of the treatment are unacceptable to the person. The starting point for the enquiry is that, subjectively, the person concerned finds the treatment unacceptable. It is clear that, except where the reason for not undergoing treatment is a medical reason, which includes the treatment’s prospect of success, it will generally – if not always – be personal to the applicant and therefore subjective. It will be his or her reason (as opposed to the medical officer’s reason) for not undertaking treatment and, assuming that the reason given is the applicant’s genuine reason, there is no more to be said on that issue. However, it does not follow from the fact of the reason being subjective, that the question whether it is a compelling reason is also a subjective decision of the applicant.
I find there is an argument that the Applicant had a genuine reason to refuse to take the medication. In her evidence she made it clear she believed drugs were not natural, that she was afraid of taking them, and that she did not want to get addicted. It is not clear on the evidence before me however, whether this was a strongly held belief uninfected by her mental illness, or whether this belief was a further example of the manifestation of her illness.
Nonetheless I accept that this belief was genuinely and strongly held by the Applicant. There is no medical intervention or other order obligating the Applicant to undertake a treatment of drugs. Further given her strong aversion to taking drugs, any requirement that she do so may arguably have a detrimental effect upon her mental health. Having said that, I find I do not have any corroborating evidence before me that goes to that possibility, and the Applicant did not make that suggestion.
Dr Noel, in her report dated 7 August 2017, said that even with treatment it is “extremely unlikely that there will be significant functional improvement” for the Applicant to return to work in the next 2 years.[29] This is relevant to the operation of paragraph 6(6)(b)(i) of the Determination 2011. However, it is unclear to me whether this is in reference to the Qualification Period, or the period in which the report was written, namely 7 August 2017.
[29] Exhibit R1.
In contrast to the evidence in paragraph 89 above, during oral evidence Dr Noel stated that it may not be possible to diagnose the Applicant’s condition without trialling medication. Antipsychotic medication may be beneficial if the Applicant had a schizophrenic type disorder, however not if she had more of a personality disorder. She also strongly encouraged the Applicant to pursue mental health support and suggested it may result in functional improvement. With respect to a diagnosis, Dr Noel believed Professor Galletly’s assessment would be the most reliable and deferred to her opinion.
Professor Galletly did not find the Applicant’s mental health condition to be fully diagnosed, treated and stabilised, referencing a number of “possible” disorders. This appears to be due to the fact that the Applicant was “very reluctant to take any medication at all.”
Although I find that the Applicant had a genuine reason to refuse medication, I am not satisfied on the evidence before me, that the reason was compelling. I find the refusal to undertake a treatment of drugs and whether the medication would be of any benefit, would require further investigation were it the only concern with respect to the failure to undertake appropriate treatment.
However, the Applicant not only refused to take medication for her psychological condition, but also failed to undertake appropriate psychological treatment; including engaging with a psychologist and undertaking a Mental Health Plan. The Applicant had ample opportunity before, during and after the Qualification Period to pursue such treatment but failed to do so. She provided no satisfactory reason for such failure. Certainly she did not object to pursuing such treatment options, and unlike her fear of taking medication, she had no aversion to such treatment.
The Applicant acknowledged she was unwell and that she wanted to undergo such treatment. During her evidence, she expressed a wish to pursue relaxation and “verbal therapy” but provided no adequate reason as to why she had not already engaged in such treatment.
The Applicant has failed to undergo treatment as directed by her treating practitioners including in accordance with the Mental Health Plan, failed to engage with mental health nurse services, and failed to take responsibility for pursuing such treatment as repeatedly recommended by her treating medical practitioners. The Applicant has not provided any compelling or acceptable reasons for failing to pursue reasonable treatment.
Furthermore, given the difficulties identified by Dr Noel and Professor Galletly in determining the complete nature of the Applicant’s mental health condition, despite the diagnosis of depression, I find that the failure to pursue mental health support has resulted in the whole of her condition being not fully diagnosed.
Accordingly, I find the Applicant’s medical health condition was not fully diagnosed, treated and stabilised during the Qualification Period, and no impairment rating can be assigned to the Applicant’s mental health condition.
Based on the conclusions as stated above, there is no need to determine whether the Applicant had a continuing inability to work on account of her mental condition.
DECISION
The decision under review is affirmed.
I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
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Associate
Dated: 12 October 2018
Date of hearing: 16 July 2018 Applicant: In person Advocate for the Respondent: Mr Christian Visser Solicitors for the Respondent: Department of Human Services
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