Francis and Department of Veterans' Affairs (Freedom of information)
[2020] AATA 1419
•22 May 2020
Francis and Department of Veterans' Affairs (Freedom of information) [2020] AATA 1419 (22 May 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/1548
FREEDOM OF INFORMATION DIVISION )Re: Ronald Francis
Applicant
And: Department of Veterans' Affairs
RespondentDIRECTION
TRIBUNAL: Deputy President Britten-Jones
DATE OF CORRIGENDUM: 18 August 2020
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by amending paragraph [52] to read as follows:
1. The Respondent contends that the appropriate annotation should be:
Mr Francis contends that this form is incorrect because it does not accurately record the effect of the spinal injury he suffered as a result of falling down a ladder on 26 January 1968, while travelling to Vietnam on board HMAS Sydney. He says this resulted in abnormality to functions relevant to boxes 42 – 46, and 48 on the form and the rating of Category A at box 62 are incorrect. This annotation is made following the decision of the Administrative Appeals Tribunal on 22 May 2020.
[Sgnd]
...................................................................
P BRITTEN-JONES
(Deputy President)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2018/1548
Re:Ronald FRANCIS
APPLICANT
AndDepartment of Veterans' Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:22 May 2020
Place:Adelaide
The decision under review is affirmed.
...................[Sgnd].......................................
Deputy President Britten-Jones
CATCHWORDS
FREEDOM OF INFORMATION – application for amendment of personal records – where the applicant had made previous applications to amend the same document - record of opinion – whether opinion based on mistake of fact – whether author of opinion biased, unqualified or acted improperly in conducting factual inquiries towards formulating opinion – whether the information was incorrect, incomplete, out of date or misleading – what annotation is appropriate - decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Freedom of Information Act 1982 (Cth)
CASES
Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20
Francis and Department of Defence [2004] AATA 33
Francis and Department of Defence [2009] AATA 549
Francis and Department of Defence [2012] AATA 838
Re Rana and Military Rehabilitation and Compensation Commissioner [2008] AATA 558
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80REASONS FOR DECISION
This is an application to amend a document under the Freedom of Information Act 1982 (Cth).[1]
[1] All references to legislation are to the Freedom of Information Act 1982 unless otherwise stated.
The application relates to a ‘Form AF Med 1’ which was completed by a medical practitioner upon discharge of Mr Francis (the Applicant) on 14 July 1972. It has been the subject of numerous similar applications to the Tribunal by the Applicant. Those earlier applications were against the Department of Defence, from where the Form AF Med 1 originated. It is not in dispute that the document is also in the possession of the Respondent and has been used or is available for use by the Respondent for an administrative purpose; consequently, pursuant to s 50, it is a document of the Respondent.
Previous applications with respect to same document
I set out below some details of the earlier proceedings issued by the Applicant and determined by the Tribunal.
In Francis and Department of Defence[2] (Francis [2004]), the Applicant applied for review of a decision that there were no grounds to amend the Form AF Med 1. The Applicant sought to amend items 7, 9 to 61, and 62 of the Form AF Med 1. The application was refused, and the decision was affirmed.
[2] [2004] AATA 33.
In Francis and Department of Defence[3] (Francis [2009]), the application seeking to amend the Form AF Med 1 was refused by the Tribunal.
[3] [2009] AATA 549.
In Francis and Department of Defence[4] (Francis [2012]), the Applicant requested an amendment to the Form AF Med 1 on the grounds that it was incomplete, incorrect, misleading or out of date. The application was refused.
[4] [2012] AATA 838.
A question arises on this application as to the extent that I can inform myself about relevant facts by reference to findings of fact made by the Tribunal in the earlier Francis decisions. The Applicant asserts that this application does not revisit any issues previously determined by the Tribunal. I disagree.
The facts and issues arising in the earlier Francis decisions and those arising in this case are largely the same. The Form AF Med 1 is the same form albeit in possession of a different party.
In Francis [2004], the Applicant contended that the following items, at least, should have been marked “abnormal”:
21. Head, face, neck, scalp
24. Teeth, gums
25. Ears – general
26. Tympanic membranes
39. Upper extremities
40. Lower extremities
42. Spine
43. Posture (standing)
44. Gait
45. Nervous system
48. Emotional stability
49. Mental capacity
He also contended in Francis [2004] that items 33, 51, 52, 53, 54, 56, 57, 58a, 59, 61 and 66 are incomplete; and that item 62 is incorrect and should read ‘Medically Unfit For Naval Service.’
In Francis [2009] the extent of the amendments sought were recorded by the Tribunal in its reasons as follows:
His evidence was that he had a history of an accepted disability which was a cross fracture of the first lumbar vertebra. Particulars of this injury should have appeared in Box 59 of his discharge AF Med 1 or his spine noted as abnormal in Box 42. As to the applicant’s post traumatic depression, he contended that this was now known as post traumatic stress disorder and an abnormal notation should have appeared in Box 49 (“Mental capacity”).
In Francis [2012] the Applicant requested that:
(a)boxes 48 and 49 of the form be amended from “NE” (meaning “not examined”) to “abnormal”; and
(b)box 62 relating to the recommended category be amended from “A” (being a category indicating fit for service anywhere) to “Medically unfit” (or what the appropriate wording was at the relevant time).
The Applicant in the current application seeks amendments to the Form AF Med 1 with respect to the boxes numbered 42, 43, 44, 45, 46, 48, 58, 59, 60, 62 and 66. The effect of the amendments is to:
(a)place a line through “Normal” in boxes numbered 42, 43, 44, 45, 46 and 48;
(b)insert the phrase ‘On available medical and legal accepted medical findings “Normal” cannot be sustained’;
(c)insert at box 59 ‘accepted disability of fractured lumber vertebra under Commonwealth Employee’s Compensation Act 1930 – 1967 and percentages not recorded’;
(d)insert at box 66 ‘the Medical Officer Dr Clarke has been found by the AAT as having acted improperly when forming the facts that led to these findings. No audit referral of the spine was carried out’.
It is apparent that the boxes or items that are sought to be amended by this application are largely the same as in the earlier Francis applications.
Section 33 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides for some flexibility with respect to the procedure to be adopted by the Tribunal in a case like this. Section 33(1)(c) of the AAT Act provides that the Tribunal may inform itself on any matter in such manner as it thinks appropriate. In determining what is appropriate, the Tribunal will give consideration to the Tribunal’s objective of providing a mechanism of review that is, inter alia, fair, just, economical, informal and quick; and that promotes public trust and confidence in the decision‑making of the Tribunal.[5]
[5] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.
In Re Rana and Military Rehabilitation and Compensation Commissioner,[6] the Tribunal:
(a)determined not to revisit findings made by an earlier constituted Tribunal; and
(b)determined instead to inform itself of the relevant matters by reference to the findings of fact made by that earlier constituted Tribunal.
[6] [2008] AATA 558.
The Full Federal Court on appeal in Rana v Military Rehabilitation and Compensation Commission[7] approved this reasoning (subject to certain qualifications) stating at [27] that ‘There must be a limit to the ability of a disappointed party repeatedly to revisit findings once made.’
[7] [2011] FCAFC 80.
Similarly, in Cheung v Administrative Appeals Tribunal,[8] Bennett J observed:
Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course.
[8] (2009) 176 FCR 20 at [49].
That approach is also consistent with the requirement in s 33(1)(b) of the AAT Act that proceedings before the Tribunal:
… shall be conducted with … as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit.
This general approach is not absolute. It is subject to the requirements of procedural fairness and the AAT Act, particularly the requirement in s 39, which imposes upon the Tribunal the obligation to ensure that every party is given a reasonable opportunity to present his or her case.
As the Full Court observed in Rana v Military Rehabilitation and Compensation Commission,[9] that obligation may, in certain circumstances, require that a party be given the opportunity to re-agitate findings of fact with a view to persuading a subsequent Tribunal to reach a finding of fact contrary to the one previously made. Although making clear that it was not exhaustively identifying the circumstances in which a party should be extended that opportunity, the Full Court referred to a number of examples, including ‘… where a party wishes to adduce evidence which was not previously available.’
[9] [2011] FCAFC 80 at [28].
In this case the Applicant has had the opportunity to relitigate but, having done so, no evidence has been presented that would impact upon the findings made by the Tribunal in the earlier Francis decisions. Consequently, those findings should not be altered.
Background Findings
I adopt and repeat the background findings made by the Tribunal in Francis [2004] which I set out below:
[14] It is not in dispute that on 26 January 1968, while travelling to Vietnam on board HMAS Sydney (the Sydney), the applicant suffered a spinal injury as a result of falling down a ladder. He was “medivacced” to RANH Penguin for treatment. A perusal of his medical records indicates that a precise diagnosis of the injury could not be obtained at that time, because of the poor quality of the x-ray results. Subsequent orthopaedic opinion suggests that the applicant suffered a fracture at L1, and disc disruption at L4/5. On 12 March 1968, a medical survey report noted that the applicant suffered from a “Fracture Left 2nd Vertebral Body”. He was classified Category “Y” to remain in Penguin, for 6 months. Physiotherapy was available, and he was placed on light duties [N2/58].
[15] The applicant lodged a claim for workers’ compensation; and as the injury had been variously described, a precise description of the nature of the injury was sought. On 1 August 1968 medical personnel considered that the applicant had suffered a fracture of the first lumbar vertebra. On 1 October 1968, another disability “post traumatic depression” was noted. In relation to his psychiatric health, the applicant had been referred to Dr McGeorge, Consultant Psychiatrist, and on 9 August 1968 Dr McGeorge considered that the applicant’s history of anxiety and depression since discharge from hospital, was attributable to the pain and discomfort he still suffered. Dr McGeorge concluded on 20 August 1968 that the applicant had no serious psychiatric condition, and on 16 October 1968 that “He should settle down eventually”. The applicant was classified Category “B” for the next 12 months.
[16] On 3 July 1969, a further medical survey report noted that “Since September 1968 [the applicant] has been feeling normal. No trouble with back”.. It also recorded that the applicant stated “I feel fine”. He was assessed as suffering from no further disability, and was upgraded to Category “A”. He remained at Category “A” until his discharge in 1972.
[17] In early September 1969 the applicant was involved in a motor vehicle accident, and on 23 September 1969 he was placed under close arrest for contempt. Dr Mitchell, the Surgeon Commander, on 30 September 1969, sought advice from Dr McGeorge, Psychiatrist. His referral and Dr McGeorge’s reply are in the following terms:
“…
30.9.69 Sailor admits to behaviour with contempt (verbally) to 3 leading sailors over two days. Says this was due to ill temper at being involved in a car accident some days previously. He was unconscious for only a matter of seconds and did not seek medical advice at time. The accident will cost him personally over $100 and this and other things seem to be piling up on him.
Your advice as to whether there is any psychiatric aspect to this case in requested please.
J.H. Mitchell
Surgeon Commander
30.9.69 Has been worried about his car which was involved in an accident and his father has been ill. For the past week he has been very irritable hence the outburst which resulted in a charge of “contempt”.. It is true that under stress, financial or otherwise, people do become touchy and explosive.
Twelve months ago I expressed a similar opinion after an accident in which he suffered a crush facture of L1 vertebra body. In view of this I would strongly advise against any further action on the contempt issue. He does not suffer any serious psychiatric condition only an emotional reaction to his circumstances, physical and psychological.
John McGeorge
Consult. Psychiatrist
…” [N 94/95]
[18] There is no record of the applicant being referred for any psychiatric treatment or assessment between September 1969 and 26 April 1972, when he was diagnosed with “anxiety neurosis” at HMAS Nirimba.. Dr Clarke noted [N/112] that the applicant had suffered 2 similar episodes, that he was married now, and that since one week after the wedding his wife has been “… nagging him that he must leave the Navy. She cleared out last night because she wants him out of the navy. At the moment he is in the middle of a classic anxiety state and very aggressive …”.. Dr Clarke prescribed Valium 5mg. He was reviewed 2 days later on 28 April 1972 when he was noted as feeling better, and again on 15 May 1972 when he was much better, and only taking Valium if required.
[19] In about February 1972 the applicant applied to become a submariner. On 17 March 1972 he was examined by Dr Clarke for “sub suitability” [N3/111], and the category recommended by Dr Clarke was Category “A”. His previous category was noted as Category “A” as at 15 July 1969.
[20] The applicant maintains he was rejected, recalled, and finally rejected for submarine service because of his psychiatric disability. In these circumstances, he asserts his mental health was such that it could not be classified “as normal” at the time of his discharge, and he should have been discharged “Medically Unfit for Naval Service”.. The documentary evidence discloses however that the applicant was recalled for submarine suitability testing, but that the testing was cancelled. A note dated 5 May 1972 reads: “SUBMARINE SUITABAILITY TESTING. CANCEL ME RW FRANCIS” [N3/117]. I am satisfied on the evidence that the applicant was not rejected for submarine service because of his psychiatric condition, and I so find.
[21] On 14 June 1972 the applicant wrote to the Commanding Officer, HMAS Nirimba, in part, as follows:
“I have the honour to request Free Discharge in accordance with Reference RI 0805 due to compassionate circumstances.
2.This discharge application is made in respect of my wife’s mental and physical health.
3.My wife suffers from anxiety, depression and loneliness due to my service in the R.A.N.
4.Her mental condition at present and has been for the past year is very unstable. She lives in fear of my going away and leaving her to fend for herself. She is very prone to emotional upsets. I have it on good authority that she is in need of constant companionship and should not be left for any period of time to her own resources.
5.Her physical health has suffered since the loss of our child in December last year due to a miscarriage. This has also affected her mental instability. My wife steadfastly refuses to have any more children whilst I am serving in the Navy. The doctor attending her at the time informed me the miscarriage was due to her severe nervous condition caused by her emotional anguish concerning my being drafted to sea at the time. So this constant worry of my going away is severely disrupting my married life for I wish to have children now; but she insists that she is not going through what she went through before. The only answer to this situation is for her to be relieved of the constant worry of my going away and leaving her alone.
…
8.This whole situation is also effecting my service career. I find myself irritable with a “I DO NOT GIVE A DAMN” attitude most of the time. I do my job and that’s as far as it goes. I have been past out for my leading hands rate for over twelve months and do not look like getting it at all. This is due to my P.P.1’s. Service life is not the environment for a person with my present outlook. I feel I will not have any peace of mind in my married life until I am discharged from the service.
9.I cannot truly express on paper my desire for a discharge. One would have to live with my wife constantly to understand the gravity of the situation. In my honest opinion, Sir, I cannot go on living this way with out doing something I will be regretting the rest of my life. My wife and my marriage are all that I devote my life to. I will not loose her or let anything like this come between us. I implore you, Sir, to consider this application for a free discharge with the utmost haste!
…” [Exhibit R4]
[22] Lieutenant Commander Bowles commented at the base of the applicant’s letter, that he had inquired carefully into the case, and considered the applicant’s statement to be a true representation of the facts.
[23] On 14 July 1972 the applicant underwent a Medical Discharge Examination. Dr Clarke completed a Medical Examination Record, the AF Med 1 Record, on that day. He endorsed items 21 to 28 and 30 to 47 as “normal”. Items 29, 48 and 49, referring to “visual fields”, “emotional stability” and “mental capacity”, were respectively endorsed “NE” (not examined). Dr Clarke noted at item 60 that the applicant’s previous category was Category “A” as at 15 July 1969, and at item 62 Dr Clarke recorded his recommendation that the applicant be discharged “Cat A subject to x-ray result”. He was referred to radiology “For Chest X-Ray for Free Discharge …” [N3/123]. Dr Donohoo, Radiologist, reported on 14 July 1972 that the applicant’s lung fields were clear, and the pulmonary vasculature was normal, the heart was regular in contour, and was not enlarged.
THE LEGISLATIVE FRAMEWORK
Part 5 of the FOI Act deals with the amendment and annotation of personal records. Section 48 provides as follows:
48 Application for amendment or annotation of personal records
Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.
Section 50 provides as follows:
50Amendment of records
(1)Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b) the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2)The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i)specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii)in a case where the agency or Minister is satisfied that the information is out of date—setting out such information as is required to bring the information up to date.
(3)To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.
The only issue between the parties with respect to ss 48 and 50 is whether the AF Med 1 form is incomplete, incorrect, out of date or misleading.
Section 51 applies where the Agency or Minister decides not to amend a document, in which case there is a provision for an annotation under s 51A.
An important limitation on the powers of the Tribunal to amend records is contained within s 58AA, which provides relevantly as follows:
58AAPowers of Tribunal—limitation on amending records
(1)The Tribunal may, in a decision on an application to the Tribunal under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record that relates to a record of an opinion only if the Tribunal is satisfied of either (or both) of the following:
(a) the opinion was based on a mistake of fact;
(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.
ISSUES
Pursuant to s 58AA(1), the Tribunal may only decide to amend a record if either or both of the conditions in sub-paragraphs (a) and (b) are made out. It is appropriate to consider those conditions first before considering, if necessary, the elements of s 50. Consequently, the issues for the Tribunal to determine are as follows:
(a)whether the Form AF Med 1 is a record of opinion;[10]
(b)if so, whether the opinion is based on a mistake of fact[11] or affected by the author’s bias, lack of qualification or improper action in conducting the factual enquiries leading to the formulation of the opinion;[12]
(c)if it is not an opinion, or if the answer to the above is yes, whether the Form AF Med 1 contains personal information that is incorrect, incomplete, out of date or misleading;[13]
(d)if so, what form any amendment to the Applicant’s personal information should take;[14]
(e)if an amendment is not to be made, what annotation is appropriate.[15]
[10] Section 58AA(1).
[11] Section 58AA(1)(a).
[12] Section 58AA(1)(b).
[13] Section 50(1).
[14] Section 50.
[15] Section 51.
EVIDENCE
The parties consented to the review being determined without a hearing and the Tribunal considered that it could be adequately determined in the absence of the parties. Consequently, pursuant to s 34J of the AAT Act, the Tribunal has carried out the review by considering the documents provided to the Tribunal without holding a hearing. The Respondent filed the T documents on 25 May 2018.
The Respondent provided a statement of facts, issues and contentions dated 9 August 2019 together with further written submissions in reply dated 15 September and 30 September 2019. In addition, the respondent filed an affidavit from Nigel Brian Bunn dated 8 August 2009 and an affidavit from Darrel John Duncan dated 9 August 2019.
Mr Bunn is an assistant director in reviews in the Department of Veterans’ Affairs. In his affidavit he deposed that he had reviewed the Respondent’s records relating to the Applicant, which showed that on 14 December 1993, the AAT made a decision to grant the Applicant a disability pension at the special rate with effect from and including 10 September 1990. The decision was made by consent on 14 December 1993. The pension was granted having regard to the incapacity incurred by accepted disabilities of the fracture of L4-5 vertebrae, wedge deformity of the first lumbar vertebrae and post-traumatic stress disorder. With respect to the AAT decision to award a pension, Mr Bunn said at [11] of his affidavit:
The decision says nothing about whether Mr Francis was able to work in July 1972. While the decision involved a finding that Mr Francis suffered war-caused injuries, which occurred prior to Mr Francis’ discharge from the Navy, it did not require or involve a finding on whether those injuries were causing Mr Francis any incapacity for work at the time of his discharge.
Dr Duncan is the director of strategic clinical assurance in the joint health command of the Department of Defence. He has qualifications in medicine and surgery. He has been provided with a copy of the Form AF Med 1 and he has considered the amendments sought by the Applicant to that form. He concludes in his affidavit that the medical officer assessing the Applicant on 14 July 1972 acted in accordance with the policies and procedures in place at the time and, in particular, with the ABR 1991 which was the relevant procedure manual approved by the Naval Board and which provided guidelines, instructions and advice regarding medical documentation and medical examinations during service.
The Applicant filed a witness statement dated 19 June 2019, a statement of facts issues and contentions dated 12 August 2019, a rebuttal to the Respondent’s witnesses’ affidavits dated 12 August 2019, and further written submissions dated 26, 28 and 30 August 2019 and 17 September 2019 and 2 October 2019. The Tribunal also considered material in the nature of statements and submissions provided earlier by the Applicant dated 6 September 2018, 19 October 2018 and 9 November 2018 and 26 June 2019 and 9 July 2019.
APPLICANT CONTENTIONS
The Applicant contends that it was erroneous to assess him as fully fit with no disabilities recorded in the Form AF Med 1 at the time of his discharge when he suffered injuries before his discharge and has subsequently been found to be entitled to compensation arising from events before his discharge. He submits that:
The AF Med 1 Discharge form dated the 14th July 1972 is historically and factually incorrect and as no disabilities at time of discharge are recorded on the form despite the overwhelming evidential medical history of the applicant at that time and since… and now that disabilities have been accepted then it must be beyond reasonable doubt…
RESPONDENT CONTENTIONS
The Respondent contends that marking the Applicant as “normal” or “category A” as at 14 July 1972 was not incorrect merely because the Applicant has gone on to suffer disabling symptoms. Further, the decision of the AAT in 1993 to grant Mr Francis a disability pension, said nothing about his ability to work in July 1972, and it is open for the Tribunal to conclude that, as at the date of discharge, the Applicant’s functionality was within the normal range for the purposes of the Form AF Med 1. Findings made 21 years after the date of discharge should not detract from the view of matters in 1972.
CONSIDERATION OF ISSUES
I reject the contention of the Applicant that the Form AF Med 1 must be inaccurate or deficient in any respect because of the subsequent decision of the AAT in 1993 to award a pension. The decision of the AAT was by consent and merely records that the parties have reached agreement as to the terms of a decision of the Tribunal which would be acceptable to them and that the Tribunal is satisfied that such decision is within the powers of the Tribunal. There are no findings of fact in the AAT decision that would be binding or of any relevance with respect to the findings of fact that must be made to determine this application. It simply does not follow that because a pension is awarded by the AAT by consent of the parties in 1993 that the Form AF Med 1 was inaccurate.
Record of Opinion
I accept and adopt the finding in Francis [2004] at [33] that the Form AF Med 1 is a record of opinion. I note that Dr Duncan in his affidavit of 9 August 2019 expresses the same view.[16]
[16] Duncan affidavit at [15] and [23] to [24].
Mistake of Fact
The amendments sought reflect an asserted mistake of fact with respect to the findings of ‘Normal’ in the Form AF Med 1. As to whether there was a mistake of fact in the Form AF Med 1, I accept and adopt, mutatis mutandis, the findings in Francis [2004] at [34] to [36] as follows:
[34] The applicant asserts that Dr Clarke based his opinions on mistakes of fact, in that when he endorsed many of the items “normal”, they should have been marked “abnormal”. I am satisfied on the evidence that the question being asked of Dr Clarke was whether aspects of the body were normal, or abnormal, in terms of function; he was not being asked whether they were anatomically normal or abnormal. He formed an opinion that at the time of the examination these aspects of the body were “normal”; and in my view these opinions were not based on errors of fact. In relation to the back condition there was a radiological history in respect of the applicant’s spine, but in terms of what was occurring at the time of the examination there was evidence that he was working in his ordinary duties, and not regularly receiving treatment for the condition at that time. There was a sound basis, in my view, for Dr Clarke’s opinion, that from a functional point of view the applicant’s back was “normal”.
[35] In relation to the applicant’s emotional stability and/or mental capacity at that time which were endorsed “NE”, Dr Clarke, on the evidence, was familiar with the applicant’s history of anxiety, and did not consider it necessary for a full mental state examination to be conducted. This was Dr Clarke’s opinion; and I accept the evidence of Commander McLaren and Dr Luke that in these circumstances an endorsement “NE” was appropriate. I do not consider the absence of a full mental state examination to be a mistake in the procedure that was followed by Dr Clarke. He was of the opinion that such an examination was not necessary, and in my view that opinion was open to him and was not based on an error of fact.
[36] In relation to Dr Clarke’s recommendation that the applicant should be classified Category “A”.. I am satisfied on the evidence that at the time he carried out his assessment there was sound basis for his opinion that the applicant continued to be appropriately classified as Category “A”. There was no mistake of fact.
Further, I accept and adopt, mutatis mutandis, the findings in Francis [2009]:
[28] In relation to his discharge AF Med 1, Mr Francis contended that the cross fracture of the first lumbar vertebra, which was an accepted disability, should have appeared in Box 59 or his spine noted as abnormal in Box 42. In his written Submission, he argued that fractures of the 1st, 3rd, 4th and 5th lumbar vertebrae should be recorded in the AF Med 1. It is clear that there was initial confusion as to which vertebra Mr Francis had fractured in his fall on HMAS Sydney. It appears the confusion arose due to the poor quality of the x-rays available. Evidence of medical examinations submitted by Mr Francis (as annexures to his written Submission) suggested that there were fractures to the 4th and 5th lumbar vertebrae. However, the Tribunal is satisfied that the further x-ray taken on 26 July 1968 (Exhibit R1, T11 at page 60) confirmed a fracture of the first lumbar vertebra only. The AF Med 1 reflected the opinion of the medical officer that, at the time of examination, he did not observe any disability insufficient to cause rejection. There was no evidence to suggest that the medical officer’s opinion was biased, unqualified or affected by any improper process.
[29] Mr Francis contended that Box 59 should also refer to “Post-Traumatic Stress, Acute Anxiety & Anxiety Neurosis”. In the Tribunal’s view, there was no evidence that the applicant was suffering these conditions at the time of the medical examination and that they constituted a disability at that time. As was said by Senior Member Purcell in Re Francis (supra) at paragraph 18:
“There is no record of the applicant being referred for any psychiatric treatment or assessment between September 1969 and 26 April 1972, when he was diagnosed with ‘anxiety neurosis’ at HMAS Nirimba. … He was reviewed two days later on 28 April 1972 when he was noted as feeling better, and again on 15 May 1972 when he was much better, and only taking Valium if required.”
[30] Mr Francis also contended that Box 60, which recorded a medical assessment dated 15 July 1969, was erroneous because it failed to mention the more recent sub suitability assessment on 17 March 1972. The Tribunal notes that, in her decision, Colonel van der Rijt offered the following suggested annotation to Mr Francis’ discharge AF Med 1 to reflect the request to amend the date in Box 60:
“Although the last formal Medical Survey was 15 Jul 69, Box 60 could have referred to the Category recommendation noted in the members Submarine Suitability examination of 17 Mar 72.”
In the Tribunal’s view, the annotation to the applicant’s discharge AF Med 1, in the form suggested by the decision-maker, is appropriate.
Further, I accept and adopt, mutatis mutandis, the findings in Francis [2012]:
[41] I now turn to the AF Med 1 form of 14/7/72. ABR 1991 provides that the AF Med 1 form is to be used to record all medical examinations during service and on discharge. In the case of this examination, the purpose of the examination, recorded in Box 7, was Mr Francis’s “free discharge” from the Navy. The examination followed Mr Francis’s request for discharge on compassionate grounds. His application for discharge is dated 14 June 1972, and is based on his wife’s mental and physical health, which he said was also affecting his service career. As mentioned above, I accept Commodore Rushbrook’s evidence that the medical examination on discharge is not intended to be a comprehensive review of the member’s medical history and circumstances, but rather a military examination to determine whether the member is medically fit to perform his or her duties on that day, in the circumstances of a free discharge request. In these circumstances, … Category A appears to be the most appropriate of the nine categories referred to in ABR 1991. The designation “A” in Box 62 constituted an expression of opinion by Dr Clarke. Unlike the position in relation to the medical examination on 17 March 1972, I am not satisfied that Dr Clarke acted in breach of the Guidelines in ABR 1991 or otherwise acted improperly in conducting the necessary factual inquiries that led to the formation of his opinion. I note further that the AF Med 1 form itself recognised that some functions would not be examined, and there was no obligation, in connection with a free discharge medical examination, to conduct an examination of emotional stability or mental capacity.
(footnotes removed)
Bias, Lack of Qualification or Improper Action
I accept and adopt, mutatis mutandis, the previous findings below that Dr Clarke, the author of the Form AF Med 1, was not biased or appropriately qualified and that he did not act improperly.
In Francis [2004]:
[37] In relation to the balance of s 55(6) of the Act, there was no assertion by the applicant in the course of the Hearing that Dr Clarke was biased, nor did he lead evidence on the topic. On the whole of the evidence there is nothing to suggest that Dr Clarke was unqualified to form the opinion. He was a legally qualified medical practitioner.
[38] Finally, there was no assertion made, nor evidence led, of any alleged improper means or impropriety. The applicant asserted that certain procedures were not followed in the preparation of the Record, but these assertions related to an alleged departure from usual or appropriate procedure – not to any assertion of acting improperly in conducting factual inquiries that led to the formation of the opinion.
[39] I am not satisfied on the evidence that Dr Clarke’s opinion was based on a mistake of fact, or that he was biased, unqualified to form his opinion, or acted improperly in conducting the factual inquiries that led to the formation of the opinion. I am prohibited therefore, by s 55(6) of the Act from making a decision that requires an amendment to the AF Med 1 Record dated 14 July 1972. The applicant cannot succeed in this application.
In Francis [2009]:
[28] … The AF Med 1 reflected the opinion of the medical officer that, at the time of examination, he did not observe any disability insufficient to cause rejection. There was no evidence to suggest that the medical officer’s opinion was biased, unqualified or affected by any improper process.
…
[45] In relation to s 55(6)(c)(ii) of the Act, there was no assertion by the applicant in the course of the hearing that the personal information which was the subject of the FOI Request contained opinion that was biased or where the author was unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formulation of the opinion. With regard to Dr Clarke, a similar finding was made by Senior Member Purcell in Re Francis (supra). Mr Francis asserted that certain procedures were not followed in the preparation of his medical record, but these assertions related to an alleged departure from usual or appropriate procedure.
In Francis [2012]:
[41] … I am not satisfied that Dr Clarke acted in breach of the Guidelines in ABR 1991 or otherwise acted improperly in conducting the necessary factual inquiries that led to the formation of his opinion. I note further that the AF Med 1 form itself recognised that some functions would not be examined, and there was no obligation, in connection with a free discharge medical examination, to conduct an examination of emotional stability or mental capacity.
(footnotes removed)
Conditions in s 58AA Not Satisfied
As I am not satisfied that Dr Clarke's opinion was based on a mistake of fact or that he was biased, unqualified to form his opinion or acted improperly in conducting the factual enquiries that led to him to forming his opinion as set out in the Form AF Med 1, I am prohibited by s. 58AA(1) from amending it. In case I am wrong about that, I will proceed to consider s 50 below.
Personal Information that is Incorrect, Incomplete, Out of Date or Misleading
It is not in dispute that the Form AF Med 1 contains personal information about the Applicant within the meaning of s 4.[17]
[17] Francis 2012 at [5].
I accept and adopt, mutatis mutandis, the findings in Francis [2012] that the information in Form AF Med 1 is not incorrect, incomplete, out of date or misleading.
[25] I find from the evidence and material before me that Dr Clarke did not conduct an examination of Mr Francis’s emotional stability or mental capacity at the time of either of the medical examinations referred to in the AF Med 1 forms. I further find that any inquiries of the kind referred to by Mr Francis would not have constituted an examination of his mental state. The forms are a contemporaneous record made by Dr Clarke of his examinations, and the endorsements “NE” indicate that no examination in relation to Boxes 48 or 49 was undertaken. I am satisfied that in this respect the forms are not incomplete, incorrect, out of date or misleading, and I refuse to make the amendments sought by Mr Francis to those two boxes. …
[26] Mr Francis also argued that Boxes 48 or 49 should have been marked “Abnormal” because of Dr Clarke’s pre-existing knowledge that he had been suffering from psychological disorders. … I have found that Dr Clarke did not examine Mr Francis’s mental state on 14 July 1972, and I further find that the AF Med 1 form of that date was not incorrect on the grounds that Boxes 48 and 49 were not marked “Abnormal”.
…
[41] I now turn to the AF Med 1 form of 14/7/72. ABR 1991 provides that the AF Med 1 form is to be used to record all medical examinations during service and on discharge. … As mentioned above, I accept Commodore Rushbrook’s evidence that the medical examination on discharge is not intended to be a comprehensive review of the member’s medical history and circumstances, but rather a military examination to determine whether the member is medically fit to perform his or her duties on that day, in the circumstances of a free discharge request. … The designation “A” in Box 62 constituted an expression of opinion by Dr Clarke. Unlike the position in relation to the medical examination on 17 March 1972, I am not satisfied that Dr Clarke acted in breach of the Guidelines in ABR 1991 or otherwise acted improperly in conducting the necessary factual inquiries that led to the formation of his opinion.
…
[44] Mr Francis also contended that the AF Med 1 form of 14/7/72 was incorrect in that it showed “Normal” against Box 42 in respect of the spine. … Mr Francis had previously requested an amendment to that box in earlier proceedings. The AF Med 1 form has previously been annotated … and even if I had jurisdiction to determine this aspect, it seems to me once again that Mr Francis’s concerns have been sufficiently addressed by the annotations made previously.
I accept and adopt, mutatis mutandis, the findings in Francis [2009] at [28] to [30] set out above together with the following:
[31] According to Mr Francis, the discharge AF Med 1 was also “incomplete” and “misleading” because it had not been confirmed by a “Confirming Authority” in Box 66. In her affidavit, Captain Rushbrook noted that the medical examination for submarine suitability on 17 March 1972 had not been confirmed by a Confirming Authority in Box 66. Based on her random examination of AF Med 1 forms between 1964 and 1976, it was her deduction that it was not contemporary practice at the time to confirm all medical examinations. In the Tribunal’s view, the absence of confirmation in Box 66 in the applicant’s case did not make his AF Med 1 “incomplete” or “misleading”.
Conclusion
There are no grounds for making any of the amendments sought by the Applicant to Form AF Med 1. The decision under review should be affirmed.
ANNOTATION
Under s 51, the Applicant is entitled to have the Form AF Med 1 annotated if he is unsuccessful in having the document amended. Further, should the Applicant seek to have the document annotated, the Respondent, subject to the nature of the proposed annotation, is bound to annotate the document as requested.[18]
[18] Section 51(1)(b).
The Respondent contends that the appropriate annotation should be:
Mr Francis contends that this form is incorrect because it does not accurately record the effect of the spinal injury he suffered as a result of falling down a ladder on 26 January 1968, while travelling to Vietnam on board HMAS Sydney. He says this resulted in abnormality to functions relevant to boxes 42 – 46, and 48 on the form and the rating of Category A at box 62 are incorrect. This annotation is made following the decision of the Administrative Appeals Tribunal on 22 May 2020.
The Respondent is open to negotiation as to the terms of the annotation and I will give an opportunity to the Applicant to respond with respect to the appropriate form of annotation if so advised.
DECISION
The decision under review is affirmed.
I direct that an annotation be made in the form above, or as agreed with the Applicant.
56. I certify that the preceding fifty five [55] paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
[Sgnd]
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Administrative Assistant Legal
Dated 22 May 2020
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