Edwards v State of Victoria
[2021] VSC 423
•16 July 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02672
| WONYARNA EDWARDS | Plaintiff |
| v | |
| STATE OF VICTORIA | First Defendant |
| and | |
| JOHN CRONIN and CHRIS GRANT | Second and Third Defendants |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 June 2021 |
DATE OF JUDGMENT: | 16 July 2021 |
CASE MAY BE CITED AS: | Edwards v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2021] VSC 423 |
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ADMINISTRATIVE LAW – Judicial review – Determination by a Medical Panel of a medical question referred under Part VBA of the Wrongs Act 1958 (Vic) – Panel’s determination that plaintiff’s degree of impairment resulting from the claimed psychiatric injury did not satisfy the threshold level for a ‘significant injury’ – Panel concluded that plaintiff’s psychiatric conditions were in remission – Where Panel formed its conclusions on the basis that the plaintiff had last self-harmed in early 2017 and without obtaining up to date medical records – Whether Panel made a mistake on a central fact – Whether Panel failed to take into account an accurate history of the plaintiff’s self-harm – Powers of a Medical Panel to inform itself – Whether Panel failed to make an obvious inquiry, by not obtaining plaintiff’s up to date medical records – Materiality of failure to obtain records – Whether Panel failed to apply AMA Guides and GEPIC – Whether Panel’s conclusion that plaintiff’s conditions were in remission was procedurally unfair – Jurisdictional error established – Whether question should be reconsidered by differently constituted Medical Panel – Wrongs Act 1958 (Vic), ss 28LZ, 28LZA, 28LZC, 28LZE.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms FAL Ryan with Ms S Gold | Robinson Gill |
| For the First Defendant | Ms CM Harris QC with Mr DP McCredden | Matthew Hocking, Victorian Government Solicitor |
| For the Second and Third Defendants | No appearance |
HER HONOUR:
Wonyarna Edwards is a 25 year old man of Aboriginal descent who is currently serving a sentence of imprisonment in a Victorian prison. At the age of nine, he was placed in the care of the Secretary to the Department of Human Services. This was due to an unstable and chaotic home life, marked by neglect, violence, and drug and alcohol abuse. His schooling was profoundly disrupted, and he has had no formal secondary education. Mr Edwards himself has used drugs and alcohol since he was about ten years old. Unfortunately, his interactions with the criminal justice system also started early.
By July 2012, when he was 16 years old, Mr Edwards was detained at the Parkville Youth Justice Centre, in the custody of the Secretary as well as in her care. A recent neuropsychological assessment had found him to have borderline impaired cognitive functioning. He and several other boys were involved in a violent incident on 5 July 2012, during which Mr Edwards seriously injured a youth justice worker. The following day, the Youth Parole Board granted an application by the Secretary to transfer Mr Edwards to an adult prison. He was transferred to the Melbourne Assessment Prison and, from there, to the Charlotte Unit at Port Phillip Prison. He remained in the Charlotte Unit until 17 October 2012, when he was transferred to Malmsbury Youth Justice Centre.
Mr Edwards has commenced a proceeding in this Court against the State of Victoria, claiming damages for psychiatric injury suffered by him as a result of his detention in the Charlotte Unit (tort proceeding). He claims that the conditions of the detention were inhumane, and that the detention was unlawful and in breach of various duties owed to him by the Secretary and other public officials. The State denies these claims. Among other things, the State does not admit that Mr Edwards has suffered a ‘significant injury’ within the meaning of Pt VBA of the Wrongs Act 1958 (Vic).
On 1 March 2018, Dr Nathan Serry, a psychiatrist, certified that the degree of impairment resulting from Mr Edwards’ psychiatric injury and symptoms met the threshold level for significant injury. He described Mr Edwards’ condition as ‘a persistent depressive disorder with anxious distress’, punctuated by the ‘development of a major depression with anxious features and with mood congruent psychotic features’. Dr Serry assessed Mr Edwards’ level of psychiatric impairment at 25%, of which 10% was attributable to his time in the Charlotte Unit. Dr Serry’s certificate was served on the State in February 2019.
In April 2019, the State referred a medical question about this assessment to a Medical Panel, under s 28LWE of the Wrongs Act. It eventually provided documents relevant to the referral in October 2019. These included hundreds of pages of medical records from Mr Edwards’ time in youth custody, for various periods between 2012 and 2015, and in adult custody, in 2012 and between January 2016 and September 2019. The referral documents were accompanied by detailed written submissions on behalf of the State.[1] The tenor of those submissions was that the available medical evidence indicated that a substantial part of Mr Edwards’ psychiatric impairment was due to unrelated injuries or causes, which had to be disregarded in making the assessment.
[1]The submissions were also made on behalf of G4S Custodial Services Pty Ltd, which operates Port Phillip Prison. Mr Edwards’ claims against G4S in the tort proceeding were resolved shortly before the trial of this proceeding, and G4S did not appear at the trial. On 12 July 2021, I made orders by consent removing G4S as a party to this proceeding.
A Medical Panel was convened to consider the referral, comprising Dr John Cronin, psychiatrist, and Dr Chris Grant, psychiatrist. The Panel examined Mr Edwards during a prison visit on 17 March 2020.
The Panel provided its certificate of determination and a written statement of reasons on 22 April 2020. The effect of its determination, set out in full below, is that Mr Edwards did not suffer a ‘significant injury’ as a result of his detention in the Charlotte Unit. Assuming that Pt VBA of the Wrongs Act applies to the tort proceeding, the Panel’s opinion bars Mr Edwards’ claim for damages for non-economic loss.
In this proceeding, Mr Edwards seeks judicial review of the Panel’s determination. He contends that it was affected by jurisdictional error, due to two essential failings on the part of the Panel. The first failing was that it did not obtain his up to date medical records before reaching its determination; the second was that it did not have regard to numerous instances of self-harm that occurred after early 2017, including a suicide attempt in April 2019. Mr Edwards seeks an order in the nature of certiorari quashing the Panel’s determination, and an order in the nature of mandamus, that the Convenor of Medical Panels convene a differently constituted Medical Panel to consider the referred medical question.
For the reasons that follow, I have concluded that the Panel’s determination was affected by jurisdictional error in several respects. I will make orders quashing the determination and remitting the medical question for determination by a differently constituted Medical Panel.
The Panel’s determination and reasons
The Panel’s certificate of determination was given pursuant to s 28LZG(2)(a) of the Wrongs Act, on 22 April 2020. It set out the Panel’s answer to the single question that had been referred to it:
Question: Does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level?
Answer: The Panel determined that the degree of impairment resulting from the psychiatric injury to the claimant alleged in the claim does not satisfy the threshold level.
The Panel’s reasons for the determination noted that Mr Edwards was examined by both members of the Panel on 17 March 2020. The Panel said that it formed its opinion with regard to the documents and information referred to it in ‘Enclosure A’, the history provided by Mr Edwards, and the examination findings elicited by the Panel at the examination. Enclosure A was the bundle of documents provided by the State to the Convenor of Medical Panels on 14 October 2019. It included medical records kept in relation to Mr Edwards by Justice Health up to 10 September 2019, and detailed written submissions made on behalf of the State.
The Panel noted the serious violent incident at Parkville Youth Justice Centre on 5 July 2012, and Mr Edwards’ subsequent transfer to and detention in the Charlotte Unit until 17 October 2012. It noted Mr Edwards’ claim that, as a result of ‘the incident’, he suffered psychiatric injury including psychological disorder, post-traumatic stress disorder, persistent depressive disorder with anxious distress and major depression with anxious features, mood congruent psychotic features and emotional distress.
There followed an account of the Panel’s interview of Mr Edwards at the Melbourne Assessment Prison ‘in an interview room whereby Mr Edwards was separated by a barrier through which he could be seen and heard, an arrangement referred to as “a box visit”.’ The history taken from Mr Edwards included a description of the Moroka program, a mental health program that he undertook at Ravenhall Prison between October 2019 and January 2020:
He said it was a useful program and he was taught different techniques to manage his emotions and frustrations, to not self-harm, and that he has been able to successfully use the techniques. He said he tries not to let frustrations get to him and he knows it does not help to keep them inside him. Now he tries and talks to the person who frustrates him, to see the issue from their point of view, then takes himself away or engages in intense exercise. He said this is working for him, that before the Moroka program he was having disputes nearly every day but now he has had no recent disputes and has been able to maintain his improvement.
The Panel set out what Mr Edwards told them about his current circumstances:
He said his mood is pretty good, that he is not depressed but that he just genuinely does not like his life. He said he has been a big disappointment to his family and the people who have been good to him, particularly his Nan. He said he has done nothing positive with his life. He said he is currently waiting for a committal hearing for charges including home invasion, rape, assault and the theft of a phone. He said there is nothing he can change about these charges and he has to go with it the best that he can.
He said he has not engaged in self-harming behaviour since early 2017 when he cut his neck and left wrist and required surgery. He said he sleeps well, which is helped by the antidepressant mirtazapine 45 mg at night, and that he tends not to dream or have nightmares. He said he overeats through boredom and that he enjoys his food. He goes to the gym every day to try and help his weight. He said his memory is not too good and that his concentration depends on what he is doing. He can concentrate on watching sports, doing art, reading a book or watching a movie.
The history taken by the Panel also included Mr Edwards’ descriptions of his drug and alcohol use, his childhood both when he lived with his parents and after the Department of Human Services intervened, and his current relationships. The Panel then set out its observations of the mental state examination it conducted during the interview.
Under the heading ‘Diagnosis’, the Panel said:
The Panel concluded that Mr Edwards is suffering from complex post-traumatic stress disorder and major depressive disorder, currently in remission. Notwithstanding the recent psychological treatment he has received in the Moroka unit, the Panel considers his psychiatric condition has stabilised.
The Panel turned to the psychiatric impairment assessment it had conducted in accordance with ‘The Guide to the Evaluation of Psychiatric Impairment for Clinicians’ (GEPIC), as required by s 28LI of the Wrongs Act. It said that it took into account Mr Edwards’ history and referral material to determine the level of impairment present prior to the incident, which it was obliged by s 28LL(3) to disregard as impairment from unrelated causes or injuries. It was positively satisfied that he had pre-existing impairment, and noted that it was required to ‘do its best to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the (claimant’s) current impairment’.[2]
[2]Citing Lingenberg v Gallichio (2013) 40 VR 60, [29].
On the question referred to it, the Panel’s conclusion was:
The Panel concluded that the degree of impairment resulting from the psychiatric injury to Mr Edwards alleged in the claim is permanent, is not 10% or more and does not satisfy the threshold level as prescribed by Section 28LB of the [Wrongs Act] as amended.
The Panel considers that it has assessed the psychiatric impairment arising from Mr Edwards’ psychiatric injury alleged in the claim in accordance with GEPIC and considers that further explanation or detailed reasons of the basis on which it has calculated impairment is prohibited by Section 28LZG (4) of the [Wrongs Act].
Relevant provisions
Part VBA of the Wrongs Act applies to claims for the recovery of damages for non-economic loss, with exceptions as provided in s 28LC. Section 28LE provides that a person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
The term ‘significant injury’ is defined in s 28LF. Section 28LF(2) provides that a psychiatric injury is a significant injury if:
(a) the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(b) a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level.
The assessment of degree of impairment must be made by an approved medical practitioner,[3] in accordance with the AMA Guides.[4] For the purposes of assessing the degree of psychiatric impairment, the AMA Guides apply, subject to any regulations, as if GEPIC were substituted for Chapter 14 of the AMA Guides.[5] Section 28LL(3) directs that impairments from unrelated injuries or causes are to be disregarded in making an assessment.
[3]Wrongs Act 1958 (Vic), s 28LG.
[4]Wrongs Act, s 28LH. The term ‘AMA Guides’ is defined in s 28LB to mean the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under Part VBA.
[5]Wrongs Act, s 28LI(1).
A certificate of assessment under s 28LN must be served on a respondent - that is, the person against whom the claim is made - together with information about the claimant, the nature of the claim, the injury, and the incident out of which the alleged injury arose.[6] The respondent must respond in writing within 60 days.[7] If the respondent disputes the assessment, it may refer a medical question in relation to the assessment to a Medical Panel for determination under Pt VBA.[8]
[6]Wrongs Act, s 28LT.
[7]Wrongs Act, s 28LW(1).
[8]Wrongs Act, ss 28LW(2)(b), 28LWE.
Medical Panels are constituted under s 537 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) as necessary for the purposes of the WIRC Act, the Accident Compensation Act 1985 (Vic), and Pt VBA of the Wrongs Act. From a list of medical practitioners appointed by the Governor in Council, a Convenor is appointed,[9] who may convene and constitute a Medical Panel appropriate to each particular case.[10]
[9]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act), ss 537(2), (3)(a).
[10]WIRC Act, s 537(7).
It is settled that the function of a Medical Panel is neither arbitral nor adjudicative; it is ‘to form and to give its own opinion on the medical question referred for its opinion’.[11] Under Pt VBA of the Wrongs Act, the ‘medical question’ is invariably ‘a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level’.[12]
[11]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [47]; Colquhoun v Capital Radiology Pty Ltd (2013) 39 VR 296, [14]-[16], [18]; Maimonis v Bourke [2019] VSCA 302, [51](1).
[12]Wrongs Act, s 28LB – definition of ‘medical question’.
Division 5 of Pt VBA of the Wrongs Act provides for the powers and procedures of a Medical Panel in relation to a medical question referred to it under Pt VBA. Section 28LZ provides:
Procedure of Medical Panel
(1) A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.
(2) A Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
(3) The Minister, after consultation with the Minister administering Part 12 of the Workplace Injury Rehabilitation and Compensation Act 2013, may for the purposes of—
(a) ensuring procedural fairness in the procedures of Medical Panels under this Part; and
(b) facilitating the proper administration of the Medical Panels under this Part—
issue guidelines as to the procedures of Medical Panels under this Part.
(4) The Convenor may give directions as to the procedures of Medical Panels under this Part but must not give directions inconsistent with any guidelines issued by the Minister under this Part.
…
Section 28LZA obliges a respondent to provide certain information to a Medical Panel:
Respondent must provide information to Medical Panel
(1) A respondent referring a medical question to a Medical Panel must submit to the Medical Panel—
(a) a notice in writing and in the prescribed form (if any) setting out—
(i) the medical question; and
(ii) any other prescribed information; and
(b) a copy of any relevant certificate of assessment served on the respondent by the claimant under section 28LT.
(2) The Convenor may, in writing, request the respondent to provide to the Medical Panel any specified document or documents of a specified class in the respondent's possession.
(2A) More than one request may be made under subsection (2).
(2B) The respondent must comply with any request under subsection (2).
(3) The Medical Panel may refuse to proceed to consider a medical question if it is not provided with the documents required under subsection (1) or requested under subsection (2).
…
A Medical Panel may ask a claimant to meet with the Panel and answer questions, supply copies of relevant documents in the claimant’s possession, and submit to a medical examination by the Panel.[13] With the consent of the claimant, a Medical Panel may also require a registered health practitioner who has examined the claimant to meet with the Panel and answer questions, and supply relevant documents to the Panel.[14] Information given to a Medical Panel cannot be used in any civil or criminal proceeding in any court, other than a proceeding relating to the claim for which the determination is sought, or a related criminal proceeding.[15]
[13]Wrongs Act, s 28LZC(1).
[14]Wrongs Act, s 28LZE(1).
[15]Wrongs Act, s 28LZF.
The determination of a Medical Panel must be given in accordance with s 28LZG. Section 28LZG(6) allows a Panel to fix a time for a further assessment if it is unable to determine the medical question because the injury has not stabilised and the Panel is not satisfied that the degree of impairment will satisfy the threshold once it has stabilised.
A determination by the Medical Panel that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of Pt VBA of the Wrongs Act.[16] Conversely, a determination that the degree of impairment does not satisfy the threshold level must be accepted as a determination that the injury is not a significant injury.[17]
[16]Wrongs Act, s 28LZH(1).
[17]Wrongs Act, s 28LZH(2).
Grounds of review
As mentioned, Mr Edwards contended that the Panel failed to obtain his up to date medical records before reaching its determination and failed to have regard to his history of self-harm after early 2017. He argued that these two essential failings resulted in jurisdictional error in the formation of the Panel’s determination, in several respects. The grounds of review set out in the amended originating motion, in the order that they are addressed in this judgment, claimed that:
(a) the Panel made a mistake on central facts of his psychiatric history, which amounted to a constructive failure to perform its statutory function;
(b) the Panel failed to take into account a mandatory consideration, being Mr Edwards’ self-harm and suicide attempts since 2017;
(c) the Panel failed to properly discharge its statutory function by failing to obtain Mr Edwards’ up to date medical records;
(d) the Panel failed to properly apply the AMA Guides and GEPIC; and
(e) the Panel failed to accord procedural fairness to Mr Edwards, by making an unexpected and new finding about his psychiatric condition, without informing him of its proposed finding and giving him an opportunity to respond.
I address each of these grounds in turn below.
Did the Panel make a mistake on a central fact?
Mr Edwards took issue with the Panel’s statement that ‘he said that he has not engaged in self-harming behaviour since early 2017 when he cut his neck and left wrist and required surgery’.[18] In an affidavit sworn on 27 January 2021, he said that was not what he told the Panel. He submitted that it was also not consistent with the medical records provided to the Panel, or with the up to date medical records which it could have obtained on request. He argued that this was a critical mistake of fact for the Panel to have made, and was material to the formation of its opinion that his psychiatric condition was in remission.
[18]Panel’s reasons, 4.
Mr Edwards submitted that this mistake of fact was so fundamental that it amounted to a constructive failure to perform the Panel’s statutory function, which was to determine the nature and extent of his psychiatric condition, and the extent to which it could be related to his detention in the Charlotte Unit. He relied on the analysis of the Court of Appeal in Chang v Neill,[19] as to when a factual error amounts to a jurisdictional error.
[19]Chang v Neill (2019) 62 VR 174, [92].
The State disputed that the Panel had made a factual error. Even if it had, the State argued that the error did not amount to jurisdictional error, and was not material to the outcome. It emphasised that the impugned statement was not a finding of the Panel, but part of the narrative of the history taken from Mr Edwards by the Panel. It pointed out that the Panel was well aware that Mr Edwards had required treatment to avoid self-harming behaviour, through his participation in the Moroka program. On that basis, it said that it was clear that the Panel was, at the time of its examination, conscious of Mr Edwards’ ongoing behavioural difficulties, including his potential for self-harming thoughts and behaviour.
Further, the State argued that Mr Edwards’ argument overstated the importance of his recent self-harming behaviour to the overall assessment made by the Panel. Its assessment was informed by a range of factual matters, including the mental state examination conducted by the Panel, the nature, severity and history of Mr Edwards’ psychiatric conditions, and the numerous contributors to his mental state. Any recent self-harming behaviour was but one of a myriad of factors that might have affected the Panel’s assessment. Even if the Panel was mistaken, the mistake was not critical to the performance of its statutory function, and was unlikely to have affected its assessment.
Consideration
In Chang v Neill, the Court of Appeal explained that ‘a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker’:[20]
Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.
[20]Chang v Neill, [92].
While accepting the role of materiality in informing whether an error is jurisdictional,[21] the Court of Appeal pointed out that the additional requirement of materiality is unlikely to make much difference in practice in relation to this kind of jurisdictional error. That is because:[22]
… an error in relation to a factual matter, consideration of which is an essential feature of a valid exercise of the relevant statutory function, will usually satisfy the materiality requirement.
[21]Chang v Neill, [94]-[100], discussing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [29]-[31] (Kiefel CJ, Gageler and Keane JJ), [72] (Edelman J) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45]–[48] (Bell, Gageler and Keane JJ), [84]–[95] (Nettle and Gordon JJ).
[22]Chang v Neill, [100].
The Panel’s statutory function was to determine the medical question as to whether the degree of impairment resulting from injury to Mr Edwards alleged in the claim satisfies the threshold level. In the tort proceeding, Mr Edwards pleaded that he had suffered ‘Psychological injury, exacerbation of persistent depressive disorder with anxious distress and Major Depression with anxious features with mood congruent psychotic features; emotional distress’.[23] This was clearly based on Dr Serry’s report and certificate of assessment. The Panel’s own diagnosis was that Mr Edwards was suffering from complex post-traumatic stress disorder and major depressive disorder, currently in remission.
[23]Amended statement of claim filed 12 August 2019, [57].
Given the issues raised by the medical question referred to the Panel, it was essential for it to have an accurate picture of Mr Edwards’ self-harming behaviour and suicidal ideation over time in order to form an opinion about his current psychiatric condition, and the degree to which it resulted from his 2012 incarceration in the Charlotte Unit. To put it another way, if the Panel made its assessment based on a fundamentally wrong understanding of the extent of Mr Edwards’ self-harm, it failed to perform its statutory task. It is not really to the point that the Panel’s assessment was informed by a myriad of other factual matters. This particular matter was unquestionably an important part of the Panel’s overall assessment, along with the other matters referred to by the State.
There are four references to self-harming behaviour in the Panel’s reasons:
(a) First, the Panel recorded Mr Edwards’ history that he ‘kicked into depression’ when he went to Port Phillip Prison aged 16, and started self-harming, which he had not previously done;
(b) Second, the Panel noted that, during the Moroka program between October 2019 and January 2020, he was taught different techniques to manage his emotions and frustrations and not self-harm;
(c) Next, the Panel recorded him saying that he had not engaged in self-harming behaviour since early 2017, when he cut his neck and left wrist and required surgery; and
(d) Finally, the Panel’s mental state examination noted no suicidal ideation or thoughts of self-harm.
Mr Edwards’ evidence was that he did not tell the Panel that he had not engaged in self-harming behaviour since early 2017. He said in his affidavit sworn on 27 January 2021 that he would not have said that, because he had attempted suicide in 2019 and also did a lot of self-harm that year. He went on to say that he had not stopped self-harming, and that would have been the case when he saw the Panel. He was not cross-examined on his affidavit.
The State submitted that Mr Edwards’ evidence was contrary to the notes taken by both members of the Panel during their examination. A copy of those notes was in evidence, as was a transcription. Dr Cronin’s notes read:
Not self harmed recently – last time before Moroka, cut neck + L wrist – required surgery.
Dr Grant’s notes read:
Last deliberate self harm was before Moroka – neck cuts
Left wrist - surgery
The Panel’s notes are entirely consistent with Mr Edwards’ evidence that he did not tell the Panel that he last self-harmed in early 2017. Neither Panel member’s notes record that date, or any date. Rather, they record him saying that he had last self-harmed before the Moroka program, and referring to cuts to his neck and left wrist, requiring surgery.
It is possible, as the State submitted, that the Panel inferred from the records provided to it that Mr Edwards was referring to an episode of self-harm that occurred in January 2017. Dr Serry’s report of 16 February 2018 referred to Mr Edwards requiring surgery after a suicide attempt apparently in early 2017. Justice Health medical records from January 2017 note an occasion when Mr Edwards lacerated his neck, left wrist and forearm, requiring prompt treatment and transfer to the St Vincent’s emergency department for assessment and surgery.
However, this would have been an irrational inference for the Panel to draw. That is because there were many more recent instances of self-harm recorded in the Justice Health material provided to the Panel. Mr Edwards was noted to have hurt himself on a number of occasions during 2019. Most seriously, on 19 April 2019, he made a deep cut on his left forearm, and swallowed a razor blade.[24] He was transferred to hospital, where he remained for a fortnight. He was recommended for the Moroka program due to his ‘well-established pattern of self-harm behaviour’.[25]
[24]Justice Health record entry for 19 April 2019; Correct Care Australasia Transfer to Hospital Information Summary dated 19 April 2019.
[25]Justice Health record entry for 4 July 2019.
The Panel’s understanding that Mr Edwards had not self-harmed since early 2017 was plainly wrong. It is not what he told the Panel, both on his own account, and according to the notes taken by both Panel members. It was also contrary to the medical records provided to the Panel, which noted multiple instances of self-harm while Mr Edwards was in custody during 2019.
I conclude that the Panel made an error in relation to a factual matter, consideration of which was an essential feature of its statutory function. I have no difficulty finding that the error was material, in the sense that there was a realistic possibility that the Panel’s assessment could have been different, if it had understood that Mr Edwards had self-harmed much more recently than early 2017.[26] The Panel’s factual error was a jurisdictional error.
[26]MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, [2]-[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
Did the Panel fail to consider an accurate record of self-harm and suicide attempts?
Relatedly, Mr Edwards contended that the Panel was obliged to have regard to an accurate history of his self-harm and suicide attempts, and failed to do so. He relied on authorities to the effect that a Medical Panel is bound to have regard to the referral material in order to form its opinion, and take account of any fundamental issue arising from that material.[27] He submitted that, in order to properly discharge its function, the Panel had to review and genuinely consider the contents of those records. In particular, a mandatory consideration for the Panel was the nature and extent of his self-harm and suicidal ideation as recorded in the medical records provided to it with the referral.
[27]Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [60]; Omerasevic v Kotzman [2016] VSC 383, [97].
Mr Edwards acknowledged that the Panel’s reasons stated that it had formed its opinion with regard to the documents and information referred to in Enclosure A. However, he submitted that I should infer from the total absence of any reference to crucial material in the medical records, including episodes of self-harm since 2017, that the Panel had not genuinely engaged with their contents.[28] Given his known low intellectual functioning and memory difficulties, it was especially incumbent on the Panel to consider the medical records, and not rely solely on his oral history.
[28]Relying on Combined Enterprises Pty Ltd v Brister [2016] VSC 807, [27].
The State argued that this submission elided two distinct concepts: factual matters and relevant considerations. It relied on the observation of the Court of Appeal in Chang v Neill that a ‘”relevant consideration” in the Peko-Wallsend sense is usually expressed at a significantly higher level of generality than a factual matter’.[29] It said that evidence of self-harm in the available medical records was a source of evidence that might inform a relevant consideration, and was not to be conflated with the relevant consideration itself.
[29]Chang v Neill, [71] (citation omitted). See also [72]-[73].
In the alternative, the State submitted that if Mr Edwards’ self-harming was a mandatory consideration for the Panel, it took that consideration into account. It pointed to indications in the Panel’s reasons that it had asked Mr Edwards about his history of self-harming behaviour and the reasons for it, as well as his recent treatment and participation in the Moroka program, and had considered evidence of suicidal ideation and thoughts of self-harm in its own mental state examination.
The State argued against drawing any inference that the Panel had ignored the references to self-harm since early 2017 in the medical records given to it. It relied on the Panel’s statement that it had regard to the information and documents in Enclosure A. It identified that the Panel had referred to an entry in the Justice Health medical records from 7 July 2012, noting a history of auditory hallucinations that was relevant to unrelated injuries or causes.
More generally, the State emphasised that the Panel’s reasons should be read fairly, as a whole, and in context.[30] It submitted that the Court should be especially careful about drawing adverse inferences from the Panel’s reasons in circumstances where the Panel was under no legal obligation to give reasons.[31]
[30]Relying on Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29] and Devaney v Crown Melbourne Ltd [2020] VSC 594, [29].
[31]Relying on Colquhoun, [14]-[21].
Consideration
The argument for Mr Edwards was not that the Panel had failed to have regard to one or two clinical entries in his medical records; it was that the Panel failed to have regard to ‘the entire lot’. The State did not really engage with this argument. I do not agree that the argument conflated the two concepts of factual errors and relevant considerations. Mr Edwards relied on established authority to the effect that a Panel is obliged to have regard to the referral material for the purpose of determining the fundamental issues that will enable it to answer the referred question, and deal with those fundamental issues.[32] This argument was separate from and additional to his complaint that the Panel made a factual error about an essential matter.
[32]Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [60]; Omerasevic v Kotzman [2016] VSC 383, [97].
As I have said previously,[33] I would ordinarily accept at face value a Medical Panel’s statement that it had regard to all of the information and documents provided to it with the referral.[34] A Medical Panel need not refer in its reasons to every piece of evidence and every medical opinion in the referral material.[35] However, a mere assertion that the material was taken into account is not always enough; some matters are so significant that a Medical Panel’s failure to refer to them indicates that they were disregarded.[36]
[33]See, eg, Withers v Chalmers Industries Pty Ltd [2020] VSC 635, [44].
[34]Maribyrnong City Council v Malios [2014] VSC 452, [48]; Vellios Electrical Contactors Pty Ltd v Barton [2014] VSC 664, [83].
[35]Vellios, [78]-[79].
[36]Combined Enterprises, [27].
Here, the Panel said that it formed its opinion with regard to the information and documents in Enclosure A. However, there is no reference at all in the Panel’s reasons to any of Mr Edwards’ medical records after he left the Charlotte Unit in October 2012. This is a glaring omission, given the question referred to the Panel, the issues raised in the State’s written submissions, and the determination it reached. The omission, together with the factual error that the Panel made in relation to Mr Edwards’ own history of self-harm, leads me to infer that the Panel did not have regard to the medical records provided to it. Although I have been careful to read the Panel’s reasons beneficially, without searching for error, I am satisfied that it did not genuinely engage with the medical records. If it had, it could not have understood Mr Edwards to be saying that he last self-harmed in early 2017.
I do not accept that the Panel’s reasons should somehow be read differently because they were provided voluntarily. Unlike the WIRC Act,[37] the Wrongs Act does not oblige a Medical Panel to give a written statement for its reasons.[38] However, a Medical Panel is a ‘tribunal’ for the purposes of the Administrative Law Act 1978 (Vic), and must furnish a statement of reasons for a determination in response to a request made under s 8 of that Act.[39] Perhaps for that reason, Medical Panels convened to determine a question referred under Pt VBA of the Wrongs Act often provide a written statement of reasons – as the Panel did in this case. When provided, a statement of reasons provides an explanation of the Panel’s path of reasoning to its determination, and a basis for a reviewing court to determine whether the determination was affected by jurisdictional error.[40] The Panel’s reasons here provide a sufficient basis for concluding that it failed to have regard to a substantial part of the referral material, and the fundamental issue of Mr Edwards’ history of self-harm that arises from that material.
[37]WIRC Act, s 313(2).
[38]Colquhoun, [42]-[44].
[39]Masters v McCubbery [1996] 1 VR 635, 651 (Winneke P); Ingle v Australian Pacific Airports (Melbourne) Pty Ltd [2021] VSC 50, [24].
[40]East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, [228] (Ashley and Redlich JJ). In the context of a Medical Panel determination under Pt VBA of the Wrongs Act, see, eg, La’Brooy v Jensen [2021] VSC 80, [56], [68]-[79].
Should the Panel have requested up to date medical records?
Mr Edwards took issue with the Panel’s conclusion that his psychiatric disorders were ‘currently in remission’, when it did not have any medical records for the period between September 2019 and April 2020. He contended that the proper exercise of the Panel’s statutory function required it to request his up to date medical records. More particularly, he argued that the Panel should have asked for his medical records spanning and post-dating his participation in the Moroka program, rather than forming an opinion about the effectiveness of the program based only on the history it took from him.
This submission was based on the proposition that a Medical Panel convened to determine a medical question under Pt VBA of the Wrongs Act is not merely a passive body that cannot go beyond the material submitted to it, cannot disregard deficiencies in the material available to it and proceed to reach an opinion that is not informed, and is empowered by the Wrongs Act to obtain the information it needs to provide an informed determination. Mr Edwards relied on authorities to that effect in relation to Medical Panels convened under the WIRC Act,[41] and the provisions of Pt VBA that enable a Panel to request further information.
[41]Chang v Neill, [50]-[53]; Schmael v Leach [2020] VSC 562, [38], [42].
Mr Edwards submitted that it was unreasonable of the Panel to form an opinion that his condition was in remission, without first having obtained his up to date medical records from Justice Health. He said that the omission was material, because the records showed that he had continued to self-harm despite his recent treatment.
The State disputed the proposition that a Medical Panel performing functions under Pt VBA of the Wrongs Act has a duty to seek further information if there is some deficiency in the material provided to it. It drew attention to the differences between s 28LZA of the Wrongs Act and s 312 of the WIRC Act. It submitted that, unlike s 312 of the WIRC Act, s 28LZA does not empower a Panel to request more information to fill a gap in the material before it. It drew on the legislative history of s 28LZA to characterise it as a provision governing the commencement of a referral to a Medical Panel, rather than an information gathering provision.
Further, the State argued that the Panel could not have been under any duty to make further inquiries, because there was no ‘obvious’ or ‘critical’ issue that any further medical records were likely to address. The Panel already had ample material on which to base its assessment. It pointed out that Mr Edwards was legally represented throughout, and that his solicitors could have provided the Panel with the additional records. The State also submitted that there was nothing in the Justice Health records between September 2019 and April 2020 that could realistically have altered the Panel’s opinion. The further incidents of self-harm disclosed in those records were relatively minor, and were consistent with the Panel’s opinion that Mr Edwards’ condition was in remission.
Consideration
Section 28LZA of the Wrongs Act does not use the same words as s 312 of the WIRC Act. In particular, the power to request information from a respondent is reposed in the Convenor, rather than a Medical Panel, and is not premised on the Panel considering that ‘further information is required to enable it to form a medical opinion on the question’.[42] I accept that s 28LZA of the Wrongs Act is concerned primarily with the information that must be provided by a respondent on referring a medical question to a Medical Panel. This is confirmed by the legislative history of s 28LZA.
[42]WIRC Act, s 312(1).
As originally enacted in 2003, s 28LZA provided:
Respondent must provide information to Medical Panel
(1) A respondent referring a medical question to a Medical Panel must submit to the Medical Panel—
(a) a notice in writing setting out—
(i) the medical question; and
(ii) any other prescribed information; and
(b) a copy of any relevant certificate of assessment served on the respondent by the claimant under section 28LT.
(2) A respondent referring a medical question to a Medical Panel must submit to the Panel copies of all documents in the possession of that respondent that relate to the medical question.
(3) The Medical Panel may refuse to proceed to consider a medical question if it is not provided with the required documents under this section.
(4) If the respondent fails to provide the Medical Panel with the required documents within 30 days after being requested in writing to do so by the Convenor, the respondent is deemed to have accepted the assessment in the certificate of assessment.
(5) The Convenor must notify the claimant in writing within 7 days of a deemed acceptance under sub-section (4).
Later in 2003, s 28LZA was amended to delete sub-s (2), and replace it with sub-ss (2), (2A) and (2B) in their current form.[43] The explanatory memorandum for the Wrongs and Other Acts (Law of Negligence) Bill 2003 (Vic) said that this amendment was to ‘clarify the categories of documents that a respondent is required to provide to a Medical Panel on referring a medical question to that Medical Panel’. It elaborated further:
The existing sub-section requires a respondent that has referred a medical question to a Medical Panel to provide to the Medical Panel all documents in the respondent’s possession that relate to the medical question. The new sub-sections restrict the information that the respondent is required to submit to the Medical Panel, the documents specified, or a class of documents specified, by the Convenor that are in the respondent’s possession.
[43]Set out at [26] above.
While s 28LZA governs the information to be provided by a respondent to a Medical Panel with a referral, that is not its only function. It also enables the Convenor to make further requests for information to be provided to the Panel. There is no temporal limitation on these additional requests. Section 28LZA provides a mechanism for a Medical Panel to obtain further information from a respondent at any time before it makes its determination. Reading s 28LZA as a whole, and in its context, it appears that a request made by the Convenor under s 28LZA(2) is made on behalf of ‘the Medical Panel’ that has been constituted to consider the medical question. This reading is reinforced by s 28LZA(3), which provides that ‘the Medical Panel’ may refuse to proceed to consider the question if it is not provided with information required under sub-s (2).
It follows that I do not accept the suggestion made by the State that s 28LZA is no more than a preliminary, gatekeeping process to be undertaken by the Convenor when a referral is first received. Although s 28LZA is framed differently from the equivalent provision in the WIRC Act, it can be used to require a respondent to provide further information at any stage of a referral. If in March 2020 the Convenor had requested the State to provide Mr Edwards’ up to date Justice Health medical records, the State would no doubt have complied with the request.
Moreover, s 28LZA is not the only information gathering power given to Medical Panels under Pt VBA of the Wrongs Act. A Medical Panel is empowered by s 28LZ(1) to ‘inform itself on any matter relating to a reference in any manner it thinks fit’. In addition to s 28LZA(2), a Medical Panel may:
(a) under s 28LZC, ask a claimant to meet with the Panel and answer questions, to supply to the Panel copies of all documents in the possession of the claimant that relate to the medical question, and to submit to a medical examination by the Panel; and
(b) under s 28LZE, ask a registered health practitioner who has examined the claimant to meet with the Panel and answer questions, and supply relevant documents to the Panel, if the claimant consents.
In addition, as discussed below,[44] a Medical Panel is required to assess a claimant’s degree of psychiatric impairment in accordance with the AMA Guides and GEPIC, both of which require an assessor to consider the whole history of the person to be assessed. The information gathering powers given to Medical Panels by ss 28LZA, 28LZC and 28LZE are aids to the proper application of the AMA Guides and GEPIC.
[44]See [76]-[78], [82] below.
The function of a Medical Panel under Pt VBA of the Wrongs Act is essentially the same as the function of a Medical Panel under the WIRC Act: to provide an informed professional opinion in answer to a medical question referred to it.[45] Like the WIRC Act, the Wrongs Act gives information gathering powers to a Medical Panel that enable it to inform itself as it thinks fit. Those powers, including the power in s 28LZA(2) to seek further information from a respondent, are integral components of a Medical Panel’s function of giving an informed medical opinion.
[45]Colquhoun, [18]; Chang v Neill, [49]-[50].
The function of a Medical Panel must be performed within the bounds of legal reasonableness, and an opinion or determination formed outside those bounds is beyond the Panel’s jurisdiction.[46] One form of legal unreasonableness is making a decision without attempting to obtain information that it is obvious is readily available and centrally relevant to the decision to be made.[47] Legal reasonableness also governs the powers of a Medical Panel to inform itself in order to perform its function. In circumstances where it is apparent that there is additional information that can easily be obtained about matters critical to its opinion, a Panel cannot disregard deficiencies in the material that it already has, and proceed to reach an opinion that is not informed.[48]
[46]Sidiqi v Kotsios [2021] VSCA 187, [52]-[60].
[47]Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 170; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, [49] (Nettle J); Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15, [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[48]Chang v Neill, [50].
I have already determined that Mr Edwards’ history of self-harming behaviour and suicidal ideation over time was an essential feature of the Panel’s statutory function of forming an opinion about his current psychiatric condition, and the degree to which it resulted from his 2012 incarceration in the Charlotte Unit. Mr Edwards’ long history of self-harm was a fundamental issue that arose from the material provided to the Panel with the referral. His answers to the Panel’s questions during the box visit on 17 March 2020 indicated that he had found the Moroka program beneficial, and had not harmed himself since commencing that program in October 2019. However, the Panel was (or should have been) aware that Mr Edwards’ cognitive functioning is borderline impaired, and that he is a poor historian.[49] His history alone was not a firm basis for the Panel to reach an informed opinion about his current psychiatric condition.
[49]These matters were noted in the reports of Izabella Walters, clinical neuropsychologist, dated 15 June 2012 and Professor James Ogloff, dated 5 October 2012, both of which were provided to the Panel, and were highlighted in the State’s written submissions to the Panel, at [14], [41].
Other information, including about Mr Edwards’ self-harming behaviour and suicidal ideation, was readily available to the Panel, if only it had asked. Mr Edwards was admitted to the Moroka program on 18 September 2019 and remained there until his discharge on 16 March 2020, the day before his examination by the Panel. The medical records kept by Justice Health during that period provide a detailed picture of Mr Edwards’ mental state over that time. They include notes taken by the psychologist who saw him for regular individual treatment sessions throughout his admission. They also record that he had reported thoughts of hurting himself on a number of occasions,[50] and two incidents of self-harm on 7 January 2020 and 7 February 2020. On the first occasion he had a bruised left eye and temple after punching himself in the head. On the second occasion he broke a plastic ruler and used the sharp edge to cut his left wrist. These records could have been a rich source of information for the Panel in the formation of its opinion. Without them, its opinion was not an informed one.
[50]See especially Justice Health record entries for 9 December 2019, 20 December 2019, 26 December 2019, 7 January 2020, 28 January 2020 and 28 February 2020.
Having read through these notes for myself, I am satisfied that there was a realistic possibility that the Panel could have reached a different conclusion if it had considered Mr Edwards’ medical records for the six months prior to its examination. I reject the State’s submission that the Panel’s failure to obtain the notes was not material to the outcome.
I conclude that the Panel failed to perform its statutory function of providing an informed determination of the medical question referred to it, because it did not obtain Mr Edwards’ most recent medical records, which were both readily available and centrally relevant to its determination. The failure was material, because the records could have affected the determination reached by the Panel.
Did the Panel properly apply the AMA Guides and GEPIC?
An assessment of the degree of psychiatric impairment for the purposes of Pt VBA of the Wrongs Act must be made in accordance with the AMA Guides and GEPIC.[51] While the degree of impairment is a question of fact for the Panel to determine, the proper application of the AMA Guides and GEPIC is a question of law.[52]
[51]Wrongs Act, ss 28LH and s 28LI(1). See [21] above.
[52]HJ Heinz Company Australia Pty Ltd v Kotzman [2009] VSC 311, [24], applied in relation to GEPIC in YG-1 Australia Pty Ltd vBrann [2016] VSC 713, [54].
Both the AMA Guides and GEPIC emphasise the importance of considering the whole range of factors that bear on an individual impairment assessment. Chapter 2 of the AMA Guides identifies information gathering as the first step in an assessment:[53]
According to the Guides, the first step in assessing an individual’s impairment is gathering thorough and complete historical information on the medical condition(s) and then carrying out a medical evaluation supported by appropriate tests and diagnostic procedures.
A proper medical evaluation accurately documents the individual’s clinical status. If the current findings are consistent with the results of previous clinical evaluations, the findings may be compared with the appropriate Guides tables to estimate the individual’s impairment. If the current findings do not agree with the recorded information, there should be further clinical evaluation to resolve the disparities.
[53]AMA Guides, Chapter 2, [2.1].
GEPIC provides five principles to guide the assessment of psychiatric impairment:
The assessment of psychiatric impairment is based on the systematic application of empirical criteria, and takes into consideration both the diagnosis and other factors unique to the individual. It is also relevant to consider motivation, and to review the history of the illness, as well as the treatment and rehabilitation methods. These considerations can be summarised in the following five principles:
Principle 1:
In assessing the impairment that results from any mental or physical disorder, readily observable empirical criteria must be applied accurately. The mental state examination, as used by consultant psychiatrists, is the prime method of evaluating psychiatric impairment.
Principle 2:
Diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is by no means the sole criterion.
Principle 3:
The evaluation of psychiatric impairment requires that consideration be also given to a number of other factors including, but not limited to, level of functioning, educational, financial, social and family situation.
Principle 4:
The underlying character and value system of the individual is of considerable importance in the outcome of the disorder, be it mental or physical. Motivation for improvement is a key factor in the outcome.
Principle 5:
A careful review must be made of the treatment and rehabilitation methods that have been applied or are being used. No final judgement can be made until the whole history of the illness, the treatment, the rehabilitation phase, and the individual’s current mental and physical status and behaviour have been considered.
Mr Edwards argued that the Panel’s failure to obtain his up to date medical records, and its failure to consider an accurate record of his self-harming behaviour and suicidal ideation, also involved a failure to assess his degree of impairment in accordance with the AMA Guides and GEPIC. He directed particular attention to Principle 5 in GEPIC, and said that the Panel’s failure to obtain his most recent Justice Health records meant that it did not have the whole history of his illness, treatment, rehabilitation, and current mental status and behaviour. As a result, he argued, the Panel was not in a position to make a final judgment in accordance with GEPIC.
The State submitted that the Panel had done what was required of it by the AMA Guides and the principles set out in GEPIC. As required by Principle 1, it had used its mental state examination as the prime method of evaluating psychiatric impairment. The Panel also took a thorough history from Mr Edwards, and considered the reports and medical records provided to it.
The State contrasted this case with the case of HJ Heinz Company Australia Pty Ltd v Kotzman.[54] In that case, the Panel had adopted an alternative methodology for arriving at a combined whole person impairment that had no basis in the AMA Guides. In this case, Mr Edwards relied on introductory passages from the AMA Guides and GEPIC, ‘each of which indicate in broad, general terms the need to consider the history of the relevant injury alongside its current presentment’.[55] The State submitted that the Panel was not empowered to conduct an inquiry, and was generally entitled to rely on the medical reports and records provided to it by the claimant and respondent.[56] It argued that a Panel that is satisfied of the sufficiency of the material before it can be taken to be acting in accordance with the AMA Guides and GEPIC.
[54][2009] VSC 311.
[55]First defendant’s submissions dated 20 May 2021, [47].
[56]Relying on Chang v Neill, [49], [54], [61]-[62].
Consideration
Both the AMA Guides and GEPIC stipulate that, in assessing the degree of psychiatric impairment, an assessor needs to consider the claimant’s whole history and treatment, in addition to the claimant’s current presentation. As the State submitted, the passages relied on by Mr Edwards are broad, general statements of the approach to be taken by an assessor. Their breadth and generality does not detract from their importance; it is fundamental that an impairment assessment should be properly informed. The statements are entirely consistent with the function of a Medical Panel to provide an informed professional opinion in relation to the medical question referred to it.[57]
[57]Chang v Neill, [49]-[50].
As I have already found, the Panel’s understanding of Mr Edwards’ history of self-harm was wrong in an essential respect, it did not engage with the extensive medical records it had been given, and it failed to obtain his most recent medical records to complete the picture. Each of these failings was a separate jurisdictional error. Together, they amounted to a failure to gather ‘thorough and complete historical information’ on Mr Edwards’ psychiatric condition, as required by the AMA Guides, and a failure to consider ‘the whole history’ of his illness, treatment, rehabilitation, and current mental status and behaviour, as required by Principle 5 in GEPIC. I conclude that the Panel did not assess Mr Edwards’ degree of impairment in accordance with the AMA Guides and GEPIC. This is an additional error of law that affected the Panel’s determination.
Was the Panel procedurally unfair?
As noted, the Panel concluded that Mr Edwards’ psychiatric disorders were currently in remission and, notwithstanding his recent treatment in the Moroka unit, his psychiatric condition had stabilised. Mr Edwards relied on authorities to the effect that, while a Medical Panel is convened to form its own opinion, it is also obliged to give a party a fair opportunity to be heard if its opinion is new, different, or could not reasonably have been anticipated.[58] He contended that the Panel’s conclusion that his condition was in remission was new, different, unable to be anticipated, and not obviously open on the known materials – it was truly ‘out of the blue’.[59]
[58]Calleja v Franet Pty Ltd [2000] VSC 339, [13]-[15]; Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [31]-[37]; North v Homolka [2014] VSC 478, [104]; Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [40].
[59]Barrett Burston, [48].
Mr Edwards submitted that the Panel should have put the parties on notice of its proposed finding. Had it done so, he would have been able to clarify the extent of his ongoing self-harming behaviour, make submissions to the Panel directing its attention to relevant parts of the medical records it had in its possession, alert it to the need to exercise its powers to obtain up to date medical records, and obtain and provide further medical opinion, such as a supplementary report of Dr Serry. He argued that it was ‘quite plausible’ that the Panel might have reached a different opinion if he had been given the opportunity to take these steps.[60]
[60]Wagstaff, [66].
The State accepted that a Medical Panel exercising functions under Pt VBA of the Wrongs Act is required to accord procedural fairness to both a claimant and a respondent. It submitted that the Panel’s finding that Mr Edwards’ post-traumatic stress disorder and major depressive disorder were currently in remission could not be said to be unexpected, unable to be reasonably anticipated, or not obviously open on the known material. The Panel’s diagnoses were consistent with those previously made. Mr Edwards, through his lawyers, was on notice that the Panel’s task was to assess the nature and current severity of his psychiatric condition, and there was a clear possibility that the Panel would find that his symptoms had abated.
The State pointed out that Mr Edwards, through his lawyers, had ample opportunity to provide information, documents and submissions to the Panel, but provided none. It also contended that Mr Edwards had not discharged the onus of proving that the claimed want of procedural fairness was material.
Consideration
I consider that the Panel’s conclusion that Mr Edwards’ psychiatric disorders were currently in remission, and had stabilised at that level, came out of the blue, and could not reasonably have been anticipated by the parties. There was no suggestion in any of the material that had been provided to the Panel that his psychiatric condition had improved to the point of remission, and that the improvement was an enduring one. The reports included in the referral material provided a much bleaker picture of Mr Edwards’ prognosis. Professor Ogloff’s assessment in 2012 was:[61]
The risk assessment indicates that Wonyarna presents a very high risk of re-offending generally and a high risk of re-offending violently in the future. He may also present some risk of future sexual offending. Any prognosis for Wonyarna is guarded, particularly since there appears to be little hope for ongoing emotional stability and development given his own limitations and the environment in which he finds himself as a result of his offending.
In April 2014, consultant psychologist Warren Simmons was of the opinion that ‘without treatment and intervention, the future for this young man is guarded, but likely to lead to further offending and incarceration’.[62] Most recently, in February 2018, Dr Serry considered there was a risk of further deterioration in both the short and long term future.[63]
[61]Report of Professor James Ogloff, dated 5 October 2012.
[62]Report of Warren Simmons, dated 2 April 2014.
[63]Report of Dr Nathan Serry, dated 16 February 2018.
Consistent with the reports, the comprehensive submissions provided to the Panel on behalf of the State did not suggest that Mr Edwards’ psychiatric condition was improving, or in remission. To the contrary, the State emphasised the ‘nature and extent of the Claimant's pre-existing psychiatric injury, symptoms and impairment’,[64] and urged the Panel to take this into account in making its assessment.
[64]Respondents’ submissions to the Medical Panel dated 14 October 2019, [25].
Having formed a preliminary view that Mr Edwards’ psychiatric condition was currently in remission, and had stabilised at that level, the Panel should have recognised that this was a new and different opinion, and not one that might have been anticipated by the parties on the material provided to it. The Panel should then have given the parties an opportunity to respond to its preliminary view. Mr Edwards would then have had the opportunity to submit to the Panel that it should obtain his most up to date medical records before finalising his opinion. As I have already found, there was a realistic possibility that this additional information could have affected the outcome.
I conclude that the Panel was procedurally unfair in making new finding that Mr Edwards’ condition was in remission, and that its failure to give the parties an opportunity to respond to that proposed finding was material to the outcome.
Disposition
The Panel’s determination was affected by jurisdictional error in a number of respects. I will make an order in the nature of certiorari quashing the determination.
Mr Edwards sought a further order in the nature of mandamus remitting the medical question to a differently constituted Medical Panel to be determined in accordance with law. There must be some reason to remit the question to a differently constituted Panel; it does not automatically follow from a finding of error.[65]
[65]Vegco Pty Ltd v Gibbons [2008] VSC 363, [33]; Schmael v Leach [2020] VSC 562, [51]-[52].
I consider that the Panel’s errors here were more than technical; there was a substantial failure to perform its statutory function. The Panel misunderstood a critical part of the history it took from Mr Edwards, failed to engage with the extensive medical records with which it had been provided, failed to obtain up to date medical records concerning Mr Edwards’ recent participation in the Moroka program, and was procedurally unfair in reaching its determination. For the same Panel to reconsider the referred medical question would give the appearance of prejudgment. I will give a direction that the medical question be determined by a differently constituted Panel. The delay in determining the question first referred to the Panel in April 2019 is most unfortunate.
I will hear the parties on the question of the costs of the proceeding.
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