DGWY and National Disability Insurance Agency (NDIS)
[2025] ARTA 122
•25 February 2025
DGWY and National Disability Insurance Agency (NDIS) [2025] ARTA 122 (25 February 2025)
Applicant/s: DGWY
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/2278
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:25 February 2025
Decision:The Tribunal affirms the decision under review.
........................[SGD]................................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – funding for CBD oil – limiting the scope of the review – section 53 order – whether the requested support is an NDIS support – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024(Cth)National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018
Medicines and Poisons Act 2014 (WA)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60Secondary Materials
National Disability Insurance Agency, Our Guidelines – Supports you can access – Disability-related health supports, (Web Page) Disability Insurance Agency, Our Guidelines – Supports you can access – Reasonable and Necessary Supports, (Web Page)
Therapeutic Goods Administration, Department of Health and Aged Care – Medicinal cannabis: Information for patients, (Web Page) align="center">Statement of Reasons
The issue requiring determination by this Tribunal is whether the provision of cannabis oil is a reasonable and necessary support and therefore should be provided under the National Disability Insurance Scheme (the Scheme).
DGWY (the Applicant) is a 12-year-old male who resides with family in Western Australia.
The Applicant is a participant of the Scheme in recognition of impairments arising from his medical conditions that include autism spectrum disorder (ASD), Ehlers-Danlos syndrome, global developmental delay, attention-deficit hyperactivity disorder (ADHD), general anxiety disorder, post-traumatic stress disorder, specific learning disorder, central auditory processing disorder, thermo-regulatory dysfunction, alpha-thalassemia trait, and generalised epilepsy.[1]
[1] T1C, folio 48 and T6, folio 113
On 21 February 2022 the National Disability Insurance Agency (the Respondent) approved the Applicant’s statement of participant supports, with a review date of 21 February 2023 (the original decision).[2] DGWY’s plan provided funding totalling $249,575.34, which was made up of $118,270.66 for Core Supports, $126,304.68 for Capacity Building Supports, and $5,000 for Capital Supports.
[2] T24, folios 240 to 258
On 23 February 2022 the Applicant, through his mother, requested an internal review of the original decision, seeking the following:[3]
(i)supports in accordance with Administrative Appeals Tribunal (AAT) orders dated 12 October 2018[4] and 30 October 2019;[5]
(ii)for DGWY to be referred to the Complex Support Team;
(iii)funding for cannabidiol (CBD) oil;
(iv)continued Auslan training;
(v)funding for neurofeedback therapy.
(vi)funding for a vibration machine.
(vii)request for increased transport funding.
[3] T20, folio 209 and T21, folios 210 to 211
[4] T3, folios 108 to 109
[5] T4, folios 110 to 111
On 10 March 2022 a delegate of the Chief Executive Officer of the Respondent affirmed the Original Decision (internal review decision).
On 16 March 2022 the Applicant lodged his application to the AAT.[6]
[6] T1, folios
Over the course of the Tribunal proceedings, the decision under review has been remitted to the Respondent for reconsideration on six occasions, pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The latest remittal order was made on 9 May 2024 with the Respondent implementing a new plan commencing on 27 May 2024, with a review date of 27 May 2025.
As a result, the application before the Tribunal is taken to be an application for review of the Applicant’s statement of participant supports in the current plan dated 27 May 2024. The current plan provided funding totalling $430,627.40, which was made up of $222,858.51 for Core Supports, $200,902.89 for Capacity Building Supports, and $6,866 for Capital Supports.
Correspondence from the Applicant dated 8 May 2024 indicated that the only support in dispute was the provision of $4,560 in funding for the purchase of CBD oil.[7] The Applicant’s statement of facts, issues and contentions dated 3 July 2024 confirmed that this is the only support in dispute.[8]
[7] A10, folio 61
[8] A12, folios 65 to 71
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[9]
[9] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The Tribunal accepted into evidence various documents contained in the joint hearing tender bundle. In addition, the Tribunal was also assisted by the parties’ Statements of Facts, Issues and Contentions, and their submissions regarding the legislative changes implemented under the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 and National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 provided by the Respondent on 5 November 2024[10] and by the Applicant on 26 November 2024.[11]
[10] R7, folios 219 to 222 noting that the Tribunal incorrectly referred to these document as marked Exhibit R1 at hearing
[11] Marked Exhibit A14, noting that the Tribunal incorrectly referred to this document as marked Exhibit A1 at hearing
The Applicant’s submissions dated 26 November 2024 sought in the alternative, if CBD oil is not funded, an additional 10 hours per week of applied behavioural analysis (ABA) therapy to:[12]
Address an increase in behavioural challenges, including physical, verbal assault and self-harm behaviours due to an increase in ASD symptomatology and pain as the Applicants (sic) mother cannot afford to fund CBD oil.
[12] Applicant’s response to the Respondent’s submissions on National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024, folios 4 to 5
The Applicant also sought permission to call Mr John Schad, advanced behaviour support practitioner, as a witness.
The Tribunal convened a video hearing by Microsoft Teams on 28 and 29 November 2024, however the proceedings concluded on 28 November 2024. The Applicant was represented by Ms Liz Sbeghen, advocate, and his mother. The Respondent was represented by counsel, Ms Jennifer Flinn, instructed by Mr Jack Sime of Sparke Helmore Lawyers.
Prior to commencing proceedings the Tribunal took submissions regarding the scope of the review and whether Mr John Schad, behavioural practitioner, should be granted leave to appear as a witness. In short, Ms Sbeghen contends that it was procedurally unfair that the Applicant was not afforded the opportunity to provide a response to the Respondent’s submissions regarding the legislative changes. She acknowledged that sufficient notice of the ABA therapy support was not provided to the Respondent and so she sought an adjournment to permit the Respondent sufficient time to consider the request. The Respondent’s position is such that it was not given adequate notice of the Applicant seeking the ABA support nor that Mr Schad was to be called as a witness.
After a brief adjournment the Tribunal ordered, pursuant to section 53 of the Administrative Review Tribunal Act 2024 (Cth), that the scope of the review is limited to the provision of funding for CBD oil. The Tribunal was satisfied that such an order was appropriate after having regard to the objectives of the Tribunal and that the application has been before the Tribunal for over two years, that the CBD oil has been the only dispute in issue since May 2024 and that the Applicant is not deprived of a remedy in respect of seeking the provision of ABA therapy, being that the Applicant can seek a variation to the statement of participant supports directly with the Agency and outside of these proceedings.
The Tribunal also determined that it was appropriate given the witness schedule filed with the Tribunal that Mr Schad be granted leave to appear as a witness.
The Tribunal had the benefit of oral testimony provided under affirmation from the Applicant’s mother and Mr John Schad, behavioural practitioner.
LEGISLATIVE FRAMEWORK
The National Disability Insurance Scheme Act 2013 (Cth) (the Act) sets down the law that underpins the Scheme. The general principles guiding actions under the Act are set down at section 4 of the Act.
Section 3 of the Act outlines its objective. Subsection 3(1) of the Act outlines its objects. This includes giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities, enabling people with disability to exercise choice and control in the pursuit of their goals, promoting high quality and innovative supports that enable people with disability to maximise their independence and full inclusion in the community.
The Scheme provides, amongst other things, individual plans which fund certain supports (NDIS supports). The people who have access to the NDIS are referred to as participants.[13]
[13] Subsection 8(c) of the Act.
Section 33 of the Act outlines what must be included in a participant’s plan. Subsection 33(2) requires that a plan must include a statement of participant supports prepared with the participant and approved by the CEO. Paragraphs 33(2)(a) to (e) of the Act dictate that it must include general, reasonable and necessary supports as well as the date or circumstances in which the Agency must reassess the plan, in addition to the management of other aspects of the plan.
Subsection 33(5) of the Act directs that when deciding whether to approve a statement of participant supports the CEO (and this Tribunal standing in her shoes) must have regard to the participant’s statement of goals and aspirations, relevant assessments, the principle that a participant should manage their plan to the extent that they wish, the operation and effectiveness of previous plans and compliance with spending in addition to being satisfied the supports are reasonable and necessary and the NDIS rules are applied.[14] NDIS Rules are legislative instruments and so are binding on the Tribunal.[15]
[14] Subsection 33(5) of the Act.
[15] Subsection 209(1) and of the Act.
On 3 October 2024 the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 came into force. Numerous provisions were amended. Relevant to this application it included significant amendments to section 34 of the Act regarding reasonable and necessary supports. It introduced the concept of an NDIS support[16] and amended paragraph 34(1)(f) requiring the decision-maker to be satisfied that the support is an NDIS support. The amendments to the legislation must be applied when a statement of participant supports is approved or varied on or after 3 October 2024, even if the Applicant’s plan came into effect before commencement.[17]
[16] Section 10 of the Act
[17] Subitem 129(2) of Schedule 1 to National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024.
Subsection 34(1) of the Act now provides that when considering what ‘reasonable and necessary supports’ are to be funded that the decision maker must be satisfied that each limb outlined in paragraphs 34(1)(aa) to (f) is established:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The term ‘reasonable and necessary support’ is not defined in the Act. In the matter of McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) Mortimer J (as she then was) relevantly stated:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.[18]
[18] McGarrigle at [91]
The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) considered at [151] the meaning of reasonable and necessary supports:
… the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant.[19]
[19] WRMF at [151].
Subsection 34(2) of the Act states that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied that the criteria under subsection 34(1) are met in respect of a requested support.
The support rules relevant to NDIS supports sought in this application are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Supports Rules), providing guidance when undertaking an assessment of reasonable and necessary supports to be funded.
When addressing the Support Rules in McGarrigle Mortimer J relevantly stated:
The [Support Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funding under the NDIS.[20]
[20] McGarrigle at [43]
The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) modified the operation of section 34 of the Act by excluding certain supports from inclusion in a statement of participant supports. Schedule 2 to the Transitional Rules outlines supports that are generally not considered NDIS supports.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[21] The relevant Operational Guideline in this application are Reasonable and Necessary Supports and Disability-related Health Supports.
[21] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
ISSUES
The Applicant seeks the provision of CBD oil which the Respondent asserts is not an NDIS Support.
CONSIDERATION
The evidence before the Tribunal
When lodging this application for review the Applicant’s mother submitted that the funding of CBD oil is the responsibility of the Scheme, as all other avenues of support were exhausted. She stressed that CBD oil cannot be prescribed by a general practitioner, nor is it accessible under the Pharmaceutical Benefits Scheme or subsidised by private health funds. The mother submits that the CBD oil cost of $1,140 per month is prohibitive. [22]
[22] T1, folio 3
In a letter dated 14 January 2022 Dr Atish Chudasama, general practitioner, stated that the Applicant is treated with CBD oil:[23]
This has meant that he does not require any opiates.
The side effect profile of CBD oil is negligible compared the (sic) that of opiates. The current treatment regime is supported by the various specialists that he seen (sic) and the multi-disciplinary team.
…
It is necessary to continue CBD oil treatment for [the Applicant]’s ongoing overall wellbeing.
[23] T1C, folios 47 to 47
It is evident that Dr Chester Tan, neurodevelopmental paediatrician, supported the trialling of CBD oil to support the management of the Applicant’s difficulties dealing with “heat for summer and walking; issues with pain; since on CBD oil, this has been more helpful”.[24]
[24] T6, folios 113 to 114
In a letter dated 27 January 2022[25] Dr Tan stated that the Applicant’s ASD related issues include emotional dysregulation or hypersensitivity.[26] Dr Tan went on to state that the Applicant is:
making progress and there are benefits from the CBD oil despite the issues are still areas of ongoing concern as above. We discussed today that it is essential [the Applicant] receives the neurodisability funding for the above reasons.
[25] T1D folios 49 to 51
[26] T1D, folio 49
Dr Tan went on to make therapy suggestions, including ABA therapy, psychology, occupational therapy, physiotherapy, vibration therapy, speech therapy, dietician and neurofeedback. He stated that his impression was that the Applicant was making good progress mainly due to his therapeutic interventions and that without these therapies the Applicant “would find it hard to continue his regulation”.[27]
[27] T1D, folio 50
When outlining suggested plans Dr Tan stated that there must be adequate finding in all these therapeutic areas. He went on to state:[28]
…
4. [The Applicant] benefits from the CBD oil and as this is being managed by A/Prof Vickery, we will have this continued.
[28] T1D, folios 50 to 51
In a letter dated 7 October 2022 Dr Alistair Vickery, general practitioner, Emerald Clinics advised that the Applicant first accessed CBD oil for the treatment of his ASD on 19 December 2020 but that the medication has other benefits including reduced epileptic episodes, pain and anxiety, cleared eczema, improved sleep and gut health and reduced GP visits and prescription costs. Dr Vickery went on to state that the Applicant’s treating paediatrician supported the provision of this medication and the cost of this medication was $380 per month.[29]
[29] A3, folio 6
In a behavioural plan dated 3 January 2023[30] Mr John (or Josh) Schad, advanced behaviour support practitioner, reported that the Applicant engages in emotional outbursts, including crying, yelling, stamping his feet, refusing to speak, holding his breath and refusing to move. At times these outbursts can lead to aggression.[31] The Applicant’s pain symptoms can be a trigger for his emotional outbursts. Mr Schad went on to state that the Applicant takes medications to treat his epilepsy, anxiety, ADHD symptoms, gastrointestinal symptoms, skin conditions and pain.[32] Mr Schad reported that in addition to his overall physical wellbeing that affects his mood, energy levels and behaviour, environmental, social and weather conditions, other triggers that may lead to the Applicant having an emotional outburst include changes to routine, demands, delayed or denied gratification and social factors.[33] However, the Applicant’s “levels of aggression have been at near zero levels for approximately one year”.[34]
[30] A3, folios 7 to 20
[31] A4, folio 12
[32] A4, folio 13
[33] A4, folios 15 to 16
[34] A4, folio 20
An occupational therapy functional assessment report dated 1 November 2023 completed by Ms Miranda Bruyn, occupational therapist, recommended capital funding supports including $4,560 in the provision of CBD oil.[35]
[35] A6, folios 23 to 46
The Tribunal also notes that Dr Kenneth Maclean, paediatrician and clinical geneticist, Medilaw Pty Ltd opined in a report dated 26 February 2024 that there is “clear merit” in the continued prescription of CBD oil for the Applicant.[36] Dr Maclean went on to state:[37]
A/Prof Alistair Vickery is responsible for its prescription. There is regular, ongoing
review of this by Dr Tan with correspondence that attests to the close clinical liaison between Dr Tan, A/Prof Vickery and Dr Atish Chudasama. Emphasis as to its benefit and importance in the Applicant’s healthcare by each of these clinicians – together with the assessment of Dr Abid (and therapists) regarding the Applicant’s mechanical pain - is noted. This would suggest dual benefits, namely pain management and ASD-related symptomatology.[36] R2, folio 161
[37] Ibid
It is submitted on behalf of the Applicant that the CBD oil is not for the treatment of a health condition. Instead, it is directly related to the Applicant’s neurodevelopmental disorder and associated symptomology,[38] including challenging and violent behaviours. It was submitted that if CBD oil is not funded, the Applicant’s behaviours of concern will increase and so will require further behavioural intervention support. It is noted in a podiatrist report dated 11 March 2021 the Applicant’s mother reported that the use of CBD oil has apparently resulted in significant progress in the Applicant’s overall behaviour.[39]
[38] A14, page 3
[39] T13, folio 137
In response the Respondent asserted that the use of CBD oil to manage the Applicant’s challenging behaviours would amount to a chemical restraint as per clause 6(b) of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (the Behaviour Rules). Further, that implementing such a practice must be recorded and reported to the NDIS Quality and Safeguards Commission, as per sections 14 and 15 of the Behaviour Rules.
Findings of fact and application to the law
I find that the Applicant began a trial of CBD oil at the end of 2020 which resulted in improvements in his pain and sleep disruption.[40]
[40] T12, folios 127, 131
I am satisfied that the medical evidence supports a finding that the Applicant is prescribed CBD oil predominantly to manage his pain symptoms arising from his diagnosis of Ehlers Danlos Syndrome and the management of his ASD symptomology as reported by the prescriber of this medication, A/Professor Vickery. A/Professor Vickery did not elaborate on what ASD symptoms the CBD oil addressed and specifically whether the medication is prescribed to address the Applicant’s behaviours of concern.
After carefully considering the medical evidence provided by Drs Tan and Vickery I determine that there is no probative evidence to support a finding that the Applicant was prescribed CBD oil to manage his behaviours of concern, notwithstanding the fact that the CBD oil may have had an impact on the Applicant’s behaviours. Given this conclusion I am not required to consider whether the provision of CBD oil to the Applicant is a restrictive practice.
It is submitted on behalf of the Applicant that CBD oil is not prescribed on the basis of a health condition; rather it directly relates to the Applicant’s neurodevelopmental disorder. As I understand this submission the Applicant asserts that this means that the Support Rules generally, and specifically sections 3.5 and 7.4 of the Support Rules, result in a finding that paragraph 34(1)(f) of the Act is established.
I do not accept this proposition. The medical evidence from the Applicant’s general practitioner and neurodevelopmental paediatrician state that the provision of this medicine provides symptomatic relief to the Applicant from impairments arising from his medical diagnoses. Certainly, it is prescribed instead of opiates to manage the Applicant’s pain symptoms, as it does not have the same deleterious side effects and provides other benefits to the Applicant.[41] The medical evidence indicates that the prescription of CBD oil is for the Applicant’s symptoms arising from his medical conditions; it is not a capacity building support. In any event, even if I were to accept this proposition this would not, in my view, change the fact that the CBD oil is not an NDIS support for the reasons set down below.
[41] T6, folios 113 to 114, T1D, folios 50 to 51 and A3, folio 6
I next considered whether CBD oil is an NDIS support for the purposes of paragraph 34(1)(f) of the Act.
As I understand the submissions, it is conceded that the CBD oil is prescribed by a medical practitioner as part of a “suite of supports” to improve the Applicant’s functioning. Further, it is submitted that although there is no definition of legal cannabis, CBD oil “has the legal status of medicinal cannabis”[42] and that in Western Australia the prescription and supply of CBD oil must comply with the Medicines and Poisons Act 2014 (WA) and must be prescribed by a medical practitioner.[43] I accept the accuracy of these submissions.
[42] Ibid
[43] A14, page 4
Clause 7.5 of Schedule 1 to the Support Rules states that the NDIS will not be responsible for activities that aim to improve the health status of Australians, including the provision of pharmaceuticals.
Furthermore, as already outlined, Schedule 2 to the Transitional Rules outlines what is not an NDIS support. Relevant to this application it states:
Supports that generally are not NDIS supports
Column 1 Column 2
Item Category Supports
…4 Day-to-day living costs— The following:
Lifestyle(a) cigarettes, vapes and smoking paraphernalia, and legal cannabis;
…
12 Health The following:
…(d) pharmaceuticals (including prescription medicines and non-prescription medicines), biological medicines, vaccines, sunscreens, weight loss products, vitamins, sport and athletic supplements, and homeopathic medicines;
The Therapeutic Goods Administration (the TGA), an Australian government authority that operates under the auspices of the Commonwealth Department of Health and Aged Care, provides advice about how to legally access medicinal cannabis. In short, if can only be prescribed by a medical practitioner.[44]
[44] >
For the purposes of Item 4(a) of Schedule 2 to the Transitional Rules I am satisfied that the term “legal cannabis” refers to the provision of cannabis products that are provided with written authorisation of a registered medical professional and are TGA approved products or provided under the TGA’s Special Access Scheme. This is opposed to accessing cannabis products without the approval of a medical practitioner, which is not permitted (and so not legal) under the Medicines and Poisons Act 2014 (WA).
I find that the provision of CBD oil to the Applicant was approved under the TGA’s Special Access Scheme.[45] I also find that the Applicant has been prescribed CBD oil by his treating general practitioner.
[45] A7, folios 47 to 54, A9, folios 55 to 60
It is on this basis that I am satisfied that the provision of CBS oil to the Applicant is legal cannabis as set down in Item 4(a) of Schedule 2 and so CBD oil is not an NDIS support for the purposes of paragraph 34(1)(f) of the Act.
Though not necessary, for completeness I also considered whether CBD oil is a pharmaceutical product and so is not an NDIS support as per Item 12(d) of Schedule 2.
The Macquarie Dictionary defines pharmaceutical as either an adjective relating to pharmacy or a noun, being an item, especially a medicine, sold at a pharmacy.[46]
[46] >
On the basis of the medical evidence before me I am satisfied that the CBD oil is prescribed by A/Professor Vickery and is dispensed by a pharmacy as a medicinal product. It is on this basis that I conclude that CBD oil is a pharmaceutical product.
I am not persuaded that CBD oil is an NDIS support. Therefore, paragraph 34(1)(f) of the Act is not established.
As I have determined that paragraph 34(1)(f) of the Act is not established, I am not required to consider whether paragraphs 34(1)(aa) to (e) of the Act are made out.
I conclude that the provision of CBD oil is not a reasonable and necessary support for the purposes of subsection 34(1) of the Act.
CONCLUSION
66.Accordingly, the requested provision of CBD oil is not a reasonable and necessary support that can be funded and provided under the Scheme.
DECISION
67.For these reasons, the decision under review is affirmed.
Date(s) of hearing: 28 November 2024 Advocate for the Applicant: L Sbeghen Counsel for the Respondent: J Flinn Solicitors for the Respondent: J Sime, Sparke Helmore Lawyers
0
2
0