Ford v Narrabri Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ford v Narrabri Shire Council [2022] NSWPIC 119
APPLICANT:	Kerry Robert Ford
RESPONDENT:	Narrabri Shire Council
MEMBER:	Jill Toohey
DATE OF DECISION:	22 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for section 60 of the Workers Compensation Act 1987 (1987 Act) expenses; accepted injury to lower limbs arising out of or in the course of the workers employment; whether proposed “right transtibial osseointegration surgery with bone graft to tibia and targeted muscle reinnervation of tibial, saphenous and deep perineal nerves with reanastamosis” is reasonably necessary; worker with multiple medical conditions and limited life expectancy; in wheelchair; no dispute that the proposed treatment is the worker’s only prospect of walking again; no alternative treatment proposed; agreement to seek non-binding opinion of Medical Assessor; determination “on the papers”; applicant’s request for leave to make supplementary written submissions concerning Commission’s jurisdiction and interaction of the 1987 Act with Commonwealth age and disability discrimination legislation refused; Bartolo v Western Sydney Area Health Service and Diab v NRMA considered; Held- proposed treatment is not reasonably necessary; award for the respondent.
DETERMINATIONS MADE:	1. The applicant sustained injury to his left and right lower limbs arising out of or in the course of his employment with the respondent. 2. The treatment proposed by Prof Al Muderis, being “right transtibial osseointegration surgery with bone graft to tibia and targeted muscle reinnervation of tibial, saphenous and deep perineal nerves with reanastamosis”, is not reasonably necessary treatment as a result of the applicant’s injury. 3. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Mr Kerry Ford (the applicant) was employed by Narrabri Shire Council (the respondent) on 21 April 1998 when he suffered a severe injury to his left foot. At the time, he was driving a front-end loader and clearing pine trees. On climbing down from the vehicle, he stood on the remains of a tree stump. It pierced his left work boot and penetrated the lateral part of the plantar surface of his foot.
The wound became infected and required extensive surgical debridement and intravenous antibiotics, and Mr Ford’s left fifth toe was amputated. Further surgery was needed to deal with the spread of infection throughout the foot. Subsequently, the wound tended to heal and then to break down again.
Mr Ford suffered further injuries to his feet including in late 1999 when he was assigned to a road-patching gang which involved walking long distances behind a vehicle and patching the tarmac surface of the road in temperatures up to 40 degrees. The left plantar surface became infected again and he developed an ulcer on his right leg which failed to heal.
Repeated attempts over the years to improve the condition of Mr Ford’s feet met with little success. He was hospitalised several times and underwent multiple debridements and intravenous infusions with antibiotics. In October 2019, his right leg was amputated below the knee and his left foot was partially amputated.
By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 5 July 2021, Mr Ford claims compensation for the cost of surgery proposed by Prof Munjed Al Muderis from the Limb Reconstruction Centre at Macquarie University Hospital. The procedure is described as “right transtibial osseointegration surgery with bone graft to tibia and targeted muscle reinnervation of tibial, saphenous and deep perineal nerves with reanastamosis”. Put very simply, osseointegration involves an implant by which a prosthesis can be anchored directly to the bone.
The respondent accepts liability for the injury to Mr Ford’s left foot on 21 April 1998 and to both lower extremities on 25 October 2011 (deemed date). However, the respondent disputes that the proposed surgery is reasonably necessary treatment as a result of his injury as required by section 60 of the Workers Compensation Act 1987 (the 1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the issue remaining in dispute is whether the surgery proposed by Prof Al Muderis is reasonably necessary treatment as a result of the injury sustained by Mr Ford.

PROCEDURE BEFORE THE COMMISSION

Telephone conference 2 August 2021

At a telephone conference on 2 August 2021, Mr Ford was represented by Mr Joseph Hallion of counsel, instructed by Mr Mario Bechelli. The respondent was represented by Ms Katt Faapito.
During the telephone conference, I raised with the parties copies of guardianship and financial management orders made by the NSW Civil and Administrative Tribunal (NCAT) on 30 March 2021 which were included with the documents attached to the Reply.
The guardianship order indicated that the NCAT proceedings involved review of a guardianship order but did not specify when the order under review was made or its terms. The order appointed the Public Guardian for a period of six months with functions including “to decide what health care [Mr Ford] may receive” and to “make substitute decisions about proposed minor or major medical dental treatment where [Mr Ford] is not capable of giving a valid consent”. The order also gave the Public Guardian the function “to make decisions for [Mr Ford] in relation to access to legal services”.
The financial management order indicated that the proceedings involved review of an order made on 31 March 2020 but did not specify its terms. The order committed the management of Mr Ford’s estate to the NSW Trustee and Guardian for a period of six months within which time the order was to be reviewed.
After discussion with the parties about Mr Ford’s power to deal with his own affairs in light of the financial management order, I directed Mr Ford’s representative to notify the NSW Trustee and Guardian of these proceedings and to obtain the Trustee’s views as to whether Mr Ford could bring the proceedings in his own name.
No directions were made in respect of the Public Guardian’s involvement as there was no evidence that Mr Ford was not capable of giving a valid consent to treatment and, in my view, his capacity to consent to treatment was not a matter for these proceedings.
Mr Hallion advised that Prof Al Muderis had not seen reports of Dr Sean Nicklin and Dr Phil Huang, both of whom considered the proposed treatment was not reasonably necessary in Mr Ford’s circumstances. Mr Hallion advised that, as the medical reports indicated there was some urgency to a decision whether to carry out the procedure, he would prefer not to discontinue the application but to seek comment urgently from Prof Al Muderis on the respondent’s doctors’ reports. Mr Hallion proposed there be a further telephone conference in two weeks. The respondent’s solicitor had no objection to that proposal.

Telephone conference 16 August 2021

At a telephone conference on 16 August 2021, Mr Kenneth Ho appeared on behalf of the NSW Trustee and Guardian. Leave was granted to amend the ARD in line with Mr Ho’s advice that the proceedings should be brought in the name “Kerry Robert Ford by NSW Trustee and Guardian as financial manager”.
It was agreed that the guardianship order was not an issue for these proceedings but that Prof Al Muderis should be made aware of it if proceeding with treatment.
The parties could not reach agreement as to whether the proposed treatment was reasonably necessary and the matter was listed for conciliation/arbitration hearing on 20 September 2021.

Conciliation/arbitration hearing 20 September 2021

The hearing was conducted by telephone. Mr Ford was represented by Mr Hallion instructed by Mr Bechelli. The respondent was represented by Mr Stuart Grant, instructed by Ms Faapito.
After some discussion about the complexity of the medical issues in Mr Ford’s circumstances and the divergent medical opinions, the parties agreed that the matter should be referred to a Medical Assessor for a non-binding opinion as to whether the proposed treatment was an appropriate course having regard to Mr Ford’s circumstances. I was satisfied that an independent opinion would assist me in my determination and the matter was referred accordingly. The proceedings were adjourned to a further teleconference on a date to be fixed by the Commission on receipt of the Medical Assessor’s opinion.
Dr Jonathan Negus saw Mr Ford for assessment on 16 November 2021 at Northern Beaches Hospital where he was then an inpatient. Dr Negus issued a Medical Assessment Certificate (MAC) dated 27 January 2022. He concluded that the proposed treatment was not reasonably necessary in Mr Ford’s circumstances.

Telephone conference 10 February 2022; direction for written submissions

A further teleconference was held on 10 February 2022. It was listed inadvertently before another member. The matter could not be resolved at the telephone conference and parties requested it be listed for a conciliation/arbitration hearing.
The member had no availability within a time that would accommodate the urgency of the matter. The matter was re-allocated to me with directions by Senior Member Capel that the applicant file and serve written submissions by 21 February 2022, the respondent do the same by 28 February 2022, and the applicant lodge any reply by 4 March 2022, following which the matter would be determined “on the papers”. The directions noted the urgency of the matter.
In accordance with the directions, submissions were lodged on behalf of Mr Ford on 21 February 2022 and by respondent on the morning of 25 February 2022.

Applicant’s application to lodge supplementary submissions

By email on 25 February 2022, the respondent notified the Commission that it had been served that morning with an Application to Admit Late Documents (AALD) on behalf of Mr Ford attaching lengthy submissions supplementary to those filed on 21 February 2022.
The respondent stated that it objected to the further submissions on the basis that they were out of time and contravened the directions, and raised issues of jurisdiction not raised previously. The respondent noted that its submissions had been filed that morning in accordance with the directions.
Mr Ford’s representatives were advised that I would consider any submissions filed by close of business that day as to why the late submissions should be accepted.
Submissions were duly filed. They noted that Senior Member Capel’s directions for an abridged timetable referred to “the discrete nature of the matter in dispute, namely whether the [proposed treatment] is reasonably necessary as a result of the injury”. It was submitted that, while that characterisation “fairly reflected the medical dispute”, it did not have regard to:
“… the novel and complex questions of law arising as to the jurisdiction under section 60 of the Workers Compensation Act 1987 (WCA) and arising due to the interaction of the WCA with Commonwealth legislation enshrining statutory rights under the Disability Discrimination Act 1992 (C’th) (DDA) and the Age Discrimination Act 2004 (C’th) (ADA).”
It was further submitted that:
“The issue of jurisdiction arises under s 60 WCA both as to whether the Commission exercises parens patriae jurisdiction to in effect intervene to protect the applicant from either himself or medical team alternatively whether such a consideration forms part of the s 60 WCA in determining whether treatment claimed is reasonably necessary.”
It was submitted that a “further jurisdictional arises [sic] in respect of the Commission’s jurisdiction as it relates to section 60 WCA and its interaction with the DDA and ADA” and:
“[A]ny determination by the Commission which fails to have regard to statutory provisions protecting discrimination on the basis of age and disability and any determination which ignores the statutes will be unlawful.”
It was submitted that, if the extent of the Commission’s jurisdiction is not determined, there would “arguably” be a constructive failure to exercise jurisdiction. Alternatively, that there is “a risk that any determination will be unlawful and ultra vires”.
It was submitted that it is irrelevant whether the respondent opposes the supplementary submissions or not because the jurisdictional issue must be determined one way or the other.

Respondent’s objection to further submissions

The respondent opposes the filing of, and reliance by the applicant upon, the supplementary submissions. The respondent submits that, on a fair reading, they purport to cover issues already covered in the applicant’s initial written submissions and the respondent’s in reply.
Further, the respondent submits, the supplementary submissions seek to challenge the Commission’s jurisdiction to determine the matter because of the interaction of section 60 of the 1987 Act and Commonwealth legislation. It is submitted that this issue was not raised at all before the commencement of the proceedings and no challenge was made to the Commission’s jurisdiction at the outset. It is submitted that to permit the applicant to raise these issues might have serious repercussions for the Commission’s jurisdiction generally, and raise serious matters of law.
In summary, the respondent submits:
·        The filing of supplementary submissions contravenes the directions made on 11 February 2022 because they are sought to be filed out of time.
·        They seek to cover matters largely already addressed by the applicant.
·        The respondent would be seriously prejudiced because it has prepared and conducted the proceedings on the basis that no objection was raised to the Commission’s jurisdiction to hear the matter and its case is now closed.

Consideration

The supplementary submissions run to 15 pages, a large part of which covers issues dealt with, if briefly, in the original submissions. In particular, they take issue with Dr Negus’s opinion. They quote at length from a journal article not previously referred to and not cited by any of Mr Ford’s doctors. They refer to a literature review said to demonstrate the poor mental health outcomes of discrimination on the basis of age and disability.
More significantly, the submissions raise issues of the Commission’s jurisdiction which were not raised previously at any point during the proceedings. In short, it is submitted that any reliance on Mr Ford’s “age and/or his comorbidities (a disability) as a basis for determining the proposed surgery was not reasonably necessary would be deemed discrimination and unlawful”.
It is submitted that Mr Ford’s
“statutory rights under the DDA and ADA must not only inform the Commission’s section 60 analysis but operate to deem a determination unlawful where the applicant’s age and/or disabilities provide any basis for the refusal of the medical treatment in the form of the proposed surgery.” (emphasis in original)
The submissions acknowledge that there is “no authority in respect of the application and interaction under the ADA and ADA [sic] and entitlement to medical treatment” under the 1987 Act or the Workplace Injury Management and Workers Compensation Act 1998.
There have been three telephone conferences and one adjourned conciliation/arbitration in this matter since the application was lodged on 5 July 2021. The issue in dispute has been clear, and agreed, throughout. The characterisation of the dispute as set out in the Senior Member’s directions mirrors that which has been agreed throughout. It is not as if Mr Ford’s age and multiple complex medical conditions have not been known throughout the proceedings; they have been commented on extensively by the medical experts on both sides.
There is no reason why the applicant should be given a second opportunity to expand on submissions already made. Further, the applicant should not be permitted at this stage in the proceedings to raise “arguable” issues of jurisdiction that present, in the applicant’s submission, a “risk” that a determination will be made ultra vires. The fact that the submissions acknowledge that there is no authority in respect of the matters raised only reinforces my view.
The real issue in this case is whether the proposed treatment is reasonably necessary as a result of Mr Ford’s injury within the meaning of section 60 of the 1987 Act. That determination requires the application of the relevant law to the facts.
The application to lodge supplementary submissions and thereby to challenge the Commission’s jurisdiction is refused.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attachments;
(b)    Reply and attachments;
(c)    AALD lodged by the applicant on 13 September 2021 and attachments;
(d)    AALD lodged by the respondent on 15 September 2021 and attachments;
(e)    AALD lodged by the applicant on 4 February 2022 and attachment, and
(f)    MAC dated 27 January 2022.
A further AALD was lodged on 4 February 2022 on behalf of Mr Ford attaching a statement in which he responds to statements in the MAC. No objection appears to have been taken by the respondent to its admission. In my view, it is relevant and I have taken it into account.

Oral evidence

Neither party sought leave to adduce oral evidence or cross-examine any witness.

Mr Ford’s evidence

Mr Ford provided a brief statement of evidence dated 1 July 2021.[1] His second statement in response to the MAC is outlined below.
[1] ARD page 57.
Mr Ford states that he was born on 29 May 1950. He had been admitted to Macquarie University Hospital about three weeks earlier for the purposes of osteointegration surgery on his right leg. He was transferred from there to Northern Beaches Hospital. He states that Prof Al Muderis has recommended he undergo the surgery and has explained the risk and the nature of the complications that may arise. He states that he understands those issues and wishes to proceed with the surgery as soon as possible.
Mr Ford’s statement in response to Dr Negus’s opinion is referred to below.

Medical evidence

There is no dispute as to the history of Mr Ford’s injuries and the subsequent complications.
Nor is it in dispute that Mr Ford has a complex medical history. The medical reports refer to his extensive “comorbidities” including insulin-dependent Type 2 diabetes, chronic leg ulcers, peripheral vascular disease requiring stenting, cardiac failure, chronic renal failure, right knee arthritis, bilateral septic arthritis and likely osteomyelitis, and gastro-oesophageal reflux disease. He is morbidly obese and of advanced age. He has been diagnosed with vascular dementia.

Dr Sardelic’s report

Dr Franklin Sardelic, consultant surgeon, reported to the insurer on 6 April 2020 in response to questions about how Mr Ford’s “recent problems” related to the injury to his left foot in 1998.[2] While not directly related to the proposed treatment, the report includes relevant background.
[2] Reply page 21.
Dr Sardelic said diabetic patients can have multiple issues leading to problems with their feet, most commonly vascular disease. Mr Ford’s admission to hospital in September 2019 was essentially due to complications of his diabetes. Dr Sardelic said diabetics have a high propensity for developing infections in their feet, and infections on Mr Ford’s left side led to the amputations in September 2019 and, ultimately, the right below-knee amputation.
Dr Sardelic reported that, since then, Mr Ford had ongoing issues with “wound dehisecence” and needed debridement. He said:
“He also developed significant behavioural problems, necessitating a prolonged hospital admission. He has been poorly compliant with care. He has developed incontinence and has evidence of cognitive impairment, and is no longer safe to look after himself. He needs long-term residential care.”[3]
[3] Reply page 21.
Dr Sardelic reported that Mr Ford had also developed significant cardiac failure and a degree of chronic renal impairment both of which had caused “significant issues” while he was in hospital. It was not clear whether they were related to his diabetes. He said Mr Ford’s capacity to be “self caring, independent and mobile has [sic] been significantly affected by his infection, the results for surgery, his cognitive deficit and non-compliance”. Rehabilitation was not an option at that stage while his wounds were still healing. He presented “reasonably well” but was “lacking insight into his situation”.

Reports from Dr Ong, Prof Al Muderis and Dr Tetsworth

Dr Germane Ong, orthopaedic registrar, reported on 27 May 2021 to Mr Ford’s general practitioner, Dr Andrew Whittaker, that he and Prof Al Muderis had seen Mr Ford and his carer that day about osseointegration to his left tibia.[4]
[4] ARD page 39. In the context of what follows in the report, it appears this should read “right” knee.
Dr Ong described Mr Ford’s “significant past medical background” of Type 2 diabetes and chronic kidney disease. He said Mr Ford denied any cardiac or respiratory issues. Dr Ong noted that he had been “wheelchair-bound” for the previous two years since the amputations, and he had phantom pain on the right leg. Mr Ford had not tried any socket prosthesis as he said Dr Sardelic had never cleared him to use one. X-rays showed the right below knee amputation with the residual stump and “disuses [sic] osteoporosis evident and end stage lateral component knee arthritis”.
Dr Ong reported that Mr Ford had been referred to Dr Walid Mohabbat for an “urgent arterial duplex”. Dr Mohabbat had subsequently advised that he had significant stenosis in the common iliac artery and needed urgent stenting. He would be admitted to hospital for IV antibiotic treatment of cellulitis and the non-healing ulcers, and Dr Mohabbat would address the vascular occlusion early the following week.
Dr Ong reported that he and Prof Al Muderis had advised Mr Ford from an orthopaedic point of view they would like to aim towards a right transtibial osseointegration and a left below knee amputation and transtibial osseointegration as well. This would not only improve his mobility but would resolve the issues of the foot deformity on the left side and phantom pain. They would recommend a targeted muscle reinnervation (TMR) at the same time.
Dr Ong said the proposed treatment was “not only reasonable but necessary to improve his overall quality of life and his only shot at ever walking again.” If the right transtibial osseointegration did not work, they might need to proceed to an above knee amputation with trans-femoral osseointegration although this was not the preferred option at this stage.
Dr Karan Doshi, orthopaedic fellow, reported to the insurer on 27 May 2021 on behalf of Prof Al Muderis that Mr Ford had undergone a comprehensive independent review by the orthopaedic and vascular teams. A scan by the vascular team showed he had “significant stenosis in the common iliac artery and needed urgent standing [sic: stenting] for management of same”. He would need intravenous antibiotics. Considering his multiple comorbidities including heart failure, vascular dementia and bacteraemia, he would be managed by a multidisciplinary team including orthopaedic and vascular surgeons, and physicians and infectious disease specialists.[5]
[5] ARD page 41.
By email dated 28 May 2021, the insurer advised the Limb Reconstruction Centre that approval was given for 10 days’ hospital stay for Mr Ford and in-principle approval for the procedures referred to by Dr Doshi. Approval was not given for other surgeries including osseointegration or TMR, a detailed proposal for which would be required prior to considering approval.[6]
[6] ARD page 45.
By email to Prof Al Muderis dated 8 June 2021, the insurer asked for his response to a number of questions. The insurer’s email is in evidence.[7]
[7] ARD page 48.
Prof Al Muderis responded by letter dated 11 June 2021.[8] He said his orthopaedic team had seen Mr Ford on a daily basis and he had seen Mr Ford two to three times a week to monitor his progress. Mr Ford had undergone an aortobifemoral angiogram and left anterior tibial artery stenting for significant arterial stenosis under Dr Mohabbat on 2 June 2021. He would need ongoing aspirin post-operatively which to date had been withheld as plans were underway for osseointegration. Mr Ford had also had a urology review for prostatomegaly, and endocrine review for poorly controlled diabetes. Infectious disease physician, Dr Paul, found his ulcers were non-healing but had not progressed, and antibiotics had been ceased.
[8] ARD page 53.
Regarding a conventional socket prosthesis, Prof Al Muderis referred to Mr Ford’s extensive comorbidities (as set out above). Considering these in total, he said it was
“… extremely unlikely that he will ever be able to use a socket mounted prosthesis. Just considering his obesity and his general lack of physical conditioning alone, he would be less than 10% probability of ever using a prosthetic limb even on an extremely limited basis. Individuals who exceed 130kg in weight at the Royal Brisbane Hospital are not even considered candidates for a socket mounted prosthesis as they will not be able to use this type of leg. Given that he also has vascular dementia and a history of heart failure, this is a man who needs a limb that can be firmly attached to his leg providing him the ability to maintain his mobility, not simply transfer from bed to chair. He needs an ability to ambulate independently and that will not be possible using a socket mounted prosthesis. Evaluating him from the bedside you would be able to tell almost immediately that he is a terrible candidate for the use of a conventional socket prosthesis.”[9]
[9] ARD page 54.
Prof Al Muderis said:
“[It is] highly unlikely that Mr Ford would be able to use a socket mounted prosthesis, so much so that it is unreasonable to consider even fitting him with the prosthetic limb. This will require perhaps as long as four months before the swelling following his primary amputation will have resolved to the point that he can be even considered a candidate for fitting with a definitive socket mounted prosthesis. This delay of months will only decondition him further and considering the extent of the comorbid conditions that were listed [above] this is asking for trouble. His chance of mortality in the coming year exceeds 50% unless he is granted the opportunity to resume weight-bearing and mobilisation activities as quickly as possible. This can be achieved using osseointegration where within 12 weeks we would expect him to be able to ambulate independently and within a period of several weeks he should be able to resume rehabilitation and early ambulation partial weight-bearing using a frame or crutches.”[10]
[10] ARD page 54.
Prof Al Muderis explained further why a socket prosthesis would be “completely unrealistic” for Mr Ford, and the benefits of osseointegration over a socket prosthesis. At this point, I would note that the respondent does not suggest that socket prosthesis is a suitable procedure for Mr Ford.
Prof Al Muderis said:
“I do not believe I am overstating the case or exaggerating unnecessarily and I am simply stating my opinion based on documented facts and the benefits that we know will accrue to him if he has osseointegration. I will note further that with an osseointegration mounted limb, he will immediately and without any necessary further training or rehabilitation, obtain the ability to appreciate where his limb is in space meaning what we now term osseoperception, which is much like proprioception, though this is mediated directly through the skeleton. Although this is not yet explained it is easily documented and this has been described in the osseointegration literature for some years now. What this allows him to do is to realise when his limb touches the ground. This is tremendously important for him in terms of early mobilisation. This is simply not possible using a socket mounted prosthesis. Osseoperception alone is enough to be a very strong point favouring osseointegration over a socket mounted prosthesis. In Mr Ford's case, this will give him the confidence to bear weight and to mobilise particularly considering again his many comorbld conditions. Even if Mr Ford were to be able to be fitted with a socket mounted prosthesis, he then would be at extremely high risk of falls and further injury given his obesity, his vascular dementia, his general deconditioning and with his chronic kidney disease and his general lack of mobility, he would be at extremely high risk of secondary fractures including to his wrists or more likely to his hip.”
Prof Al Muderis described osseointegration as the “core and fundamental component” and the “absolute most critical aspect” of Mr Ford’s rehabilitation that would allow him to mobilise confidently and safely as soon as possible.
As to the benefits of TMR with respect to phantom limb pain management, Prof Al Muderis said these are well documented. He referred to a number of researchers who have published “extensively” on the benefits of TMR, and suggested that an internet search would readily identify these.
Dr Kevin Tetsworth provided a written report dated 10 September 2021 to Mr Ford’s solicitors on behalf of the Limb Reconstruction Centre in response to reports from Dr Huang and Dr Nicklin.[11] Dr Tetsworth’s report is considered below.
[11] AALD lodged 13 September 2021 page 3.

Other reports

Dr Ponni Palaniappan, psychiatrist, provided a report dated 29 January 2021 to Dr Whittaker. For the most part, it documents the breakdown of Mr Ford’s relationship with a woman described as his “guardian”. Her legal status is not clear from the report but Dr Paliniappan refers to a lawyer currently assisting Mr Ford “with the revocation of the guardianship order.”[12]
[12] Reply page 23.
Dr Mohabbat, vascular medicine and surgery discipline head at Macquarie University Hospital, provided a report to the insurer on 28 May 2021. He advised that Mr Ford was referred to him by Prof Al Muderis. An ultrasound showed that Mr Ford needed an angioplasty and stent procedure to improve the circulation in his legs so that he could safely have the proposed orthopaedic surgery. He said, additionally, the revascularisation of Mr Ford’s leg would allow his amputation to heal.[13]
[13] Reply page 27.
Chris Basten, psychologist, provided a report to Prof Al Muderis dated 11 June 2021.[14] He reported that Mr Ford had asked to see him for an opinion “about his cognitive functioning and to obtain a statement that he did not have dementia”. Mr Basten said he was yet to do a comprehensive assessment which would require “a full psychometric assessment by specialist clinical neuropsychologist”, and Mr Ford would have to be assessed when he was medically stable and not on any medication that would affect his cognition. Mr Basten concluded that he could empathise with Mr Ford’s desire to walk better but his “ability to problem solve this outcome seems flawed” and his “organisational and decision-making skills are more impaired than he realises.”
[14] Reply page 33.

Dr Huang’s reports

Dr Phil Huang, orthopaedic and trauma surgeon, conducted a file review of Mr Ford’s suitability for osseointegration procedure at the request of the insurer. He provided the report dated 29 June 2021.[15]
[15] Reply page 35.
Dr Huang said he has been involved in osseointegration since the late 1990s and performs the procedure along with plastic surgeon, Dr Sean Nicklin. They have formal links with the osseointegration group at the Alfred Hospital in Victoria and have monthly meetings to discuss and share complex cases, and they have quarterly meetings with a parent group in Sweden to audit and discuss many of the cases performed.
Dr Huang noted the history of Mr Ford’s injuries and treatment. He noted “mentions of poor compliance with care particularly with respect to the ulcers and the wound management”. He noted that Mr Ford was unable to manage his four daily insulin injections by himself, and had had multiple issues with documented wound healing of his ulcers and stump.
With respect to Mr Ford’s cognition, Dr Huang noted that an aged care and rehabilitation team at Tamworth Hospital performed and Addenbrookes Cognitive Exam (ACE) in January 2020 in which Mr Ford scored only 74/100, and a score “less than the mid-eighties suggests serious cognitive impairment”.
As to whether Mr Ford was a suitable candidate for the proposed osseointegration procedure, Dr Huang said:
“Although there are no formalised indications or contraindications for the procedure the accepted consensus is that osseointegration benefits amputees who have failed a trial of conventional socket prosthesis due to stump or wound issues. The recommended patient is usually physiologically young with minimum or no comorbidities or risk factors. The patient’s weight is usually important and BMI is usually recommended to be below 30. There needs to be a heavy investment from the patient in terms of commitment and compliance in order for the procedure to be successful and even then complications are very common with superficial wound infections being the most common.”
Based on the notes and data provided to him, Dr Huang said Mr Ford was not a suitable client for osteointegration. He said:
“He is over 70 years of age and has multiple comorbidities including poorly controlled insulin-dependent diabetes, marked cognitive decline, obesity and lack of insight into his current medical situation. I note that he is also under a guardianship/power of attorney although the specifics of this are lacking.”
Dr Huang said, further:
“Currently, he requires full assistance in most of his activities and there are mentions of abnormal bowel and bladder control throughout the records with incontinence pads being used. In addition he has had multiple admissions into hospital relating to his poorly controlled diabetes. This has included diabetic ketoacidosis, chronic diabetic ulcers, renal impairment and multi organism that bacteraemia. The procedure and the required intensive rehabilitation is demanding on the patient and Mr Ford’s poor baseline functional status and his recent echocardiogram performed in March 2020 would indicate that the outcomes of the procedure and its intended purpose would be very poor.”
Dr Huang said there were indications in the files that Mr Ford has end stage lateral side of arthritis in the knee which would be one of the relative contraindications to performing the osseointegration procedure. He said:
“The implant and its success requires a fully functioning and pain-free joint and having pre-existing fixed flexion contracture’s and degenerative disease would likely result in early revision and conversion into a module on the prosthesis or an above knee implant.”
Lastly, Dr Huang said, in his opinion the benefits of the procedure on Mr Ford’s overall function would be minimal. There was a “high likelihood of failure considering his multiple risk factors” and “a low probability that his mobility would be improved since his current and long-term baseline function is so low to begin with.”
According to Dr Huang, the risks Mr Ford would face would include:
“… anaesthetic associated complications, wound failure, hardware related issues such as the ability for the implant to be osseointegrated, periprosthetic fracture due to documented recurrent falls, deep infection due to underlying ulcers and previous multi-organism bacteraemia and lastly the need for revision due to his underlying end-stage knee osteoarthritis. The likelihood of these occurring are significantly higher than an index population because of his pre-existing comorbid conditions and functional status.”
With respect to TMR, Dr Huang said he could not locate detailed information on Mr Ford’s neuropathic symptoms and it would be beneficial to see if there has been any formalised pain assessment. Success was heavily dependent on the host’s physiology. Mr Ford’s advancing age and poorly controlled diabetes meant the outcome would likely be poor. Dr Huang said TMR is a relatively safe procedure in the “correctly selected patient”; in Mr Ford’s case likely risk factors were anaesthetic related complications, worsening pain afterwards, and wound related issues.
Dr Huang said it was difficult to assess Mr Ford’s suitability for alternative treatment, in particular a socket prosthesis, without seeing the condition of the stump. He suggested seeking advice from Stefan Laux, a prosthetist with “years of experience with amputees and osseointegration”. However, considering the factors already referred to, he thought it “highly unlikely that any socket prosthesis or osseointegrated implant will have success in changing his overall mobility and functional status”. There was “minimal harm” in trialling a socket prosthesis but in Mr Ford’s case it would likely fail.
Dr Huang considered that alternative treatments should focus primarily on nonsurgical options to control Mr Fiord’s diabetes and nutritional status, and a formal assessment of his cognitive status. He had been deemed unsuitable at Tamworth Hospital for rehabilitation due to his multiple ulcers, lack of compliance and overall level of mobility. Dr Huang said:
“Addressing these issues first would offer more benefit than a conventional socket prosthesis or osseointegration and would mean he could regain some mobility and strength in rehabilitation.”
As to any barriers that might limit Mr Ford’s options, Dr Huang said medical factors were his “multiple deteriorating chronic conditions which are poorly managed and advancing in their severity”. Psychosocially, he was living in a high-level care facility and exhibited behaviour consistent with severe cognitive decline. An assessment in April 2020 indicated he often “absconded from the facility, usually without any clothing below the waist, making compliance a major barrier to his treatment”.
In summary, Dr Huang said, Mr Ford is not a candidate for osseointegration/TMR and performing the procedure “will likely result in further prolonged hospital admissions.” It is “near impossible” that he would ever be suitable for the procedure no matter how much “optimisation” is done medically.

Dr Nicklin’s report

Dr Nicklin conducted a file review of Mr Ford’s suitability for osseointegration procedure at the request of the respondent. He provided the report dated 29 June 2021.[16]
[16] Reply page 43.
Dr Nicklin reported that he has a special interest in peripheral nerve surgery and experience in the field of osseointegration surgery with Dr Huang and others. He noted Mr Ford’s history.
Dr Nicklin stated that osseointegration procedures in the lower limb are generally indicated for patients who have failed successfully to fit a socket prosthesis, particularly so for below knee amputations “where the vast majority of patients can tolerate a socket prosthesis”. Ideally, he said, “patients are in good health, not obese and have minimal comorbidities that impact on wound healing.” While none of these directly contraindicate the procedure, it would make him “very concerned” in offering such surgery for Mr Ford.
Dr Nicklin stated that he does not consider Mr Ford appropriate for the proposed procedure. Mr Ford’s poorly controlled diabetes with associated peripheral neuropathy and arthrosclerosis would “significantly affect his wound healing capacity.” He stated that the osseointegration wound is more complicated than a standard below knee amputation. Mr Ford’s amputation stump currently has not healed, making it highly unlikely his osseointegration wounds would heal. His right knee arthritis will make any weight-bearing through his right leg more painful and significantly limit his potential to wait bear on a prosthesis, whether osseointegrated or socket-based.
In addition, Dr Nicklin said, Mr Ford’s cognitive impairment and behavioural disorders are “very concerning”. He said “patients need to be able to adequately care for their prostheses which is clearly not the case” for Mr Ford from the documents sighted.
With respect to TMR to manage phantom limb pain, Dr Nicklin said there is certainly some evidence to support its use in management of pain in amputees but “it is not at all absolute or clear”. Despite this, it is “very reasonable” to proceed with TMR surgery at the same time if there is clear evidence of significant phantom limb or neuroma related pain.
Dr Nicklin said he did not believe Mr Ford is appropriate for the TMR procedure. He noted the only mention of phantom limb pain is in letters from the Limb Reconstruction Centre and no other evidence in the documents. Mr Ford is not on any of the usual medications used in phantom limb or neuroma pain. The procedure has a risk of worse pain post-surgery which, although low in patients with significant pre-existing phantom limb or neuroma pain, would appear to place Mr Ford particular risk of higher delayed wound healing and infection due to his comorbidities.

Dr Nicklin identified the same risk factors as Dr Huang in the osseointegration procedure for Mr Ford. In particular, he thought it highly likely Mr Ford would have wound healing issues with infection associated with the prosthesis, likely to lead to infection in the bone which may require further surgery including above knee amputation. There was also the potential for systemic sepsis including diabetic ketoacidosis, “a potentially life-threatening condition”.
Dr Nicklin suggested a formal wounded amputation stump assessment of the need for surgery to heal the wounds on the stump. If that is possible, Mr Ford could be considered for a socket prosthesis but he would seek the expert opinion of a prosthetist and rehabilitation consultant. In reality, he said if it is not possible for the amputation stump to be healed with appropriate surgery, it is very unlikely he will heal with an osseointegration procedure.
Dr Nicklin said:
“The multiple comorbidities previously mentioned coupled with his obesity, poor cognitive function and behavioural disorders make it very unlikely he will succeed with the rehabilitation required to fit and maintain any prosthesis. These issues are likely to only worsen with time.”
In conclusion, Dr Nicklin said, any patient being considered for osseointegration and TMR procedures need to be “maximally medically optimised before proceeding with this complex surgery and rehabilitation”. He said this has “clearly not been undertaken or seemingly even considered”. In a complex patient such as Mr Ford this would take months and “is unlikely to get into a point at which the surgery is appropriate”.

Dr Tetsworth’s report

Dr Kevin Tetsworth provided a report dated 11 September 2021 on behalf of the Limb Reconstruction Centre to Mr Ford solicitors.[17] He referred to the opinions of Dr Huang, Dr Nicklin and Prof Al Muderis. He states he has not read the reports from Dr Huang and Dr Nicklin but understands Dr Huang to conclude that Mr Ford is not a satisfactory candidate for osseointegration and Dr Nicklin believes it unlikely he will reach the point where surgery is appropriate.
[17] AALD lodged 13 September 2021
Dr Tetsworth says neither Dr Huang or Dr Nicklin has the expertise or knowledge in this area to counter that provided by the Limb Reconstruction Centre of which Prof Al Muderis is head. He describes his own and Prof Al Muderis’s expertise and says “this is simply outside [Dr Huang’s and Dr Nicklin’s] scope of true expertise”.
Dr Tetsworth acknowledges that Mr Ford “is not a well man” and has “multiple advanced comorbidities and a very complicated medical history and presentation”. His comorbidities are “compounded by his advanced age and dramatic deconditioning over the course of the past year” and it is “essentially impossible at this time for him to be considered a suitable candidate for anything other than osseointegration”. The “fundamental rehabilitation goal” is to restore mobility and ambulation. Mr Ford needs to be able to stand upright and walk; he is “otherwise bed bound and will inevitably spiral downwards as a complex invalid until he eventually dies.”
Dr Tetsworth states that Mr Ford’s obesity is a contraindication to the use of a socket mounted prosthetic limb, and osseointegration is his “best and perhaps only option”. His other options would be to allow him to continue to gradually deteriorate until he dies; and euthanasia. Amputation would decrease the bacterial burden and allow for some “greater facility with nursing care” but it would make it extremely difficult for Mr Ford to transfer from bed to a chair and he would become truly bedbound and not simply wheelchair-bound. None of these options should be considered “reasonable, caring, empathetic options in a sophisticated modern health care system such as available in Australia”.
Dr Tetsworth says having examined Mr Ford “at some point in the past” when he was able to travel to Sydney, it was “immediately obvious that he is not only a very bad candidate for any type of surgical procedure but he is an even worse candidate for amputation and attempted rehabilitation using a socket mounted prosthesis”. It would be “completely unreasonable” to consider fitting him with the prosthetic leg and any suggestion that he first undergo amputation and trial a socket prosthesis. Dr Tetsworth said:
“If he were to undergo osseointegration he would already be standing upright and ambulating independently full weight bearing by three months, so the suggestion that he first needs an amputation and trialling a socket mounted prosthesis is nonsensical. Now, when we consider the alternative of osseointegration compare to any of the above, meaning benign neglect, euthanasia or amputations and socket mounted prostheses, osseointegration is clearly the favoured option although this is of course a substantial procedure and carries with it its own risks.”
Dr Tetsworth says Mr Ford’s best option “would be to optimise his medical condition as much as is possible and then to undergo osseointegration with or without targeted muscle reinnervation depending on how he tolerates the procedure.” He says:
“The true benefit of osseointegration is that if he survives the surgery we know there is an extremely high likelihood of restoring him to ambulation and mobility. This has been documented repeatedly. Even In the worst cohort of patients, those with vascular amputations, even in an equally bad cohort, the wheelchair bound patient, where the success rate with press-flt osseointegration in the Australian experience, I believe the numbers exceed 50 patients who were previously wheelchair bound and who now ambulate. I am unaware of a single patient who was unable to be restored to at least some level of functional ambulation with osseointegration despite the fact they were previously wheelchair bound. The benefit of osseointegration in these most difficult and challenging patients and the most severely compromised is unparalleled.”
Dr Tetsworth says:
“As hard as it may be to believe, the greatest benefit of osseointegration as the definitive rehabilitation strategy is in the most severely compromised patients and Mr Ford clearly qualifies. An elderly, obese, diabetic man with renal failure and congestive heart failure superimposed on vascular dementia who is now markedly deconditioned has a terrible prognosis. His ambulatory potential without osseointegration is essentially zero. In my opinion not providing amputation and osseointegration with or without targeted muscle reinnervation is in effect condemning him to death. While I do not predict the future, I make no claims to be able to do so, of this there is some certainty. The only question is how quickly before he would succumb.
I agree wholeheartedly with the opinion of Professor Al Muderis in that this is Mr Ford's best option, far and away. The benefits that will come from amputation with osseointegration with targeted muscle reinnervation if possible, far outweigh the risk of no surgery at all. Yes, there is considerable risk associated with any surgical intervention. Yes, this is major surgery. Yes, it is possible that he may not survive surgery. He is not a well man and his risk of mortality associated with major surgery may approach 5% or more, but his risk of mortality without surgery is at least ten times greater than that and approaches 50% in the coming six months. Even if he were to undergo osseointegration and succumb during the coming year, which is certainly still possible, the benefit is still there in terms of facilitating his rehabilitation and mobility during these critical last moments he has on this earth. He will almost certainly enjoy a far greater quality of life in the time he has remaining if he undergoes osseointegration than if he does not, period. This I cannot make any clearer.”
Dr Tetsworth says others may be of the opinion that osseointegration may or may not have any impact on Mr Ford’s clinical course but he can only say that their opinion “would be less informed”. He states that “the most knowledgeable surgeons in the area” are himself and Prof Al Muderis who is “one of the world’s leading authorities in this field”. He describes their clinical experience and expertise. He can say “with great confidence” that Mr Ford’s “quality of life and his potential to remain ambulatory for the remaining time he has will be maximised if he undergoes the procedure.”

Dr Huang’s and Dr Nicklin’s further reports

Dr Huang and Dr Nicklin provided brief reports in response to Dr Tetsworth’s report.[18]
[18] AALD lodged 15 September 2021.
By email dated 14 September 2021, Dr Huang said he had nothing specific to add to his original report and suggested further opinions be sought independent from himself and Dr Nicklin. He identified three specialists in the field of amputation and osseointegration.
Dr Nicklin’s response, dated 15 September 2021, was in similar terms and recommended an independent report from a rehabilitation consultant who works regularly with amputees.

The MAC

Dr Negus saw Mr Ford for assessment on 16 November 2021 at Northern Beaches Hospital where he was then an inpatient. Dr Negus was provided with all of the documents lodged in the proceedings. He took a history of the injury and subsequent treatment which is uncontroversial. He conducted physical examination and noted that right knee X-rays showed “residual bony stump, disuse osteoporosis and severe lateral compartment osteoarthritis”.
Dr Negus noted that Mr Ford has been “wheelchair-bound” for the past two years since the amputations and has “phantom pain in the right leg as well”. He noted that Mr Ford had been assessed for a powered mobility device but deemed not suitable. He noted there are “multiple occasions in the notes were poor compliance with staff re wounds and inappropriate behaviour have occurred”. Further, that Mr Ford was diagnosed with insulin-dependent diabetes in 1984 and his vascular dementia means he is now reliant on nursing staff for managing his medication.
Mr Ford told Dr Negus that his main complaint was his inability to mobilise. He did not complain of any pain, phantom or otherwise.
Under “General health” and “co-morbidities”, Dr Negus noted Mr Ford’s multiple comorbidities which have been documented above. Under vascular dementia, he noted:
“•     Addenbrook’s [sic] cognitive exam score of 74/100 - less then [sic] mid-eighties suggests serious cognitive impairment
•      Likely sub cortical/frontal disconnection
•      Can be verbally aggressive, non-compliant, absconds and discharges against medical advice
•      Non-comliant [sic] with nursing staff leading to difficulties with wounds”

Dr Negus also noted:
“•     NCAT hearing – Found to lack insight and awareness into care needs and unsafe to live alone (Admission Notes to Tamworth hospital 31/01/2020)[19]
·        Needs 24 hour care and supervision for his own safety and quality of life
·        Lacks capacity to make decisions about his care needs, accommodation and finances”
[19] Discharge notes from Tamworth Hospital at ARD page 18.
Dr Negus commented that Mr Ford was “a poor historian, prone to changing the topic of conversation to talk about other unrelated topics, consistent with his dementia. He showed little insight into the state of his health.”
Dr Negus described Mr Ford’s case as “very challenging” because there is “no good option” for him. He said:
“He is a very unwell gentleman with a limited life expectancy and his current quality of life is very poor. He is very dependent on others for his intensive medical care and is now dependent on the public guardian for his decision making due to his cognitive impairment.
It is highly unlikely that that [sic] Mr Ford will walk again without osteo integration surgery. Conventional socket prostheses and not indicated for him to take his weight, his lack of conditioning, his wound issues and his lack of compliance.
However, the likelihood of osseointegration surgery benfiting [sic] Mr Ford is also known as the risks are numerous and life-threatening.”
Dr Negus said:
“Osseointegration surgery is generally recommended for a younger patient with a BMI<30 30 and no comorbidities or risk factors. There needs to be a heavy investment from the patient in terms of commitment and compliance in order for the procedure to be successful and even then complications are very common with superficial wound infections being the most common.”
Dr Negus referred to Mr Ford’s requirement for full assistance in most of his activities and his multiple admissions to hospital relating to his poorly controlled diabetes. He said Mr Ford has “very limited life expectancy” due to his “multiple and severe medical comorbidities”.
On examination, Dr Negus said he found the quality of Mr Ford’s soft tissues to be “very poor especially at the end of his amputation stump” which precluded him from a fitted prosthesis. Dr Negus said it also causes him to have “a very high risk of wound infection, osteomyelitis and sepsis were here to have the osseointegrated prosthesis implanted into the remaining tibial bone.” Dr Negus noted that this had been alluded to in the letters from Prof Al Muderis’s team as they were planning for a femoral osseointegration in the event that the tibial implant failed. In that case, Dr Negus said, Mr Ford would be subjected to further surgery with all the attendant surgical and anaesthetic risk to his heart and kidneys, and his risk of wound healing issues infection and failure following a second procedure was very high.
Dr Negus observed that imaging demonstrated severe lateral compartment osteoarthritis of Mr Ford’s right knee and he found some fixed flexion on examination. He noted Dr Huang’s comment that the success of the implant requires a fully functioning and pain-free joint and that pre-existing fixed flexion contractures and degenerative disease would likely result in an early revision and conversion into a modular knee prosthesis or above knee implant. He noted that Mr Ford “is not a candidate for arthroplasty surgery” and this would appear to be “a relative contraindication to osseointegration to the tibia as outlined by Dr Huang.”
Dr Negus said it is accepted that osseointegration procedures require “significant effort and adherence to an intensive rehabilitation program”. He noted the comments from Prof Al Muderis’s team and Dr Tetsworth that Mr Ford’s lack of conditioning is a large part of the reason to do the procedure “presumably to allow him to rehabilitate himself and reduce his medical comorbidities”. Dr Negus observed that Mr Ford has shown himself to be “non-compliant with medical and nursing staff and lacking insight into his medical needs”. While he this was most likely due to his “failing cognitive abilities from his vascular dementia”, it nonetheless remained the case.
With respect to Prof Al Muderis’s outline of the risk of secondary fracture from falls if Mr Ford were to be fitted with a socket mounted prosthesis, Dr Negus said in his opinion the same would apply to osseointegration “regardless of osseoperception” because of Mr Ford’s size and deconditioning. He said Mr Ford’s “dementia and previous history of non-compliance with rehabilitation would make it unlikely that he would rehabilitate effectively in order to mobilise safely.”
With respect to what he described as Dr Tetsworth’s “impassioned report”, Dr Negus said euthanasia is clearly not an option and not one that anyone else, including Mr Ford, has brought up. That left the option of osseointegration or for Mr Ford to accept his current condition, and to treat him as a palliative case.
Dr Negus noted comments by Prof Al Muderis’s team that Mr Ford has a significant risk of dying in the next 12 months. He said:
“I feel that Dr Tetsworth is placing a lot of emphasis on the assessment of Mr Ford as a palliative case based on whether or not he has osseointegration. Mr Ford has severe cardiac failure and vascular dementia. Both of these conditions give him a significant 5 year mortality risk. Clearly osseointegration surgery will have no effect on his dementia and therefore cannot impact positively upon his mortality risk. In the event that Mr Ford undergoes successful osseointegration surgery and avoids all the risks as outlined, I am not aware of any evidence to suggest that the very limited ambulation that Mr Ford may recover would impact positively in any clinically meaningful way upon his cardiac failure.”
“Unfortunately”, Dr Negus said, Mr Ford is very a unwell man with a limited lifespan and poor quality of life. While everyone would like to be able to do something to change that, if the “something” in question is multiple osseointegration surgeries, then:
“… Mr Ford would be at very high risk of dying sooner from complications of surgery and, in the intervening time, having a significantly reduced quality of life as he is treated for infections and their effects on his already severely compromised heart and kidneys.”
De Negus agreed with Dr Huang about the risks attendant on the procedure, the likelihood of which in Mr Ford’s case he said were significantly higher because of his comorbidities and functional status. He concluded that the benefits need to weigh the risks and, in Mr Ford’s case he did not believe they do.
With respect for TMR for phantom pain, Dr Negus said he did not see the indications for this and Mr Ford did not complain of phantom pain.
Dr Negus agreed with Dr Huang’s and Dr Nicklin’s reports. He noted that Dr Tetsworth said he had not read either report. He noted Dr Tetsworth’s comment that this was “simply outside of the scope of true expertise.” Dr Negus said, on his understanding, Dr Huang and Dr Nicklin do have the expertise and knowledge to assess the patient’s eligibility for the surgery and it is within their scope of expertise.
With respect to Dr Tetsworth’s comment that Mr Ford’s quality of life for the remaining time he has will be maximised with the procedure and that it will “dramatically influence the course of Mr Ford’s remaining time on earth”, Dr Negus said it is highly likely to do so in the sense that Mr Ford will need a minimum of one major surgery and in all likelihood, multiple further surgeries and the high likelihood that his remaining time on earth would be spent in hospital being treated for those complications.
Dr Negus concluded that the proposed treatment is not an appropriate course having regard to Mr Ford’s circumstances.

Mr Ford’s response to the MAC

In a statement in response, Mr Ford states that he has read the MAC provided by Dr Negus. In relation to Dr Negus’s comments under the heading Reasons for Assessment, Mr Ford says he agrees that his current quality of life is very poor; he is wheelchair-bound; he is aware that he is unlikely ever to walk again without osteointegration surgery; and he understands the risks involved in the surgery.[20]
[20] AALD lodged 4 February 2022.
Mr Ford notes Dr Negus’s comment that there needs to be a “heavier investment from [him] in terms of commitment and compliance in order for the procedure to be successful” and that, even then, complications are very common. With respect to his commitment, he says two years ago he weighed 120kg; he now weighs 101kg. He is prepared to comply with all recommendations from the treating doctors and health care professionals to ensure an optimum outcome for the surgery.
With respect to Dr Negus’ comment that he requires full assistance with most activities, Mr Ford says this is one of the reasons he wishes to proceed. Without the surgery, he has no chance of regaining his independence or any quality of life and his condition can only deteriorate. Currently he uses a wheelchair on a regular basis and is able to “self propel” and get around the nursing home where he lives in his wheelchair without assistance. He is able to shower but needs assistance being placed in the shower recess. He is able to transfer from his bed to his wheelchair and back without assistance. He is attending the gym at the nursing home to strengthen his left leg.

In relation to the “medical morbidities” referred to by Dr Negus, Mr Ford lists 19 medications he is currently prescribed.
Mr Ford states that, subject to approval given for his surgery, he intends to have further consultations with Prof Al Muderis and seek his opinion in relation to the proposed surgery and, in particular, as to whether he still recommends it. If he does, Mr Ford proposes to go ahead with it as life at the moment for him is not worth living.

THE APPLICANT’S SUBMISSIONS

It is submitted that the question of whether medical treatment is reasonably necessary can be approached from at least three points of view: firstly, whether the treatment has been necessitated as a result of the subject injury; secondly, whether the benefit to be derived is commensurate with the financial cost; and, thirdly, whether the benefit to be derived, when weighed against the possible adverse outcomes, makes the risk of undergoing the treatment worthwhile.
With respect to the first two questions, it is submitted that the respondent has not raised either for consideration. It is submitted that the third issue is the one in dispute in these proceedings.
It is submitted that comments in the MAC in connection with what is described as Dr Tetsworth’s “impassioned report” are relevant. Dr Negus’s statement that euthanasia, or voluntary assisted dying, is not an option in this country is clearly incorrect. However, whether it is or not, the point of relevance is that the debate around the issue accepts that it is a decision for the patient and the patient alone to make. It is submitted, given Dr Negus’s comment that one can only conclude he would “abhor any suggestion to the contrary”.
It is submitted that the risks of medical treatment and the decision to either proceed or not with the proposed treatment and to live or die as a result, is akin to a decision to proceed with euthanasia. That is, it is submitted it is one taken by the patient alone after consultation with treating doctors. It is submitted that Mr Ford is not aware of any authority displacing this principle in the context of workers compensation law.
It is submitted that the issue to be decided in this case is:
“whether Mr Ford goes without the proposed surgery and as a result it [sic] highly unlikely that he will walk again and continue with his current limited life expectancy and very poor quality of life or undergoes the surgery and risks being subject to further surgery with all the attendant surgical and anaesthetic risks to his heart and kidneys …risk of wound healing issues, infection and failure following this second procedure remain high.”[21]
[21] Referring to paragraph 54, page 5 of the MAC.
With reference to Dr Negus’s conclusions, it is submitted that, at its highest, Dr Negus is saying quite clearly that he would not recommend the procedure to Mr Ford.
It is submitted that what is more important is what Dr Negus is not saying. He is not saying that the proposed surgery has not been necessitated by the subject injury and nor is he saying that the final decision should be taken out of Mr Ford’s hands and given to someone else. It is submitted that:
“Absent such an opinion together with persuasive authority to the effect that such an opinion is relevant, the applicant submits that if the surgery is reasonably necessary from the point of view of the first scenario referred to above, then the decision to proceed or not to proceed is a matter entirely for the applicant and there is no basis for reaching a contrary conclusion.”

THE RESPONDENT’S SUBMISSIONS

The respondent refers to Mr Ford’s “significant comorbidities” including acute kidney failure, heart then you, type to diabetes, bacteraemia and vascular dementia, identified in the discharge referral of Tamworth Hospital.
With reference to the diagnosis of vascular dementia, the respondent refers to the financial management and guardianship order and notes that no evidence is relied upon by the applicant in respect of any decision by the Public Guardian in favour of the proposed treatment. The respondent submits this is inconsistent with 5C of the guardianship order and, for this reason alone, Mr Ford’s claim in respect of the proposed treatment should be dismissed.
The respondent refers to Mr Ford’s statement filed as a document on 4 February 2022 and submits that, in light of his vascular dementia and the guardianship order, no weight can be placed upon his statements as they are provided by someone who has no capacity.
The respondent refers to Dr Ong’s report of 27 May 2021 according to which Mr Ford denied cardiac issues but had other comorbidities. The respondent submits that the “sum total” of Dr Ong’s opinion is that Mr Ford’s quality of life would be significantly improved by the proposed treatment but notes that, if it fails, Mr Ford would be subject to a further than the amputation with transfemoral osseointegration. Given evidence that Mr Ford has multi compartment degenerative change in his knee, it is submitted that the proposed procedure “is doomed to fail from the outset.”
With respect to Dr Doshi’s report dated 28 May 2021, the respondent notes that it refers to Mr Ford being referred to a multidisciplinary team, described as being a “comprehensive approach” that would help Mr Ford take the first step towards management of his comorbidities. The respondent submits that it is evident, from the specific words used by Dr Joshi, that Mr Ford comorbid conditions were not managed. Moreover, Dr Doshi states that further surgeries would be dependent on the recovery of current symptoms.
The respondent refers to Prof Al Muderis’s Report of 11 June 2021 in which he gave Mr Ford a 10% probability of ever using a prosthetic limb because of his ability and general lack of physical conditioning. The respondent submits this limitation is not confined to a socket or osseointegrated prosthetic but to prosthetics in general. The respondent submits that Prof Al Muderis gave Mr Ford a 10% chance of success with any prosthetic limb by reason only of his obesity. While he advocates the osseointegrated prosthetic as a better option, the respondent submits this is not justification for proceeding with surgery in circumstances where the doctor himself gives a 90% chance of failure.
Further, the respondent submits, Prof Al Muderis’s report has to be considered in light of the fact that he did not consider the fact that Mr Ford has not managed any of his comorbidities.
The respondent submits that Dr Basten’s recommendation of a neuropsychological assessment has not occurred but his comments about Mr Ford’s disinhibition, poor self-monitoring and self-regulation of behaviour should be considered contraindications to any surgery.
The respondent submits that Dr Tetsworth has discounted all of the medical opinion apart from his own and that of Prof Al Muderis. Despite stating that he has not read Dr Huang’s and Dr Nicklin’s reports, Dr Tetsworth maintains his own opinion is “objectively better informed”. His comment that the other doctors have no expertise in the area is demonstrably incorrect as identified by Dr Negus in the MAC. The respondent submits that Dr Tetsworth has not engaged with the opposing medical opinion and his report should be given very little weight as the biased opinion of an advocate not an independent expert.
That said, the respondent submits, Dr Tetsworth acknowledges there are significant risks to the proposed surgery. Essentially, he reduces the options are palliative care or having the operation. Despite the high risk of failure, Dr Tetsworth considers Mr Ford’s quality of life will be maximised by the procedure.
The respondent submits that Dr Tetsworth has also failed to consider Mr Ford’s ability to follow through the rehabilitation process. The evidence of his vascular dementia, his failure to comply with simple directions of nursing staff and inability to care for his own wounds seriously undermine Dr Tetsworth’s opinion that the quality of his life would be increased by such an invasive procedure from which he will likely never recover.
The respondent refers to Dr Huang’s and Dr Nicklin’s extensive experience in osseointegration against which Dr Tetsworth’s opinion should be given a little weight.
The respondent refers to the contraindications identified by Dr Huang, in particular the intensive rehabilitation process required following the procedure, Mr Ford’s poor functional status, and the end stage lateral arthritis in his knee which of itself indicates the procedure is likely to fail. Further, risks associated with anaesthetic have not been considered by Mr Ford’s treating doctors.
The respondent refers to Dr Nicklin’s opinion that Mr Ford would not be an appropriate candidate for the procedure, in particular because his right knee arthritis would make any weight-bearing more painful and significantly limit his potential to weight bear on any kind of prosthetic. Further, that Mr Ford’s cognitive impairment and behavioural disorders were concerning because patients must be able to adequately care for the prosthesis. The respondent submits this matter has not been considered by Mr Ford’s treating doctors.
The respondent submits that greatest weight should be given to Dr Negus’s independent assessment. In particular, his opinion that Mr Ford is likely to spend his remaining life in hospital undergoing multiple surgeries and being treated for their complications. The respondent submits that Mr Ford’s quality of life will not be improved by this procedure.
The respondent refers to the principles set out in Bartolo v Western Sydney Area Health Service[22] and the relevant factors to be considered as set out in Diab v NRMA,[23] and submits that Mr Ford is not the right patient for the proposed treatment, it is very expensive, and its effectiveness is significantly in doubt. Noting the clear versions in opinions of the medical expert, the respondent submits that the independent medical assesses opinion should be relied on to essentially “break the deadlock” in favour of the respondent.
[22] [1997] NSWCC 1; (1997) 14 NSWCCR 233 (Bartolo).
[23] [2014] NSWCCCPD 72 (Diab).

SUBMISSIONS IN REPLY

In reply, it is submitted that a representative from the Public Guardian attended all telephone conferences from which can be inferred that the Public Guardian is not opposed to the proposed treatment.[24]
[24] This is not correct. A representative of the NSW Trustee as the appointed financial manager attended telephone conferences.
With reference to the factors outlined in Bartolo and Rose, it is submitted that there is no real issue that the surgery is relevant and “generally appropriate”, it is whether Mr Ford is a suitable candidate given his comorbidities. In this regard, he relies upon his previous submissions.
It is submitted there is no dispute that there are “no available” (I understand this to mean no alternative treatments) and that, given its “nature and complexity” the costs of the surgery cannot be considered unreasonable.
With respect to potential effectiveness, it is submitted that this has to be considered against the consequences of doing nothing. Further, that the treatment cannot be considered a novel procedure.
The submissions refer to the concluding comments of Burke J in Bartolo in which he summarises the factors which led him to conclude that the treatment proposed for Mrs Bartolo was not reasonably necessary. It is submitted that Mr Ford’s case can be distinguished on each fact.

CONSIDERATION

Section 60(1) of the 1987 Act provides:
“If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2)”.
There is no dispute that Mr Ford sustained injury to both lower limbs arising out of or in the course of his employment. The only issue for determination is whether the procedure proposed by Prof Al Muderis is reasonably necessary as a result of his injury.
Mr Ford bears the onus of proof. The standard is on the balance of probabilities, meaning
[25] [2008] NSWWCCPD 134.
[26] [2008] NSWCA 246.
I must feel an actual persuasion of the matters necessary to establish his claim: Department of Education and Training v Ireland[25]; Nguyen v Cosmopolitan Homes[26].
What is reasonably necessary treatment was considered by Burke CCJ in the context of former legislation in Rose v Health Commission (NSW)[27] where he said:
“3.     Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
[27] [1986] NSWCC 2; (1986) 2 NSWCCR 32 [48A-C].
Considering the factors relevant to reasonably necessary treatment under section 60 of the 1987 Act, Burke CCJ said in Bartolo[28]:
“The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[28] (1997) 14 NSWCCR 233.
The principles were summarised by Deputy President Roche in Diab (at [88]-[89]) as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose …,namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”There is no dispute that Mr Ford has a complex medical history and multiple “comorbidities” which are described throughout the medical evidence as including insulin-dependent Type 2 diabetes, chronic leg ulcers, peripheral vascular disease requiring stenting, cardiac failure, chronic renal failure, right knee arthritis, bilateral septic arthritis and likely osteomyelitis, and gastro-oesophageal reflux disease. He is morbidly obese and of advanced age. He has been diagnosed with vascular dementia.
Considering the factors identified in Diab, none of the doctors suggest that Mr Ford is a suitable candidate for alternative treatment by way of a socket-mounted prosthesis, and no other surgical intervention or treatment is suggested.
The respondent does not submit that cost is a factor against the treatment.
The real issue is whether the particular treatment proposed is appropriate for Mr Ford in his circumstances, and its actual or potential effectiveness. As I understand the opinions of Dr Huang, Dr Nicklin and Dr Negus, they do not take issue with the appropriateness and likely effectiveness of the osseointegration procedure in a suitable candidate. The difference of opinion is whether Mr Ford is that suitable candidate.
There is general agreement that the proposed osseointegration offers Mr Ford his only real prospect of walking again. However, it has to be considered in light of the likelihood of success and the particular risks to Mr Ford because of his multiple medical conditions. Just because it is the only option for him to walk again does not necessarily make it reasonably necessary treatment for the purposes of section 60.
The risks associated with the proposed treatment for Mr Ford are identified first in Dr Sardelic’s report in April 2020. In particular, Dr Sardelic refers to the “multiple issues leading to problems with their feet, most commonly vascular disease” in diabetic patients. He refers to the “high propensity for developing infections in their feet” which, in Mr Ford’s case, led to the amputations in September 2019 and, ultimately, the right below-knee amputation.
Dr Sardelic also noted that Mr Ford had developed “significant behavioural problems, necessitating a prolonged hospital admission”. He had been “poorly compliant with care”. His capacity to care for himself and be independent and mobile had been “significantly affected by his infection, the results for surgery, his cognitive deficit and non-compliance”.
Dr Sardelic said rehabilitation was not an option at that stage while Mr Ford’s wounds were still healing. I accept that Dr Sardelic’s report related to a hospital admission two years ago and it does not follow that Mr Ford will be unable to undergo rehabilitation now, but the likelihood that he will be able to participate effectively in his rehabilitation following osseointegration surgery is a factor of real significance in this case.
Finally, Dr Sardelic commented that Mr Ford presented “reasonably well” but was “lacking insight into his situation”. This is broadly consistent with Mr Basten’s comment in his report in June 2021 that Mr Ford’s “organisational and decision-making skills are more impaired than he realises.”
There is no dispute that Mr Ford has vascular dementia. Mr Basten reported that he was yet to do a comprehensive assessment which would require “a full psychometric assessment by a specialist clinical neurologist” to determine his cognitive functioning. It does not follow from the fact that he has vascular dementia that Mr Ford is unable to make decisions about his own treatment or to participate in rehabilitation following surgery. However, the records from Tamworth Hospital on 31 January 2020 shows that he was “non-comliant [sic] with nursing staff leading to difficulties with wounds” and lacked insight and awareness into his care needs.
Mr Ford acknowledges Dr Negus’s comment that there needs to be a “heavier investment from [him] in terms of commitment and compliance in order for the procedure to be successful”. Mr Ford refers to his weight loss of nearly 20kg over the previous two years and his attendance at the gym at the nursing home to strengthen his left leg. He says he is “prepared to comply with all recommendations from the treating doctors and health care professionals to ensure an optimum outcome for the surgery.”

Despite Mr Ford’s stated intentions, the evidence suggests that he is unlikely to be able to make the “heavier investment in terms of commitment and compliance” necessary for a successful outcome, whether by reason of his age, his “deconditioning” or the effects of vascular dementia, or a combination.
Mr Ford’s doctors acknowledge his “lack of physical conditioning”. Dr Tetsworth refers to his “dramatic deconditioning” over the previous two years” age which, together with his age, Dr Tetsworth says makes it “essentially impossible” for him to be considered for any other surgery than osseointegration. Dr Tetsworth states Mr Ford’s best option is to “optimise his medical condition as much as possible” and then for him to undergo the procedure.
Dr Tetsworth describes Mr Ford as an “elderly, obese, deconditioned man with congestive heart failure who does not have the physical capacity, the strength and the cardiovascular reserve to use the single artificial limb let alone two.” He says it is “hard to imagine” how any surgeon familiar with the benefits of osseointegration could deny that this is his “best and perhaps only option”.
Prof Al Muderis and Dr Tetsworth identify risks that they say make surgery by way of socket prosthesis wholly unsuitable for Mr Ford. The respondent’s doctors agree. However, Prof Al Muderis and Dr Tetsworth appear to proceed on the basis that the proposed surgery must be “reasonably necessary” because it is Mr Ford’s only option for walking again.
Prof Al Muderis acknowledges that there are risks in the surgery. Dr Tetsworth suggests that Mr Ford may not even survive the surgery. Dr Doshi on behalf of Prof Al Muderis says that, if the procedure does not work, they might proceed to an above knee amputation but that is not “the preferred option” at this stage.
With respect to Mr Ford’s experts, they seem to me to remain focused on the proposed surgery as, in Dr Ong’s words, Mr Ford’s “only shot” at walking again. While they refer to his “comorbidities” it does not appear to me from their reports that they have considered in the same detail the potential risks identified by the respondent’s doctors and by Dr Negus.
Dr Tetsworth in particular appears to proceed on the basis of almost certainty that Mr Ford will be “upright, ambulating and full weight-bearing” in three months. He says “with great confidence” that Mr Ford’s “quality of life and his potential to remain ambulatory for the remaining time he has will be maximised if he undergoes the procedure.”
I have real difficulty with Dr Tetsworth’s opinion. He purports to comment on the opinions of Dr Huang and Dr Nicklin but acknowledges he has not read their opinions. He considers that neither is well-informed or has the experience to offer comments. Dr Negus, who is independent, disagrees and is satisfied that both Dr Huang and Dr Nicklin have relevant expertise.
Dr Tetsworth has not, in my view, given careful consideration to all of the risks identified by the respondent’s doctors, in particular of repeated infections, pain and difficulty ambulating post-surgery including because of the arthritis in Mr Ford’s knee, all of which they say make for a very low prospect of success. Nor does Dr Tetsworth appear to consider what part Mr Ford’s vascular dementia and reported cognitive decline might play in the success of his rehabilitation.
Dr Ong appears to recognise the real possibility that the procedure will fail when he says if it does not work, they “might need to proceed to an above knee amputation with trans-femoral osseointegration although this was not the preferred option at this stage”.
Dr Tetsworth recognises the real possibility that, even with the procedure, Mr Ford may “succumb during the coming year” but says “the benefit is still there in terms of facilitating his rehabilitation and mobility during these critical last moments he has on this earth.” His comment underscores the critical importance of rehabilitation to Mr Ford obtaining benefit from the procedure.
Prof Al Muderis reports that he expects that osseointegration will enable Mr Ford to resume “weight-bearing and mobilisation activities as quickly as possible”. He says that, within 12 weeks he would expect Mr Ford “to be able to ambulate independently and within a period of several weeks he should be able to resume rehabilitation and early ambulation partial weight-bearing using a frame or crutches”.
Prof Al Muderis explains that “immediately and without any necessary further training or rehabilitation” Mr Ford will obtain osseoperception, meaning the “ability to appreciate where his limb is in space” allowing him to realise when his limb touches the ground. Prof Al Muderis says this is “tremendously important for him in terms of early mobilisation” and “simply not possible using a socket mounted prosthesis.” He says “osseoperception alone is enough to be a very strong point favouring osseointegration over a socket mounted prosthesis.” With respect to Prof Al Muderis, however, it is not in dispute that a socket mounted prosthesis is not suitable for Mr Ford.
Prof Al Muderis reports that osseointegration with give Mr Ford “the confidence to bear weight and to mobilise particularly considering again his many comorbld conditions.” He refers to the risks associated with a socket-mounted prosthesis as “extremely high risk of falls and further injury given his obesity, his vascular dementia, his general deconditioning and with his chronic kidney disease and his general lack of mobility”. It is not clear why these risks would not attach to rehabilitation following osseointegration particularly as Prof Al Muderis states that Mr Ford will need to resume “early ambulation” and “partial weight-bearing using a frame or crutches”.
In Dr Huang’s opinion, the outcome of the proposed treatment would be “very poor” and it is “highly likely” to result in failure. He notes that Mr Ford was deemed unsuitable for rehabilitation at Tamworth Hospital and his “poor compliance with care particularly with respect to the ulcers and the wound management”. He noted that Mr Ford had had multiple issues with documented wound healing of his ulcers and stump. He refers to the profile of the “recommended patient” including a BMI usually below 30.
Dr Huang refers to the need for “a heavy investment from the patient in terms of commitment and compliance in order for the procedure to be successful”. He describes the “intensive rehabilitation” that is required as “demanding on the patient” and says even then complications are very common “with superficial wound infections being the most common.”
Dr Huang refers to Mr Ford’s end stage lateral side arthritis as “one of the relative contraindications” to the surgery because its success “requires a fully functioning and pain-free joint and having pre-existing fixed flexion contractures and degenerative disease would likely result in early revision and conversion into a module on the prosthesis or an above knee implant.”
Dr Huang identifies the risks Mr Ford would face as
“… anaesthetic associated complications, wound failure, hardware related issues such as the ability for the implant to be osseointegrated, periprosthetic fracture due to documented recurrent falls, deep infection due to underlying ulcers and previous multi-organism bacteraemia and lastly the need for revision due to his underlying end-stage knee osteoarthritis. The likelihood of these occurring are significantly higher than an index population because of his pre-existing comorbid conditions and functional status.”
Dr Huang considered that alternative treatments should focus primarily on nonsurgical options to control Mr Fiord’s diabetes and nutritional status, and a formal assessment of his cognitive status.
Dr Nicklin also considered that Mr Ford’s poorly controlled diabetes with associated peripheral neuropathy and arthrosclerosis would “significantly affect his wound healing capacity.” He reports that the osseointegration wound is more complicated than a standard below knee amputation and it is “highly unlikely” his osseointegration wounds would heal. He refers to the likelihood of infection in the bone which may require further surgery including above knee amputation, and to the potential for “systemic sepsis including diabetic ketoacidosis, “a potentially life-threatening condition”.
Further, Dr Nicklin reported, Mr Ford’s right knee arthritis “will make any weight-bearing through his right leg more painful and significantly limit his potential to weight bear on a prosthesis, whether osseointegrated or socket-based.”
Dr Nicklin agreed that Mr Ford’s cognitive impairment and behavioural disorders are “very concerning”. He said “patients need to be able to adequately care for their prostheses which is clearly not the case” for Mr Ford from the documents sighted.
Dr Nicklin concluded that Mr Ford needed to be “maximally medically optimised before proceeding with this complex surgery and rehabilitation”. He said this has “clearly not been undertaken or seemingly even considered” and, in a complex patient such as Mr Ford this would take months and “is unlikely to get into a point at which the surgery is appropriate”.
It would be disrespectful to Prof Al Muderis to conclude that his treating team has not given consideration to the factors identified by Dr Huang and Dr Nicklin. However, it is not evident from their reports and in particular from Dr Tetsworth’s report.
Dr Negus has provided an independent opinion. He agrees with Dr Huang and Dr Nicklin.
Dr Negus conducted a physical examination of Mr Ford and noted that right knee X-rays showed “residual bony stump, disuse osteoporosis and severe lateral compartment osteoarthritis”. He noted that Mr Ford had been “wheelchair-bound” for the past two years, that he had been assessed for a powered mobility device but deemed “not suitable”. He noted “multiple occasions in the notes” of “poor compliance with staff re wounds and inappropriate behaviour have occurred”.
Dr Negus commented that Mr Ford was “a poor historian, prone to changing the topic of conversation to talk about other unrelated topics, consistent with his dementia. He showed little insight into the state of his health.”
Dr Negus considered there was “no good option” for Mr Ford whom he described as “a very unwell gentleman with a limited life expectancy” and “very poor” current quality of life. Dr Negus agreed that it was highly unlikely that Mr Ford would walk again without the proposed treatment, and that a conventional socket prostheses is not indicated for him because of “his weight, his lack of conditioning, his wound issues and his lack of compliance”.
Dr Negus reports that the likelihood of benefit to Mr Ford from the proposed procedure is very low and the risks are “numerous and life-threatening.” He refers to the need for “a heavy investment “from the patient in terms of commitment and compliance in order for the procedure to be successful and even then complications are very common with superficial wound infections being the most common.” He refers to the “very high risk of wound infection, osteomyelitis and sepsis” which had been “alluded to” in reports from Prof Al Muderis’s team “as they were planning for a femoral osseointegration in the event that the tibial implant failed.” In that case, Dr Negus said, Mr Ford would be subjected to further surgery with all the attendant surgical and anaesthetic risk to his heart and kidneys, and his risk of wound healing issues infection and failure following a second procedure was very high.
Dr Negus said it is accepted that osseointegration procedures require “significant effort and adherence to an intensive rehabilitation program”. He noted the comments from Prof Al Muderis’s team and Dr Tetsworth that Mr Ford’s lack of conditioning is a large part of the reason to do the procedure “presumably to allow him to rehabilitate himself and reduce his medical comorbidities”. Dr Negus observed that Mr Ford has shown himself to be “non-compliant with medical and nursing staff and lacking insight into his medical needs”. While he this was most likely due to his “failing cognitive abilities from his vascular dementia”, it nonetheless remained the case.
Dr Negus reports that Mr Ford’s severe cardiac failure and vascular dementia give him “a significant 5 year mortality risk”. Dr Negus says osseointegration surgery will have no effect on his dementia and therefore cannot impact positively upon his mortality risk, and even if the surgery is successful osseointegration surgery and Mr Ford avoids all the risks as outlined, the “very limited ambulation” that he may recover would not “impact positively in any clinically meaningful way upon his cardiac failure.”
With respect to Dr Tetsworth’s comment that Mr Ford’s quality of life for the remaining time he has will be maximised with the procedure and that it will “dramatically influence the course of Mr Ford’s remaining time on earth”, Dr Negus said it is highly likely to do so in the sense that Mr Ford will need a minimum of one major surgery and in all likelihood, multiple further surgeries and the high likelihood that his remaining time on earth would be spent in hospital being treated for those complications.
Considering all of the evidence,, I prefer the opinions of Dr Huang, Dr Nicklin and Dr Negus. In my view, they have each given careful and detailed consideration to the likely benefit to accrue to Mr Ford against the very real risks that they identify.
The reports from Prof Al Muderis, Dr Ong and Dr Tetsworth focus on osseointegration as Mr Ford’s only prospect of regaining mobility and walking again. There is no dispute about this. However, that is not the end of it. Dr Huang, Dr Nicklin and Dr Negus identify real risks of the procedure, some potentially life-threatening, to Mr Ford. Most significantly, they consider his prospects of successfully undertaking the necessary rehabilitation as low. I accept their opinions.

CONCLUSION

I am not satisfied, on the evidence before me, that Mr Ford has discharged his onus to establish, on the balance of probabilities, that the proposed treatment is reasonably necessary treatment for the purposes of section 60 of the 1987 Act.
It is necessary to say something about the guardianship order made by NCAT on 30 March 2021. It is referred to on the order as “Review of guardianship order” and “Requested review of guardianship order”. The current status of the order is not clear. It may or may not be that the order was renewed with authority given to the Public Guardian or another [person to “make substitute decisions about proposed minor or major medical dental treatment where [Mr Ford] is not capable of giving a valid consent”.
It was agreed early in the proceedings that whether or not another person is required to give consent to treatment on Mr Ford’s is not a matter for these proceedings. In any event, the order operates if Mr Ford is “not capable of giving a valid consent”. The fact that he has been diagnosed with vascular dementia does not mean necessarily that he is not capable of giving consent to treatment. It raises the possibility but there is no evidence before the Commission to support that conclusion.
Finally, it is not correct to say that it can be inferred from the Public Guardian’s attendance at all telephone conferences that the Public Guardian is not opposed to the treatment. It is not clear whether the Public Guardian is still appointed and, in any event, the Public Guardian did not attend and was not involved in the proceedings.

[2022] NSWPIC 119

22 March 2022