GBPR and National Disability Insurance Agency
[2022] AATA 451
•16 March 2022
GBPR and National Disability Insurance Agency [2022] AATA 451 (16 March 2022)
Division:GENERAL DIVISION
File Number(s): 2021/2476
Re:GBPR
APPLICANT
National Disability Insurance AgencyAnd
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:16 March 2022
Place:Sydney
The decision under review is affirmed.
...................................[SGD].....................................
Mr S Evans, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – applicant seeking funding for general anaesthetic to be used for dental care – whether general anaesthetic can be funded by the National Disability Insurance Scheme – whether general anaesthetic is a reasonable and necessary support to be included in the applicant’s statement of participant supports – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)CASES
Burchell and National Disability Insurance Agency [2019] AATA 1256
Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706
McGarrigle v National Disability Insurance Agency [2017] FCA 308
NNXF and National Disability Insurance Agency [2019] AATA 5552
Young and National Disability Insurance Agency [2014] AATA 401SECONDARY MATERIALS
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Policy Directive: Oral Health Specialist Referral Protocols, NSW Health
REASONS FOR DECISION
Mr S Evans, Member
16 March 2022
INTRODUCTION
The applicant, GBPR, is a 24-year-old woman who is non-verbal and has Prader-Willi syndrome, autism spectrum disorder, intellectual disability, scoliosis, osteoporosis, GORD, anxiety, obsessive compulsive disorder, post-traumatic stress disorder and abnormal sleep pattern.
GBPR experiences a number of substantial barriers described as behaviours of concern when she visits new places or meets new people. These behaviours include self-harm and dysregulation.
She became a participant in the National Disability Insurance Scheme (‘the NDIS’ or ‘the Scheme’) in 2019.
GBPR lives in a group home and has done so since 2016. At home she receives support on a 1:1 basis. When she accesses the community she requires two people to support her.
GBPR is supported in her decision making by her sister, RE, who is in weekly contact with GBPR’s mother.
On 30 October 2020 a delegate of the CEO of the National Disability Insurance Agency (‘the Agency’) approved GBPR’s statement of participant supports and an NDIS plan was implemented with $667,734.87 in total funded supports. The approved support plan does not include funding for dental anaesthesia costs. On 18 November 2020 GBPR formally submitted a request for internal review of the original decision in which she sought funding for dental anaesthetic costs.
On 15 April 2021 GBPR applied to the Tribunal seeking funding for general anaesthetic costs when GBPR requires dental procedures as a reasonable and necessary support under the criteria in subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’).
On 23 April 2021, the Tribunal found that it had jurisdiction to review the matter as the Agency did not make a decision ‘as soon as reasonably practicable’, as per subsection 100(6) of the Act. The decision under review is therefore a deemed decision to confirm the plan dated 30 October 2020 in accordance with subsection 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) and the Tribunal’s decision in NNXF and National Disability Insurance Agency [2019] AATA 5552.
OUTLINE OF THE SCHEME, LEGISLATION AND RELEVANT PRINCIPLES
Objects
The objects of the Act as set out in section 3 make particular reference to the purpose of the Scheme providing reasonable and necessary supports. Subsection 3(1) provides, in part:
(1) The objects of this Act are to:
…
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; …
The objects are to be achieved by ‘adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability’.
Subsection 3(3) provides that in giving effect to the objects, regard is to be had to, among other things, ‘the need to ensure the financial sustainability’ of the Scheme and the provision of services by other agencies, departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
General principles guiding action under the Act
Section 4 of the Act outlines the general principles guiding actions under the Act. These include affirming that:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
(7) People with disability have the same right as other members of Australian society to pursue any grievance.
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
…
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
…
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
Reasonable and necessary supports
Chapter 3 of the Act outlines provisions for participants and their plans. Section 34 of the Act sets out the criteria for the funding of reasonable and necessary supports:
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Although the phrase ‘reasonable and necessary supports’ is not defined in the Act, its meaning can be determined with the assistance of the provisions referred to above. Guidance was provided by the Federal Court in McGarrigle v National Disability Insurance Agency [2017] FCA 308:
Section 13 expressly indicates that a “support” might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also “support” — whether by way of services or activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding.
…
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”…
All criteria in section 34 must be met for a support to be ‘reasonable and necessary’.
National Disability Insurance Scheme (Supports for Participants) Rules
Sections 35 and 209 of the Act provide for the making of rules in connection with the funding or provision of reasonable and necessary supports, as well as general supports. The relevant rules are contained in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Rules’). As a legislative instrument, the Rules bind the Tribunal in making decisions under the Act. Part 5 of the Rules sets out general criteria for supports and supports that will not be funded or provided.
The Outline contained at rules 2.6 to 2.10 relevantly state:
2.6 Part 3 sets out criteria or considerations that the CEO is to use in deciding whether the CEO is satisfied in relation to some of the matters in paragraph 2.3. These are:
(a) value for money (see paragraph 2.3(c));
(b) whether the support is effective and beneficial (see paragraph 2.3(d));
(c) taking account of the expectations of what is reasonable to expect families,
carers, informal networks and the community to provide in informal
supports (see paragraph 2.3(e));
(d) whether the support is appropriate under the NDIS (see paragraph 2.3(f)).
2.7 Part 4 relates to needs assessments and the use of assessment tools when conducting such assessments.
2.8 Part 5 sets out general criteria for supports, and supports that will not be funded or provided.
2.9 Part 6 provides for other matters, such as how these Rules are to be interpreted.
2.10 Schedule 1 sets out considerations relating to whether supports are most appropriately funded through the NDIS, which is relevant to the matter set out in paragraph 2.3(f).
Paragraph 2.3(f) of the Rules corresponds with paragraph 34(1)(f) of the Act. In relation to this criterion, rules 3.5 to 3.7 of Part 3 relevantly state:
Supports appropriately funded or provided through the NDIS
3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).
3.6 The matters to have regard to are set out under the following headings in the Schedule:
(a) Health (excluding mental health);
(b) Mental health;
(c) Child protection and family support;
(d) Early childhood development;
(e) School education;
…
3.7 Where particular supports are set out in the Schedule as being appropriately
funded or provided through the NDIS, the CEO must still be satisfied of a number
of other matters in order for the supports to be funded or provided (see
paragraphs 2.3(a)-(e) of these Rules and paragraphs 34(a)-(e) of the Act).
Within Schedule 1, rules 7.1 to 7.3 outline considerations when determining if supports are most appropriately funding through the NDIS:
Schedule 1 Considerations relating to whether supports are most appropriately funded through the NDIS
7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Note: The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule, but are given effect to in section 19 of the Act, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.
Health (excluding mental health)
7.4 The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5 The NDIS will not be responsible for:
(a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c) funding time-limited, goal-oriented services and therapies:
(i) where the predominant purpose is treatment directly related to the person’s health status; or
(ii) provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
(d) palliative care.
ISSUE TO BE DETERMINED
GBPR seeks funding for dental anaesthetic as a reasonable and necessary support owing to her disabilities. Whilst dental care is available to GBPR through the health system, GBPR specifically requires general anaesthetic for dental check-ups.
The Respondent contends that the supports GBPR is seeking are provided by the public health system which is the appropriate provider of dental services including those requiring general anaesthetic.
The issue to be determined is whether dental anaesthetic is a reasonable and necessary support under the criteria in subsection 34(1) of the Act.
EVIDENCE
At the hearing I heard from GBPR’s sister and guardian, RE, and Dr Avanti Karve, who is a special needs dentistry specialist.
GBPR (as detailed in her NDIS plan)
In her NDIS plan commencing 30 October 2020 GBPR’s disabilities and behavioural issues relevant to this application are detailed.
GBPR’s primary diagnoses are Prader-Willi syndrome (‘PWS’), autism and severe intellectual disability with extreme self-injurious/aggressive challenging behaviour. She also has a number of medical conditions which require regular reviews and management including scoliosis, GORD and osteoporosis.
GBPR works with a behavioural specialist who is helping to develop an understanding of her behaviours.
GBPR is totally reliant on her carers to plan and carry out her personal care, daily routines and all activities. She requires full assistance with dressing, toileting, bathing and grooming. She requires full assistance to prepare food and drinks appropriately.
She is not able to stay focussed on a task without significant support by way of prompts or engagement from a carer for longer than 10 minutes at a time. She is totally reliant on carers for all planning related to household tasks, time management, outings and day to day decision-making.
When triggered, GBPR may pose a significant risk to herself, her carers and members of the public and therefore staff need to be very familiar and experienced in supporting her.
When travelling in a motor vehicle she is required to use a harness and buckle guard in addition to a standard seat belt. She is sat in the back of the vehicle with an escort at a safe distance to provide reassurance and supervision. Any other participants travelling with her need to be seated out of reach.
Owing to GBPR’s behaviours of concern, pica, lack of safety and stranger awareness and sensory needs, she requires extremely close 2:1 supervision when in the community. She has been known to abscond from carers and she has no road skills or stranger awareness.
Evidence of RE, GBPR’s sister and guardian
RE said GBPR finds it extremely difficult to attend dental appointments and take part in examinations. She is strongly of the view that GBPR requires general anaesthetic to be available as an option when undertaking dental procedures including routine oral health care because of her inability to comprehend the purpose of the process and tolerate the procedure due to her complex disabilities. In an application for internal review relating to a separate NDIS plan, she wrote in part:
I am seeking for [GBPR] the cost of this portion only of her dental care when she has a dental procedure that is for regular preventative oral health care. Members of the community do not have to wait until they have an emergency to receive dental care.
This sort of provision is not available under the health system that only provides medical assistance for those people who have a medical need for the anaesthetic such as an acute dental issue of pain, infection and their oral health presents a risk to their overall health.
I am seeking, for my sister, care to prevent an acute illness occurring. To maintain and keep her in good health as much as possible.
RE confirmed GBPR is currently in receipt of disability support pension and is unable to afford private health insurance.
RE was taken to the NSW Policy Directive – Oral Health Specialist Referral Protocols – which provides that referred patients who hold a valid Centrelink entitlement card, as GBPR does, may be exempt from a service charge for general anaesthesia for dental procedures.
RE acknowledged that dental services are provided to GBPR by NSW Health. However, she contends that general anaesthesia remains a significant component of GBPR’s dental costs.
In correspondence dated 16 July 2020, RE writes that GBPR required dental work estimated to cost $5,000, half of which was to cover the cost of general anaesthesia. General anaesthesia was only being considered because GBPR’s disability prevents her from having the procedures completed in the chair.
In a subsequent statement dated 16 September 2021, RE writes that the cost of the procedure was $6,370 of which $3,500 was related to the cost of administering general anaesthesia.
RE is strongly of the opinion that the provision of funding for general anaesthetic for regular preventative oral care will provide the best outcome for GBPR and also be cost effective for the NDIA. She argues the Agency could spend a greater amount on oral care plans and training for support workers that would be less effective than the care a dentist could provide twice a year, should funding for general anaesthesia be made available.
RE also detailed how GBPR’s disabilities make it particularly difficult to maintain dental health. Her conditions make her prone to dental issues, whilst also making treatment and prevention extremely challenging.
GBPR will not allow support workers to brush her teeth properly or to check her mouth. People with PWS have a high pain threshold and combined with her other conditions, it is unlikely GBPR would self-report symptoms of a dental condition, even if serious.
PWS also means that GBPR has ‘sticky saliva’ making her more prone to dental cavities. People with PWS are also prone to eating anything that is available to them including inedible objects. People with PWS will not always display a fever when they have a significant infection, and consequently an infection may go unnoticed by carers.
RE ensures GBPR has dental checks once or twice a year through a NSW government hospital special care dentist, and pays for her services privately under normal circumstances.
Evidence relating to oral care
In response to questions of the Agency dated 13 August 2021 RE writes:
Due to [GBPR]’s disability, she does not have the capacity to understand why she must brush her teeth twice a day. She is so resistant to other people putting things in her mouth, that it has been a constant struggle her whole life. Due to her PICA, risk of ingestion is a consideration that’s also given to any assistive technologies that have been recommended.
The regional manager of GBPR’s accommodation provider writes that GBPR resides in a group home where staff support her with all aspects of her life including dental hygiene.
In relation to her dental health the regional manager writes that because of her disability, GBPR is unable to comprehend the importance of oral hygiene to maintain her health and wellbeing. Staff must adhere to a series of protocols designed to ensure GBPR’s teeth can be maintained to the best possible standard. The care home manager writes in part:
Staff utilise a electric tooth brush as this is the most suitable and standard way to maintain [GBPR’s] oral health. [GBPR] will often refuse the use of the electric tooth brush, refusing to open her mouth and use the bite block. [GBPR] will oblige with the manual toothbrush and will attempt to brush her own teeth. As [GBPR] has little patience with this personal care, this task needs to be completed accurately as possible while maintaining [GBPR’s] focus this is where her teeth brushing strategies are important for staff to follow and maintain consistency.
[GBPR] is has 1:1 ratio during personal care time which means that staff working with her need to be well trained and confident to complete this task
With this consistent approach and the strategies developed for [GBPR] including the visuals attached to personal care Cady [sic].
[GBPR] has become more tolerant to oral hygiene care. At [GBPR’s] recent dental review in Aug 2021, [GBPR’s] dental team were impressed with the limited plague [sic] build up and the overall state of [GBPR’s] oral health.
RE writes that GBPR’s disabilities make dental visits particularly challenging. GBPR relies on consistency of location, people, time and routines. She requires clear visual communication. She requires that no food is in sight and has special transport requirements. She also requires support from two staff and her mother. She is unable to wait and unexpected delay may result in significant challenging behaviour.
Regarding dental treatment the advice of GBPR’s current behavioural specialist is not to use physical force when seeking to have GBPR comply. GBPR’s psychiatrist has permitted sedation to be administered by her family but not by her carers. PRN sedation is not permitted in order to have GBPR comply with activities such as toothbrushing. RE has approval from GBPR’s psychiatrist to provide an extra dose of Epilim, but it was only approved for administration by her family and has a minimal effect.
RE outlined the process of safely taking GBPR for dental treatment. She said in part:
[GBPR] she exhibits behaviours that would be unsafe inside a moving vehicle, so she has a specialised van that can fit a seating harness, a buckle guard; they've got a protective shield between the cabin and where the drivers sit to prevent them if they do happen to get out of their harness, that they won't be able to jump on the driver during transit. It's got enough room to facilitate escorts, which is a part of her transport behavioural support plan… [T]hat's required every time she needs to go somewhere, and the availability of that special vehicle is also … dependent on the movements of the other occupants of the house, because it is a shared resource. So, typically appointments like dental appointments need to be booked well in advance to make sure that the timings are right for everybody. The support provider does have a special van that moves between houses, as, like, a secondary vehicle. That's not always available, but when it is we utilise that.
RE gave evidence that treatment at the NSW public dental hospital had proven difficult because of the inability to control the environment. RE described the challenges that GBPR faced when she attended the public hospital dental clinic. She explained:
So, there's issues with parking, getting her in the hospital, trying to direct her away from the café that's immediately on your right, getting into admin, dealing with delays, GBPR not understanding delays, potentially getting into scuffles with other patients and other people in the waiting area. So there was all those challenges, and then when we got her in to see the dentist, it was very difficult to keep GBPR still and have her open her mouth, and basically it involved a big song and dance to get her lying back on the chair, getting her distracted long enough for a dentist to try and have a little look inside. And then I raised questions of, all right, how do we go about doing what every ordinary person would have an opportunity to do otherwise, as in when I say ordinary I mean someone without GBPR's disability, and it was put to me that unless she meets this very severe high‑end criteria that, you know, borders on life‑threatening, that no, she wouldn't be eligible for anaesthesia. So this meant that she doesn't get, you know, an appropriate check and clean unless she meets that criteria…
On one occasion GBPR was able to have an x-ray taken on her own and did what she was told and was briefly able to cooperate, an outcome that RE described as ‘remarkable’.
Accessing dental care through the NSW public dental hospital is further complicated by it being busy and open plan. The café is large and difficult to avoid. Due to her PWS when GBPR is in an environment where people are eating or have food she behaves in a way that requires her to be physically restrained and can be dangerous to GBPR and others:
The issues we encountered with the public hospital involved the uncontrollable environment (hospital is always busy, there’s a visible café in the corner, it’s difficult to navigate for new staff, there are almost always unexpected delays and there’s limited parking (often resulting in one staff member having to stay with the car). There was also the issue of long waiting times (you’re not guaranteed to get one check up per year, let alone two) and not being able to select a time when the modified van would be available to take her.
She compared this to the experience of GBPR attending the special care dentistry clinic at the same hospital:
The private clinic is a room in the same hospital. The same issues exist for the public hospital however it was better in the sense that we could have more control over appointment times which facilitated her transport and allowed her to have two appointments a year. The last time we had an appointment here, the dentist was delayed by 40 minutes. [GBPR] had a behaviour in a hallway near some stairs where she was throwing herself on the ground, screaming, crying and trying to strike the walls/floors with her head. It took Mum, myself and a staff member about half an hour to resolve – even with all the visual tools - and we were all shaken and sore afterwards.
Having also received treatment at a private clinic she concluded:
It was universally agreed that this was the preferred option for [GBPR] because it removed all the hazards associated with the hospital environment and allowed for even greater control. The location and dentist is familiar to [GBPR], there is parking within meters of the exam room, and we’re allowed to select times that best facilitate [GBPR’s] access with regard to van/staff availability, and the dentist knows to not have anyone loitering in the waiting room.
Evidence of Dr Avanti Karve, special needs dentistry specialist
Dr Karve is a specialist in special needs dentistry whose focus is on management of patients with intellectual or developmental disabilities, complex mental health and complex medical conditions. She has extensive experience in modifying and adjusting dental treatment planning in conjunction with the broader needs of her patients.
Dr Karve has a special interest in researching the use of general anaesthesia with patients with intellectual and developmental disabilities. Dr Karve initially saw GBPR through the special care dentistry clinic at a NSW public hospital and has been seeing her since 2020 at her private rooms.
Dr Karve has provided a report dated 16 July 2021 and gave evidence that in order to provide comprehensive management and treatment of GBPR’s dental needs, GBPR requires access to general anaesthetic in order to perform a comprehensive assessment. Dr Karve reached this conclusion having exhausted all the behavioural options contained in GBPR’s management plan.
Dr Karve writes that GBPR’s distinct diagnosis entailing PWS, severe intellectual disability and autism spectrum disorder presents unique difficulties for GBPR’s oral care. She concluded that comprehensive care in chair is not possible after trials of desensitising, story board and behaviour support management planning. Access to GBPR’s mouth for assisted daily care is very difficult and GBPR has taste aversions and is very routine based.
Dr Karve writes that a dental consultation with GBPR differs from a patient who does not have a disability in so much as her behavioural challenges result in poor intraoral access. Dr Karve is unable to use diagnostic tools such as a probe, mirror, triplex for drying teeth or x-rays to assess interproximal caries and unable to perform a comprehensive assessment.
She gave evidence that a dental consultation with GBPR requires 3 to 4 people including staff members, RE and her mother. GBPR needs to be coaxed into surgery and onto the dental chair. She is extremely resistant to having her mouth being looked into. Sometimes a person will pin GBPR’s arm or leg to her side. On occasion GBPR may be cooperative in which case only her mother needs to sit with her. Meanwhile another person will try and focus her in one place. This only works if GBPR is in a cooperative state of mind. While this occurs, Dr Karve has a brief opportunity to perform a cursory visual examination with a mouth prop, toothbrush, dental light and mirror.
Dr Karve confirmed as GBPR has distinct needs as she takes medications which can produce a dry mouth. As GBPR has pica she eats things which are not food. Consequently her teeth may break and she is inclined to break caps on her teeth requiring them to be replaced. GBPR’s PWS also has oral manifestations including grinding teeth and damaging them. GBPR has a small mouth, which is common in people with PWS, and limits effective access during dental procedures.
In her written report Dr Karve details the requirements when scheduling a dental appointment. GBPR’s behaviour support plans stipulate she has to have two people when she moves around in the community. The time that is booked for dental service is when there is the least amount of traffic on the roads so GBPR is in the van for the least amount of time. Staff will transport GBPR from home to the surgery in time for her appointment. They cannot spend time in the waiting room as GBPR does not have the capacity to wait. GBPR will move towards anything she likes to take it, eat it or break it. She will touch other people on her way to and in the waiting area.
Dr Karve outlined some of the specific risks for patients with PWS in relation to their oral care which she says also affects the overall health of patients:
So, behaviourally, we often have more difficulties with oral care, so we are more predisposed to the oral biofilm diseases, such as dental caries and periodontal disease. We do have some evidence of enamel hypoplasia and some changes in the formation of tooth enamel and thereby, the defence of that enamel against cavitation or against dental disease. We often also see gastroesophageal reflux and where there is a lot of stomach acid coming up into the mouth, we can see erosion off the enamel and into the dentine, poor salivary flow, as well as a difficulty with … also means that we can be more prone to fungal infections. We know that there is more frequent bruxism or grinding of the teeth and clenching of the jaws and so we can see some tooth wear as well as trauma of the teeth.
Dr Karve practices in both private and public settings. Whilst acknowledging that GBPR is eligible for care through the public system, particularly given her special needs, she observed that the settings and barriers in the public system present challenges:
Certainly, GBPR is eligible for care through the public service, particularly as a patient with a disability pension card and given her specific health needs, she would be eligible for care through a specialist service like the department of special needs dentistry which is I’ve seen GBPR previously through a multi-disciplinary clinic. The difficulty when it comes to a smooth anaesthetic or an anaesthetic where it is going to be least traumatic for GBPR, that sometimes is more difficult to achieve, given the access barriers, logistical barriers, multiple clinicians involved and the difficulty with planning or tailoring a service around an individual need, even when there is the best intention. And we do try very hard through the public services to try and do that for our patients, but it can be more difficult, yes.
Dr Karve contrasted this with the experience of treating GBPR in her private rooms, which was her preferred approach. She said in part:
We’re very lucky that we have, at my private rooms, ground floor direct access in and out of the clinic and we ensure that there’s, you know, very little in terms of other patient flow. We have no waiting time and she comes from her van straight into the clinic and where we try and provide, you know, some degree of music or whatever assists her on the day. We are led very often by her family in that and her mum is usually quite heavily involved in terms of modelling and brushes for GBPR and then it’s my turn. And she allows me to do that. But where I would want a, in terms of a comprehensive oral health assessment in my ability to assess her extraoral tissues, her intraoral gums, skin of the mouth, you know, checking for all of the areas of the mouth, as well as a comprehensive assessment of her teeth, in terms of probing, you know, drying with air or using light source or indeed, taking intraoral radiographs. That is not possible for GBPR, so we acknowledge that it is a optimised but in essence, limited oral assessment that I am able to undertake for her in an outpatient clinic.
Dr Karve gave evidence that general anaesthetic for dental treatment would be available to GBPR through the NSW public hospital system in circumstances where there was a clinical need for treatment under general anaesthesia. She also confirmed that GBPR has been able to access general anaesthesia for dental treatment in the past.
In terms of GBPR’s ongoing dental care, Dr Karve recommends regular visual outpatient reviews with comprehensive management under general anaesthetic when required. General anaesthetic would not be used as a default option for regular assessment, but be available when required.
CONSIDERATION
There is no dispute that dental care is available for GBPR through the public health system. Similarly, there no dispute that the question of access to appropriate dental care arises as a consequence of GBPR’s disabilities.
For GBPR it is submitted that the NSW public health system is not able to provide a safe environment to facilitate a dental appointment that would comply with medical advice whilst allowing for GBPR’s significant behavioural issues resulting from her disability.
Based on the evidence of RE and Dr Karve, I accept that GBPR’s disabilities present multiple challenges for maintaining her oral health through a combination of:
·difficulties in maintaining and performing daily dental hygiene activities;
·an inability to self-report oral infections;
·behavioural issues due to her disabilities;
·resistance to oral inspection and dental procedures; and
·the predilection of people with PWS to dental issues.
Dr Karve recommends GBPR receive dental care through regular comprehensive assessment under general anaesthesia and treatment as required at the same time.
Dr Karve gave evidence that whilst GBPR could be assessed under general anaesthesia in the health system, it would not be possible to have her assessed under general anaesthesia for a routine assessment. In her opinion, dental care is available through the health system, and GBPR is able to access that support as she meets the access criteria, but the support provided through the public health system is not sufficient to maintain her dental health in view of GBPR’s specific circumstances. GBPR’s disabilities also make accessing dental care as provided extremely difficult.
The Respondent contends that dental anaesthetic is not a reasonable and necessary support under the criteria in subsection 34(1) of the Act. Specifically, the Respondent argues that the evidence does not establish that the requirements in paragraphs 34(1)(b) and 34(1)(f) are met.
Paragraph 34(1)(f) requires that the support is ‘most appropriately funded or provided’ through the NDIS and:
… is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Schedule 1 of the Rules sets out the considerations that must be taken into account with deciding whether a support is most appropriately funded through the NDIS and is not more appropriately funded through other general service systems such as NSW Health. Rules 7.4 and 7.5 are directed to the requirement in paragraph 34(1)(f) of the NDIS Act.
It is argued on behalf of GBPR that dental care in this instance should be provided by the NDIS owing to it being related to her ongoing functional impairment. It is submitted that maintaining GBPR’s oral care will facilitate her ongoing capacity to articulate and eat. Further, access to general anaesthetic will aid GBPR in accessing dental care such that she can meet her specific support needs.
Paragraph 34(1)(b) provides that, in order to be considered a reasonable and necessary support, ‘the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation’.
Rule 7.4, provides that the NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living. The Scheme will also be responsible for maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
Having regard for the evidence I do not accept that GBPR has made the case that dental care is related to her ongoing functional impairment such that rule 7.4 applies. Periodic dental appointments are not activities of daily living, and it is proposed that the general anaesthesia would be used only when necessary.
It is also the case that rule 7.4 is appropriately subject to the limitations provided by the more specific provisions in rule 7.5. Paragraph 7.5(a) provides that the NDIS will not be responsible for, amongst other things, ‘the diagnosis and clinical treatment of health conditions…’. Paragraph 7.5(b) provides that the NDIA will not be responsible for ‘other activities that aim to improve the health status of Australians, including…medical specialist services, dental care…preventive health, care in public and private hospitals and pharmaceuticals…’.
The supports sought by GBPR are for dental care and preventative health as well as diagnosis and clinical treatment of GBPR’s teeth. On plain reading, the support which is sought is by operation of rule 7.5, generally not the responsibility of the NDIS.
That said, I acknowledge the shortfalls in the care available to GBPR through the health system. The evidence put on her behalf, particularly that relating to her disabilities and the associated issues in accessing services and receiving dental treatment is accepted.
In Young and National Disability Insurance Agency [2014] AATA 401 (‘Young’) the Tribunal considered whether an oxygen concentrator and an insulin pump were clinical treatment for the purposes of the rules. It decided that each had as its primary purpose the treatment of the applicant’s clearly identifiable health conditions and was more appropriately funded under the general health system. However, the evidence was that the health system did not fund either. The Tribunal said at [41]:
Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS. In our view, s 34(1)(f) reflects the statement of the Productivity Commission… that the purpose of the NDIS is not to respond to any shortfalls in mainstream services…
In Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706 (‘Fear’) the Tribunal similarly found that the NDIS was not intended to respond to gaps in services more appropriately provided under mainstream services.
On behalf of GBPR, it is submitted that since the decisions in Fear and Young, the Agency’s role in providing supports has changed. In support of this proposition the Tribunal is referred to Burchell and National Disability Insurance Agency [2019] AATA 1256 (‘Burchell’). In Burchell the Tribunal considered that paragraph 34(1)(f) was not satisfied if a support was unavailable. Presently, the supports requested by GBPR are provided and available through the health system, albeit with some limitations, relevantly in relation to the use of general anaesthetic for regular dental assessments.
Having regard to the objects and principles of the Act that seek to ensure the long-term financial sustainability of the NDIS, and the Rules that state generally the NDIA will not be responsible for funding dental care or services more appropriately provided though other service systems, I am not satisfied that the supports requested are appropriately funded through the NDIS. As the requirements of subsection 34(1) are not met, the decision under review will be affirmed.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
................................[SGD]........................................
Associate
Dated: 16 March 2022
Date(s) of hearing: 23 September 2021 Advocate for the Applicant: Ms M Mulqueen, Ability Rights Centre Counsel for the Respondent: Ms N Laing Solicitor for the Respondent: Mr A Pascale, NDIA
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