HGLS and National Disability Insurance Agency - [2023] AATA 3192

HGLS and National Disability Insurance Agency [2023] AATA 3192 (10 October 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2022/3331
Re:HGLS
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Mischin
Date:10 October 2023
Place:Perth

1.The application for orders for ‘Confidential Non-disclosure’ dated 24 July 2023 be refused.
2.Unless further ordered, the report of ‘Dr H’ dated 24 October 2022 the subject of this application be limited in its use to proceedings for a review of the decision made by the Respondent on 17 March 2022 and not be used by the Respondent for future planning matters relating to the Applicant.

...........................[Sgd].................................
Deputy President Mischin
CATCHWORDS
PRACTICE AND PROCEDURE – Interlocutory application – application for ‘confidential non-disclosure’ pursuant to s35(3) and s35(4) of the Administrative Appeals Tribunal Act 1975 – whether an independent medical assessment and report should be suppressed – whether Tribunal direction to file and disclose reports ultra vires – whether consent freely given to the independent medical assessment – whether to grant a confidentiality order – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 35
National Disability Insurance Scheme Act 2013 (Cth) s 36
CASES
Andrews and National Disability Insurance Agency [2022] AATA 1532
Andrews and National Disability Insurance Agency [2022] AATA 4399
LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP [2023] FCAFC 24
QDKH v National Disability Insurance Agency [2021] FCAFC 189

SECONDARY MATERIALS
Nil
Deputy President Mischin
10 October 2023

The Applicant in this matter, HGLS, has applied to the Tribunal for a review of a decision made by the National Disability Insurance Agency (NDIA or the Respondent) on 17 March 2022. The application was filed on 23 April 2023. In issue are what reasonable and necessary supports should be funded by the NDIA.
These proceedings have had a long and difficult history. It is unnecessary for the purposes of the immediate application to recount that, although some reference may need to be made to earlier events to give context to the immediate application.
It is sufficient to say that the Respondent has filed a report with the Tribunal, authored by a consultant psychiatrist it had engaged who I shall refer to as ‘Dr H’, and upon which it intends to rely for the purposes of the review. The present interlocutory application by the Applicant is for what she describes as the ‘confidential non-disclosure’ of that report.
To that end, the Applicant seeks orders pursuant to sections 35(3) and 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). They and other material elements of section 35 provide:
(1)…
(2)…
Orders for non‑publication or non‑disclosure
(3)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a)information tending to reveal the identity of:
(i)a party to or witness in a proceeding before the Tribunal; or
(ii)any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b)information otherwise concerning a person referred to in paragraph (a).
(4)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a)relates to a proceeding; and
(b)is any of the following:
(i)information that comprises evidence or information about evidence;
(ii)information lodged with or otherwise given to the Tribunal.
(5)In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a)that hearings of proceedings before the Tribunal should be held in public; and
(b)that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c)that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
The Applicant already has an order made by the Tribunal on 26 July 2022, under section 35(3) of the AAT Act, that until further order:
(a)the name, address or any other information tending to reveal the identity of the applicant must not be published; and
(b)the name of the applicant is to be replaced with the pseudonym HGLS; and
(c)the information specified in paragraph (a) must not be disclosed to any person other than:
(i)the parties, their representatives and any other person directly involved with the preparation and conduct of a party’s case; and
(ii)to the extent necessary, any person whom a party approaches for the purpose of providing evidence in relation to the proceeding; and
(iii)to the extent necessary, any person that a party proposes to call as a witness; and
(iv)members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.
The orders the Applicant now seeks are that:[1]
[1] Applicant’s ‘Application for Confidential Non-Disclosure’ (Applicant’s Submissions) dated 24 July 2023 [4].
The psychiatric report and assessment by [Dr H] dated 24 October 2022, and the full letter of instruction sent to him, must:
i.Not be disclosed to any person including:
1. members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties; and
2. the parties, their representatives, their witnesses, and any other person directly involved with the preparation and conduct of case 2022/3331;
ii. Documents that separately existed before the creation of the letter of instruction (ie: T-Docs and other documents attached to the instruction letter) are not included in this application for an order of non-confidentiality.
1.This section clarified since the Respondents [sic] mendaciously suggested that I had applied to have all records submitted to the Tribunal removed from the proceeding, which is illogical as I collected all of them.
iii. That the files be sealed and restricted to this proceeding in such a way that a copy of the files shall not be provided to the CEO of the National Disability Insurance Agency or their delegates or legal representatives for any purpose to include undertaking any reviewable decision under the NDIS Act 2013.[2] Where such copies may already exist, that they be either sealed and restricted or destroyed so that they will not be reviewed or released to other parties in the future without a valid court or tribunal order.
iv. That the files be sealed and restricted to this proceeding in such a way that a copy of the files shall not be provided to the Tribunal for any purpose to include undertaking any reviewable decision under the NDIS Act 2013.
v. That [Dr H] and mlcoa/MedHealth are instructed to either seal and restrict or destroy their copies of these documents so that they will not be reviewed or released to other parties in the future without a valid court or tribunal order.[3]
[2] I have inferred that the reference to ‘files’ in paragraphs iii and iv are to the report and assessment referred to in the chapeau to her list of orders, ibid.
[3] ‘mlcoa’ is Medico Legal Consultants of Australia, part of the MedHealth group; Dr H appears to have been engaged through it.
In short, it is an application to suppress or, as the Applicant puts it, ‘seal’ the report to prevent its use.[4] The Applicant seeks to have the Tribunal order that the instructions to and assessment and report of Dr H not be disclosed to anyone. As to the Tribunal, the Applicant seeks to suppress the report not only so that the Tribunal is not to have regard to it for the purposes of the merits review before it, but not even to be able to see it. Likewise, the Applicant seeks not only that the Respondent not be able to rely on the report for the purpose of the review, but that even the author of the report not have reference to it. The effect of this appears to be to ensure that the Tribunal is not able to consider what Dr H may have to say about the Applicant.
[4] Applicant’s Submissions [76 a], [100 b], [182], [183], [184], [188 q].
The application by the Applicant for orders raises the question of whether the Tribunal has the power to make orders of the character and as extensive as those sought, and the circumstances in which it should do so. It is one thing for the Tribunal to consider that evidence ought not to be admitted and to make some orders (should they be necessary) to prohibit disclosure and publication; it is quite another for it to suppress evidence to the extent being sought here.
The Applicant’s written submissions in support of the application for confidentiality comprise 99 closely typed pages.[5] Those submissions were supplemented on 16 August 2023 by a further 8 pages of submissions, which she says ‘reinforces’ certain points she had already made.[6] Although the Applicant has for some time objected to Dr H’s report being received into evidence, it is only with these submissions that the Tribunal has been favoured with details of the basis for her objection, and upon which the Tribunal can consider the question.
[5] Applicant’s Submissions.
[6] Applicant’s ‘Supplemental Application for Confidential Non-Disclosure’ (Applicant’s Supplementary Submissions) dated 16 August 2023, attached to email from Applicant dated 16 August 2023.
The Applicant’s application for orders in respect of the report presents some challenges. She has sought to have the application determined without presenting oral argument or evidence. This was made plain following correspondence between her and the Tribunal, and is reinforced in her submissions of 24 July 2023 and 16 August 2023:[7]
I consider it preferable for the Tribunal to make an interlocutory decision “on the documents” because I would not be able to attend a hearing without being seriously disadvantaged.
[7] Applicant’s Submissions [190]; Applicant’s Supplementary Submissions [20].
However, the Applicant’s submissions comprise not only submissions on the law, but assertions of fact upon which she bases her arguments. As to the latter, they are not testimony, and cannot be tested. The Tribunal, accordingly, is required to consider the assertions against other, sometimes contradictory, information before it. To the extent possible, I shall determine the request for orders with regard to information that is not controversial or which is supported or uncontradicted by other available evidence.
The Applicant considers that her matter ‘raises novel and complex issues which will require a specially constituted Tribunal to conduct an interlocutory hearing’.[8] I am not persuaded that is the case.
[8] Applicant’s Submissions [189]; Applicant’s Supplementary Submissions [19].
The Applicant’s submissions are extensive and, in many instances, repetitive. However, the argument in favour of the orders she seeks can be distilled down to the following:
(a)On 21 September 2022, Senior Member Collins vacated the hearing of the Applicant’s application for review listed for 28 and 29 September 2022, re-listed it for a hearing ‘on the papers’ for 7 and 8 November 2022, and directed, inter alia, that:[9]
On or before 19 October 2022, the Respondent must give to the Tribunal and the Applicant any expert report/s to be relied upon at the re-listed hearing.
(b)The direction made by Senior Member Collins was illegal or unlawful or ultra vires the Tribunal,[10] was made in bad faith,[11] was coercive of the Applicant,[12] and the product of fraud on the part of the Senior Member, and of a conspiracy between the Senior Member and the Respondent.[13]
(c)Because the Respondent wished to rely upon the report of an independent medical assessment, the illegal, unlawful or ultra vires direction enabled the Respondent to have the Applicant assessed by its choice of psychiatrist – Dr H – without her consent and against her will.[14]
(d)To the extent that the Applicant appears to have consented to an assessment by Dr H, that was not a true and informed consent freely given, but based on mistake and coercion and being under duress:[15] she had made mistaken assumptions due to her not being fully informed,[16] and to her being subject to cognitive impairment and anxiety.[17]
(e)The Applicant attended the assessment by Dr H to ask him to not proceed with an assessment and to not produce a report of his assessment.[18] Dr H, along with others, was operating on the basis of the Applicant’s willing participation, but should have known otherwise: indeed, the Applicant told him that she did not consent to the assessment and to a report being prepared.[19]
(f)In any case, Dr H’s report has no probative value, is factually incorrect, and the conclusions he draws and the opinions he expresses are wrong.[20]
(g)The Applicant has been the victim of conspiracy between the Tribunal and the Respondent, jurisdictional error, bias, fraud, bigotry, procedural unfairness, and discrimination on the basis that she is disabled and a migrant,[21] the only cure for which is to suppress Dr H’s report.[22]
[9] Directions made 21 September 2022 per SM Collins, direction 3.
[10] Applicant’s Submissions [16 a], [16 v vii], [19 g], [23], [30c], [100], [141 ii], [152], [157], [188 o].
[11] Ibid [37].
[12] Ibid at [14], [30 a], [32], [33], [36], [55], [75 h], [100], [101], [118], [141], [152], [157], [188].
[13] Ibid [100], [101 b], [188 o].
[14] Ibid [16 b], [33], [55 a ix 3].
[15] Ibid [55], [188].
[16] Ibid [16 v].
[17] Ibid [16 u], [17 d].
[18] Ibid [16 w], [16 x].
[19] Ibid [16 z], [16 aa], [19 f], [21].
[20] Ibid [55 b].
[21] Ibid [101 b xv].
[22] Ibid [101 b xvi].
Without disrespect to the breadth and detail of the Applicant’s submissions, I consider that they can be summarised as complaints that the assessment and report:
(a)were the beyond the Tribunal’s powers to order;
(b)were done without her consent, and
(c)ought not to be admitted into evidence as they are flawed and unreliable.

Lawfulness of the direction

The Applicant’s submissions in respect of Dr H’s report and the orders she seeks are based on the contention that the direction made by the Tribunal on 21 September 2022 regarding the provision of reports to be relied upon by a certain date was ‘illegal’, unlawful or beyond power, in that it obliged the Applicant to submit to an examination against her will.
The Applicant’s contention is based on a misconception.
Section 33 of the AAT Act provides:
33 Procedure of Tribunal
(1)In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and 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; and
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Decision‑maker must assist Tribunal
(1AA)In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
Parties etc. must assist Tribunal
(1AB)A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
Directions hearing
(1A)The President or an authorised member may hold a directions hearing in relation to a proceeding.
Who may give directions
(2)For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a)where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and
(b)where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
Types of directions
(2A)Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a)require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b)require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c)require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or
(d)limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e)require witnesses to give evidence at the same time; or
(f)limit the time for giving evidence or making oral submissions; or
(g)limit the length of written submissions.
The direction made on 21 September 2022, if only by virtue of section 33(2A)(a), was procedural and wholly within the Tribunal’s powers. It plainly only required the Respondent to file and serve, by a certain date, any reports in its possession upon which it proposed to rely.
The situation here is unlike that in the case of LPSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (LPSP) upon which the Applicant relies.[23] The Tribunal had purported to direct the applicant in that case to attend and participate in a consultation with a forensic consultant psychiatrist for the purpose of preparing a report. The Federal Court considered that the power in section 33 of the AAT Act was limited to directions procedural in nature and ‘a direction that compels interference with the liberty of a party to the proceedings is not readily characterised as a procedural direction.’[24] Accordingly, the powers conferred under section 33 do not include a power to compel an applicant to participate in a medical assessment. The correctness of that view was confirmed on appeal in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LPSP.[25] No such direction was made in this case.
[23] [2021] FCA 1563 per Bromberg J.
[24] Ibid [22].
[25] [2023] FCAFC 24 per Kenny, Wigney and Rofe JJ.
In the matter of Andrews and National Disability Insurance Agency,[26] upon which the Applicant also relies, orders akin to those in LPSP were set aside as conflicting with the judgment in that latter case.
[26] [2022] AATA 1532 per M Thompson.
However, the Tribunal determined that it had a power to stay the proceedings before it pending that applicant voluntarily attending appointments with a bariatric surgeon and an occupational therapist for the purpose of independent assessments. This was because the reports from those assessments would provide evidence which would throw extra light on the issues before the Tribunal and concerning the criteria it would need to consider in its review of the merits of the decision before it.[27]
[27] Ibid [76]-[77].

The question of a stay does not arise in this instance, as a report is available from Dr H. Arguably, if that report were to be suppressed in the manner sought by the Applicant, it may result in a paucity of evidence on the significant question of the Applicant’s condition, and require consideration of orders being made akin to those in Andrews.[28] There is no need to entertain that possibility at this time.
[28] See also Andrews and National Disability Insurance Agency [2022] AATA 4399, where M Thompson declined to set aside his earlier orders as there had been no change in the circumstances that gave rise to them.
The direction of 21 September 2022 required nothing of the Applicant. Accordingly, the assertion that the direction was ‘coercive’, and that the Tribunal had an ‘intention to coerce’ the Applicant into doing something she did not consent to do is untenable.[29] There is no evidence to support the propositions that Senior Member Collins:
(a)‘intended that “pressure be exerted” which would “negate [the Applicant’s] choice”’ by use of a ‘coercive Directions order’;[30]
(b)‘conspired together’ with the solicitor for the Respondent ‘to coerce the production of an independent assessment report’,[31]
(c)used her powers in ‘bad faith’,[32] or
(d)misused her powers ‘at the behest of’ the Respondent’s solicitor[33]
[29] Applicant’s Submissions [29].
[30] Ibid [30].
[31] Ibid [33], [100 vii 9].
[32] Ibid [37], [38].
[33] Ibid [38].
The Applicant asserts that ‘It is unconscionable for ATT staff to conspire to subject vulnerable people seeking a review of a routine administrative decision to medical surveillance for the benefit of Commonwealth officials who also don’t have any statutory authority to collect this information’ [emphasis in original].[34] There is no evidence to support that having happened.
[34] Ibid [39].
The Applicant contends that ‘A refusal to seal this report would create an inherently unjust situation where there is no other practical remedy to address an unlawfully ordered medical report’.[35] As explained above, the premise upon which this is based is incorrect. No medical report was ‘ordered’.
[35] Ibid [100 b I 1 b].
I consider that on 21 September 2022 Senior Member Collins made a commonplace procedural directive calculated to ensure timely disclosure of relevant evidence to the Tribunal and the Applicant. It did not, by its terms, purport to compel, require, authorise, or endorse any examination or assessment of the Applicant, by Dr H or by anyone else. It was not directed to the Applicant. Any mistaken implications the Applicant read into the direction, and any misunderstandings she now asserts she possessed and upon which she acted, cannot be attributed to the Tribunal. Likewise, any complaints by the Applicant of being under compulsion, coercion, under ‘duress’, discriminated against or prejudiced by that direction, are not reasonably sustainable. Nor can the use of the power under section 33 of the AAT Act to make a direction that the Respondent disclose evidence by a set date be said in the circumstances to have been ‘so unreasonable that no reasonable person could have exercised it’.[36]
[36] Ibid [39].
Given that the premise that the direction of 21 September 2022 was unlawful, illegal and beyond power is misconceived, it cannot support an application for orders of the kind sought by the Applicant. It is unnecessary in the circumstances to decide whether such orders are within the Tribunal’s powers to make under section 35.

Lawfulness of the report

In addition to asserting that the Tribunal ordered Dr H’s report ‘unlawfully’, the Applicant contends that it was obtained ‘in contravention of’ the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).[37] The argument in substance is that section 36 of the NDIS Act specifies that the Respondent’s Chief Executive Officer, if requiring information or reports for the purposes of preparing and approving a participant’s plan, must issue a request to the Applicant and follow certain prescribed procedures.
[37] Ibid [39 a].
I have already dealt with the Applicant’s proposition that the direction the Tribunal made on 21 September 2022 was directed to her or required anything from her. It was and did not. The Tribunal was not relying on any power under the NDIS Act, let alone section 36, when it directed the Respondent to file and disclose evidence upon which it proposes to rely.
I do not accept the contention that the Tribunal, in making the direction of 21 September 2022, has acted improperly or beyond power through a failure to comply with the requirements of section 36 of the NDIS Act or its Rules.
Nor, as I understand it, was the Respondent relying on the power to request an assessment or report under section 36. Rather, the Respondent’s lawyers asked the Applicant to participate in an assessment to supply an up-to-date report on her condition in the context of acquiring information that would inform the Tribunal, and sought her consent for that to happen. I deal with the question of consent below.

Lack of consent to Dr H’s assessment and report

In support of her request for orders, the Applicant also asserts that the report was obtained without her true and informed consent.
The Applicant contends, in summary, that to the extent that she appeared to consent to anything, or to cooperate with what was being done, or signed any document signifying consent, it was because she made assumptions based on having been given wrong or insufficiently explicit information, was being subject to coercion and duress, and was experiencing a disturbed state of mind: the latter a combination of cognitive impairment, ‘sleep debt’, stress from suicidal feelings, physical pain, psychological distress, being emotionally overwhelmed, or fear of threats from the Respondent.[38] The Applicant was not told how she could refuse to consent to the report being written or that withholding her consent to the assessment would ‘halt’ the report.[39]
[38] Ibid [16 u vii], [16 v x].
[39] Ibid [16 v], [16 q].
The Respondent in its submissions relating to the application for a confidentiality order contends that the Applicant consented to the assessment and report and that the report is relevant to the application for review, albeit the weight to be ascribed to it is a matter for the Tribunal.[40]
[40] Respondent’s email dated 12 July 2023 [3]-[4].
The Respondent objects to the report being suppressed or excluded from consideration. However, the Respondent is agreeable to it only being used for the purpose of considering the application for review in the present proceedings.[41] The Respondent agrees to the report not being used by it for future planning purposes.[42]
[41] Ibid [5].
[42] Ibid [6].
So far as the question of the Applicant’s consent is concerned, the Respondent points to a chain of email correspondence in the lead up to the assessment and report, comprised of the following [salutations and valedictions omitted].
On 6 October 2022, the Respondent sent an email to the Tribunal, copied to the Applicant, under the subject heading ‘Brief to Expert’, attaching an electronic copy of the brief provided to Dr H of even date. On 10 October the Respondent’s lawyers wrote to the Applicant under the subject heading ‘Evidence from a psychiatrist’:
From the available evidence, we understand you may have been in receipt of support by a Psychiatrist. Could you please, at your earliest convenience, confirm whether you have been, or continue to be, in receipt of psychiatric support? We also ask that you please provide any evidence which may already be in your possession from a Psychiatrist, as soon as possible, and by no later than close of business Wednesday 12 October 2022. Should you not be in possession of any such evidence, we ask that you please inform us in writing.
The Applicant responded by email ‘No?’ and then shortly afterwards wrote ‘I did ask to be assessed in an interview or by Dr [H]. Did you not get that email?’
The Respondent’s lawyers replied
I am not aware that you are seeking assessment by Dr H. I would be grateful if you could please forward any relevant correspondence to me.
Also, can you please advise whether your earlier response means that you are not in possession of evidence by a Psychiatrist?
The Applicant then forwarded to the Respondent’s lawyers an email she had sent the Tribunal and to the Respondent dated 8 October 2022, with the subject line ‘Testing Dr [H’s] evidence/interview’, and reading:
What is the procedure for testing Dr. [H]'s evidence (once he submits it)?
Do I submit further questions for him to answer before the hearing? Will I be given approval to spend plan funding for a final report from a different psychiatrist? Medicare doesn't cover for assessments, so even if I had a way to go through the public system on short notice I couldn't pay for it.
Also, the Respodents [sic] have said: “26. Would your responses have been different if you were able to conduct an in-person assessment of the Applicant?”[43]
[43] This is a reference to one of the questions posed to Dr H by the Respondent’s lawyers in their letter of engagement and is reproduced and answered on page 27 of Dr H’s report dated 24 October 2022.
Dr. [H] *is* able to conduct a video assessment which is nearly as good. I am available for a video interview. I have been assessed by male doctors and health providers.
The Respondent’s lawyers replied:
Thank you for this helpful correspondence. Dr [H] has advised that he will make himself available at 4pm this Wednesday to conduct a telehealth assessment. Can you please advise in writing as soon as possible whether you have availability to attend this assessment via video (details to come)?
Please note, this is Dr [H]'s only availability until late November, early December [emphasis in original].
The Applicant responded:
Yes!!!! I have nothing to do on Wednesdays but I would move it if I did.
If there are other clinical assessments you can assist with I will take them.
As I've said I don't have a GP and so I don't have access to the public health system.
On 11 October 2022, the Respondent’s lawyers emailed the Applicant:
Please see below and attached regarding your scheduled telehealth assessment with Dr Hall on the following date and time:
·This Wednesday 12/10/2022 4:00 PM - 5:15 PM ACT Time
We ask that you please read and consider the below and complete the relevant consent form as soon as possible [emphasis in original].
The Applicant responded: ‘I already did all this. Do I have to do it again?’
The ‘below and attached’ in the email from the Respondent’s lawyers referred to a forwarded email of even date from the Client Service Officer at mlcoa Victoria to the lawyers, acknowledging the booking for the assessment before Dr H, and noting his post-nominal qualifications. It confirmed that the assessment would be via Telehealth video conferencing from the Applicant’s home, what was required, and attached a consent form for the Applicant to complete. It also provided two information sheets, one headed ‘Independent Medical Assessment’ and the other ‘Telehealth: What you need to know about your assessment’. Each contained a range of information. Each invited the person undergoing the assessment to seek further information from the organisation referring them. That for the Independent Medical Assessment made it clear that if her consent was withheld, the assessment could not proceed. The information sheet for Telehealth invited the Applicant to discuss any question she may have regarding its nature or the process with the organisation referring her or by contacting mlcoa directly. Contact details were supplied.
Early on 12 October 2022, the Respondent’s lawyers emailed the Applicant:
Please see below correspondence received regarding your telehealth assessment. As per my previous correspondence to you, you are require [sic] to sign the attached consent form ahead of your appointment this afternoon. We ask that you please sign and complete this form, and provide it to me by reply email. As per the below correspondence, they also require a copy of photo ID. Please be advised that without this information, Dr [H] will not be able to proceed with your assessment [emphasis in original].
The ‘below’ in this instance was an email from mlcoa’s Client Service Officer to the Respondent’s lawyers, reading ‘Please see below login details and attached consent form for [the Applicant] this afternoon’.
The Client Service Officer’s email went on to address the Applicant by name and began
Hello [the Applicant]
As your assessment is happening at Home with Dr [H], please find attached the Consent form that we are needing to be returned back to us with a copy of Photo ID prior to your assessment on 12^th October at 4:00PM.
Without a signed Consent form and a copy of Photo ID we are unable to proceed with the appointment [emphasis in original].
The Applicant responded:
I SENT IT YESTERDAY.
It’s signed.
Dochub [a document hub service] says that it was delivered. I have a screenshot.
Please stop being coy and JUST TELL ME WHAT I’M SUPPOSED TO DO. In one sentence. I don’t know what’s wrong.
A few minutes later, she wrote again:
Form has passport – see screenshot.
Form has signature – see screenshot.
No other form has content.
I DON’T SEE WHAT’S WRONG
Copies of the email correspondence with the Tribunal includes these attachments and a consent form, bearing what purports to be the Applicant’s signature, dated 11 October 2022. In addition to it containing various assessment and personal details, it reads under the heading ‘CONSENT’
I, [HGLS], give consent to undergo this assessment and for MedHealth Pty Ltd (t/a mlcoa) to:
(1)collect, hold and use my personal and health information for the purpose of this assessment;
(2)directly access and review my test results (including radiology or pathology) if relevant to the purpose of this assessment;
(3)contact my treating medical practitioner(s) / allied health professionals if listed below …
(4)…
(5)…
I acknowledge that I have: (1) been provided with access to a copy of the mlcoa Information Privacy Statement that outlines how and why certain personal information about me may be collected, held, used and disclosed by mlcoa; (2) been provided with access to information regarding the purpose of the assessment so that I understand what I am consenting to; and (3) had the opportunity to seek further information as necessary from a representative of mlcoa. …
Dr H’s assessment took place via video conference on 12 October 2022 at 4.00pm. Dr H also spoke to the Applicant’s psychologist on 16 October 2022.
On 17 October 2022 under subject ‘Dr [H’s] report’, the Applicant wrote to the Respondent saying:
Dr. [H]'s briefing letter requested that he provide his report by Friday. It's now EOB Monday.
I made myself available to be interviewed by Dr. [H], as did my Psychologist.
The NDIA hasn't agreed to release funding for another psychiatrist in order for me to test Dr. [H]'s report. Please advise what I'm supposed to do.
On 20 October 2022 the Respondent wrote to the Tribunal requesting an extension of time to file Dr H’s report.
On 23 October 2022 the Respondent wrote to the Applicant in response to an email from her, the other contents of which are not material, in the following terms:
Please be advised that the offer made to you on 20 September 2022 is being reconsidered. The Respondent is awaiting provision of a report by Psychiatrist Dr [H], which will inform their position with respect to the supports you are seeking before the Tribunal.
Following provision of Dr [H]'s report, we will provide you and the Tribunal with a copy. As per your request, the Respondent has agreed to the matter being heard on the papers.
On 23 October 2022, in an email complaining about the Respondent, the Applicant ended with ‘I also request copies of the evidence provided by the NDIA that Dr. [H]'s report has been delayed. It wasn't shared with me.’
In his report of 24 October 2022, Dr H advises that he received a briefing letter from the Respondent’s lawyers dated 26 September 2022. He identifies in the report the documents with which he was provided which, apart from the T-documents filed pursuant to section 37 of the AAT Act, included some 158 other items. Dr H, who styles himself a Consultant Psychiatrist, notes that the Applicant had been referred to him by the Respondent’s lawyers for psychiatric assessment and, based on her medical condition as specified in the referral, confirmed that his speciality was appropriate for the conduct of the assessment. He says that, in doing his assessment, he reviewed the available records and file data and interviewed and examined the Applicant.
Dr H advised that he met with the Applicant via video conference on 12 October 2022 and that the assessment was undertaken by video conference with the Applicant’s agreement, she being located in the Australian Capital Territory and him in Victoria. In doing so, he made a clinical judgment about the suitability of conducting an assessment in that manner and was satisfied that the Applicant’s ‘physical environment and the technological equipment used’ was adequate for undertaking the assessment. He was satisfied that he had been able to assess the Applicant to an adequate standard to which his clinical opinion can be relied upon.
Dr H also noted that, in addition to considering the material with which he had been provided and speaking to the Applicant, he had spoken to her treating psychologist on 16 October.
In his report Dr H recounts the Applicant’s background, based on the reviewed material. He sets out the history he obtained from the Applicant, including her past psychiatric history, and records her presentation and mental state. He considered the diagnoses recorded by the Applicant’s general medical practitioner, occupational therapist, and psychologist. He notes her reported current symptoms and behaviours, and records the Applicant’s current clinical treatment and supports.
Dr H then answers a series of questions that were posed to him by the referring lawyers, including the one referred to by the Applicant in her email of 8 October 2022. In some instances, he declines to comment on a matter as being outside his field of expertise: for example, when asked whether he considered that the Applicant’s psychosocial disabilities have been or are being appropriately treated, he advised that the treatment of psychosocial disabilities is beyond his area of expertise. He does, however, comment on her clinical treatment needs for her psychiatric conditions, and that proper therapy for those would be likely to lessen her psychosocial impairments.
Otherwise, he comments on the paucity of evidence in the materials before him regarding certain diagnoses of the Applicant that seem to the been accepted by her general medical practitioner and treating psychologist, and comments on the treatment she has been receiving.
I have summarised above the bases upon which the Applicant contends that she did not give true and informed consent to Dr H’s assessment and report, and to support her contention that Dr H’s report ‘contravenes the Privacy Act’ – presumably the Privacy Act 1988 (Cth) – in that her consent was neither sought nor freely given for him to undertake an assessment.[44]
[44] Applicant’s Submissions [55 a i].
The Applicant cites the Privacy Principle Guidelines published by the Office of the Australian Information Commissioner, to the effect that:
B.46Consent is voluntary if an individual has a genuine opportunity to provide or withhold consent. Consent is not voluntary where there is duress, coercion or pressure that could overpower the person’s will.
The Applicant contends she was subject to ‘coercion’ by reason of the direction made 21 September 2022,[45] and under ‘further duress’ by being sent updates that the independent assessment had been organised without her agreement.[46] She contends that she was not given a genuine opportunity to withhold consent as the report being sought from Dr H was already being arranged and proceeding before she was asked to be ‘involved’.[47] Further, the Applicant says she was given incorrect information by the Respondent’s solicitor that Dr H had been briefed two weeks before he actually was.
[45] Ibid [55 a iv].
[46] Ibid [55 a v].
[47] Ibid [55 a v 2].

To explain her attendance at the assessment, the Applicant contends that she ‘asked to be interviewed’ by Dr H ‘in order to try to stop the report’,[48] her intention ‘in asking to undertake the assessment [being] to tell the doctor I didn’t want the assessment to proceed and the Directions order was unlawful’.[49]
[48] Ibid [16 w].
[49] Ibid [16 x], [21].
The Applicant claims that she ‘told Dr H at the very start of our interview that [she] didn’t consent to the report’, and that she was ‘distraught’ about consent, but he insisted on her signing consent forms.[50]
[50] Ibid [16 aa].
The Applicant asserts that a male psychiatrist was selected to assess her to disadvantage her,[51] in the knowledge that ‘male voices are traumatic’ for her.[52] She concedes that ‘I ‘said that I could participate in an interview with a male psychiatrist’, but ‘I didn’t say I would be at full mental capacity’ [emphasis in original].[53]
[51] Ibid [16 ff].
[52] Ibid [16 dd].
[53] Ibid [16 gg].
The Applicant says she answered questions she did not want to answer, which she cannot recall, but answered when Dr H ‘insisted’.[54]
[54] Ibid [21].
I have mentioned the limitations inherent in dealing with questions of evidence ‘on the documents’ as the Applicant has requested. However, on the material available to me, including the correspondence exchanged between the Applicant and the Respondent’s lawyers, I am not satisfied that the Applicant was denied a genuine opportunity to withhold her consent to the assessment, that she gave her consent under coercion or duress, or that her will was overpowered. The correspondence between the Applicant and the Respondent’s lawyers is inconsistent with such a scenario.
On the contrary, it seems plain from the correspondence that the Applicant was expecting to be assessed by Dr H, willing to be assessed by Dr H, and expecting and keen to see the report he would prepare. There is nothing in the correspondence evidencing any confusion or reluctance on the Applicant’s part, other than over why she was being asked to provide a signed consent and identification when she had already done so. It seems from the exchanges of correspondence that the Applicant was well aware of what was transpiring, and that if she merely withheld her consent the assessment could not proceed. Her correspondence is consistent with that of someone who, if she had any doubts or reservations, would express them and who was capable and inclined to voice doubts and objections if she had any.
There is no suggestion of any objection to the assessment or any report, until after that report was made available to her.
The Applicant says she participated in the assessment to tell the doctor she ‘didn’t want the assessment to proceed and that the Directions order was unlawful’,[55] and throughout the assessment ‘believed [Dr H] was relying on unlawful Directions order to proceed [sic]’.[56] She says she told him that Senior Member Collins’ direction was unlawful and she did not consent.[57]
[55] Ibid [16 x]
[56] Ibid [23].
[57] Ibid [21], [153], [188 k].
However, none of this is expressed in the email correspondence leading up to the assessment. Instead, the Applicant completed and submitted a consent to an assessment and attended and participated. This is inconsistent with her claim that she regarded the direction to be unlawful and was not afraid to tell Dr H so.
So far as information is concerned, the Applicant contends that the Respondent’s email of 6 October 2022 had a broken attachment to the ‘brief’ to Dr H that she couldn’t open. This appears to have been remedied.[58] The Applicant says of the Respondent’s email of 11 October 2022, which had attached to it the consent form to be completed by the Applicant and the two information sheets, she could only open the consent form: the other documents, she says, were blank or had no ‘content’. That, she says, was what she was referring to in her email in response when she remarked ‘I DON’T SEE WHAT’S WRONG’. The Applicant contends that, accordingly, she did not read the information sheets.
[58] Ibid [16 g].
This may be correct. However, the Applicant’s two emails sent on 12 October in response to the Respondent’s email reminding her of the need to complete the consent form for the assessment to be able to proceed are open to another interpretation: namely, impatience at being asked for something she had already provided. Her first email advises that she sent the completed consent the previous day and had proof of its delivery, concluding her email with ‘I don’t know what’s wrong’. The second almost immediately afterwards, provides that proof of her identity and the consent and, after noting that the other two forms did not have content, ends in the same vein ‘I DON’T SEE WHAT’S WRONG’.[59]
[59] Paragraphs 45-46 supra.
If the Applicant’s comment was an expression of concern relating to her inability to read those two ‘blank’ documents, it could easily have been put more clearly, and she could easily have made her attendance at the assessment contingent upon receiving and reading them: she did not. Instead, the Applicant acknowledged in her signing the consent form that she consented to the assessment proceeding, and that she had been provided access to information about the purpose of the assessment so that she could understand what she was consenting to, and about how information may be collected, held, used and disclosed.
Further, the Applicant in her submissions does not make clear how the information sheets would have made any difference to her participation in the assessment had she read them before she signed the consent form.
It seems from the correspondence that the Applicant, notwithstanding not having read the information sheets, was aware that an assessment was to be conducted. The Applicant was aware that her consent and identity documents were required for the assessment to proceed, and signed and returned the consent form and forwarded those documents. Had she not done so, the assessment could not have proceeded, and the issue of an assessment and report pursuant to what that Applicant regarded as unlawful orders, and to which she did not consent, could not have taken place.
I have addressed the proposition that the Tribunal’s direction was beyond power. In that regard the contention that it was coercive is untenable, particularly as the Applicant contends that she was aware of the alleged invalidity and unlawfulness of the direction all along. If she now says that she felt coerced into doing something that she did not agree with and did not think was lawfully required, it is no fault of the Tribunal. The Applicant’s submissions about the reasoning that informed her apparent consent, and led to her attending the assessment – for example, the assertion that her misunderstanding of the direction led to her being ‘extremely *frightened* by the Directions order and this fear overrode my ability to solve problems’ – requires an exploration of her state of mind that is not capable of being resolved on the papers and without evidence from her capable of being tested.[60] Those submissions are inconsistent with the other material before the Tribunal to which I have alluded.
[60] Applicant’s Submissions [29].
For completeness with respect to the Applicant’s complaint that her consent was not an informed one, she submits that among other things:
(a)The Tribunal ‘Registry staff did not inform me I could refuse the independent assessment or the process for doing so. The AAT failed to meet its common law responsibility for advising self-represented participants about procedural information during a Tribunal hearing’ [emphasis in original].[61]
(b)She was not aware of the ‘Australian Privacy Principles’ and had not read the ‘Privacy Act’.[62]
(c)No one ‘sat down and explained’ her rights to her, or assisted her in understanding ‘what was involved in signing the consent form’. Being a ‘socially isolated migrant who is ignorant of/has difficulties with Australian culture and administrative practices’ no one explained how independent assessments were different in Australia from the United States.[63] She did not know how to exclude from Dr H’s ‘briefing packet’ what she considers to be irrelevant material.[64]
[61] Ibid [16 ii].
[62] Ibid [16 y].
[63] Ibid [16 bb].
[64] Ibid [16 kk].
No authority is cited for such a responsibility. Nor is it plain when such a broad responsibility should arise. So far as the Applicant is critical of the Tribunal, the Tribunal attempts to inform and assist applicants with navigating their way through its processes. But it is hard to see how it could properly assume the role of unsolicited advisor to a party on questions about which it is not asked, or which may not be amenable to unqualified answers.
In any case, the Applicant does not make clear in her submissions how that made any material difference to her being assessed by Dr H, given her view that the direction was unlawful, and that she told Dr H as much and advised him that she did not consent to the assessment.
As mentioned, I am conscious of the limitations in having to deal with this application for orders on the documents before the Tribunal. Nevertheless, I find that they do not support, but contradict or are inconstant with, the reservations or objections that the Applicant asserts she had towards the assessment, and claims she makes about her consent to that and the production of a report. I am satisfied, on the material before me, that she was agreeable to an assessment and the preparation of a report.

Other matters

The Applicant’s submissions traverse subjects which she canvasses in support of the orders she seeks to have made in respect of Dr H’s report.
For example, the Applicant submits that the Tribunal is ‘required to provide a “collaborative” merits review’ process.[65] She cites QDKH v National Disability Insurance Agency[66] among other cases and describes her understanding of how the Tribunal conducts reviews of matters in its Migrant and Refugee Division cases,[67] before submitting that NDIA reviews should be conducted as ‘inquisitorial’ proceedings.[68]
[65] Ibid [55].
[66] Ibid [47], [2021] FCAFC 189.
[67] Applicant’s Submissions [40] et seq.
[68] Ibid [56].
The Applicant makes submissions about whether she bears an onus of proof; whether she is responsible for prosecuting her application for a review on the merits;[69] that the Tribunal is responsible for informing her of ‘the critical issues and adverse information’ in the proceedings and the factors upon which decisions will turn’;[70] and that for a variety of reasons she has been denied procedural fairness. The Applicant complains that she thought (wrongly) that her matter was to be heard by a certain Tribunal member,[71] who she thought would determine the matter on the documents lodged with the Tribunal, and that she has lost a ‘concomitant advantage’ because since then Dr H’s report has been written.[72]
[69] Ibid.
[70] Ibid [56 e]-[56 g].
[71] Ibid [71]-[72].
[72] Ibid [74 f]-[74 g].
The Applicant’s submissions raise other issues and complaints, some of which may bear on whether the report should be admitted into evidence and the weight, if any, to be accorded to it. However, those are questions for another day. In my assessment, they are neither relevant nor persuasive as to whether Dr H’s report should be suppressed as sought by the Applicant, especially in the light of my findings regarding the nature of the direction of 21 September 2022 and the issue of the Applicant’s consent to the assessment and report.

Probative value of report

In addition to her claims that the assessment was conducted, and report prepared, without her consent and over her objections, the Applicant makes lengthy submissions critiquing Dr H’s report on the basis of evidential and other deficiencies. Among them she submits that it is ‘not accurate, up-to-date, complete and relevant’ and ‘lacks any probative value’.[73]
[73] Ibid [55 a xvii], [55 b].
The Applicant argues that the 21 September 2022 ‘unlawful direction’ to the Respondent was for ‘expert reports’,[74] and Dr H ‘was not qualified to provide an “expert” opinion on any matter put before him’;[75] inter alia, psychosocial disabilities or sleep disorders, the ergonomics of smart devices, stimulating creativity or executive function, ear injuries, musculoskeletal conditions, learning difficulties, or neurological conditions and brain injuries.[76] Nevertheless, she criticizes Dr H for not including an assessment of her ‘functional ability/functional impairment’.[77]
[74] Ibid [55 b i].
[75] Ibid [55 b iii].
[76] Ibid [55 b iii].
[77] Ibid [55 b xiv].
Further, the Applicant submits that Dr H himself considered that some of the material with which he had been provided was incomplete and inadequate.[78] He has not provided his curriculum vitae or professional qualifications and his report is ‘made up of supposition, guesses, and speculation.[79] He intermixes facts and option [sic opinion] and doesn’t clearly identify either. … presents fringe opinions that don’t align with mainstream medical practice as if they were medical facts … breached his medical code of conduct by providing opinions and advice outside his scope of practice, making unfounded accusations against other health providers, and using insulting and inflammatory language in his report’.[80] The Applicant alleges that Dr H’s report ‘includes lurid and unsubstantiated speculations and personal attacks against both [her] and [her] past health providers’.[81]
[78] Ibid [55 b v 3].
[79] Ibid [55 b vi].
[80] Ibid [55 b viii]-[55 b xii].
[81] Ibid [76].
I have, of necessity, read Dr H’s report of 24 October 2022. The Applicant does not identify those elements of the report she criticises for language and tone, and I have not been able to identify any passages of the character she describes.
Otherwise, the Tribunal is being asked to reject reception of a report into evidence on the basis of the Applicant’s assertions concerning its provenance, its preparation, and limitations, without her contentions being supported by evidence or that evidence being tested. What the Applicant asserts in criticism of Dr H’s report would be properly the subject of testing by questioning under cross-examination. I am being asked to accept that Dr H’s report is deficient in the manner that the Applicant contends, and to draw conclusions on the basis of her non-testimonial assertions and opinions, without having the opportunity to assess what may be said in response.
This interlocutory application before the Tribunal is for orders for ‘confidentiality’ amounting to a suppression of the report of Dr H. In support of that, the Applicant’s submissions extend to arguing the probative value of the report. The Respondent’s submissions do not address that issue, being focussed on responding to the Applicant’s request for a confidentiality/suppression order. The Respondent should have an opportunity to address and answer that issue in due course.
On 20 June 2023, the Tribunal wrote to the Applicant, as part of a broader response to issues she had raised regarding a variety of topics, as follows in relation to Dr H’s report:
The position appears to be that the Respondent proposes to rely, in support of its case, upon Dr [H]’s opinions as an expert witness. You disagree with Dr [H]’s opinions and assert that there is insufficient, or no, evidential basis for his opinions. That is something that, at a hearing held in the usual manner, can be explored through questioning Dr [H] and by comparison against other evidence. It will be following such testing and evaluation that the weight the Tribunal considers should be afforded Dr [H]’s evidence will be decided. It may result in Dr [H]’s evidence – in whole or part – being given little or no weight, but that is not something that can be decided at this time. I suggest that, unless the Respondent advises that it does not propose to rely on his report, or parts of it, you should proceed on the basis that it will be relying on it. Accordingly, if you wish to answer it with other evidence, you should obtain and present that evidence.
In the event that a decision is made that your application can be decided in the absence of the parties and on the papers, any submissions you make regarding Dr [H]’s report will be taken into consideration in evaluating his report and deciding the weight to be given to his evidence.
That remains the position.
CONCLUSION
I consider that on 21 September 2022 Senior Member Collins made a commonplace procedural directive calculated to ensure timely disclosure of relevant evidence to the Tribunal and the Applicant. It was within the Tribunal’s powers to make. It did not, in its terms, require anything of the Applicant let alone purport to compel, require, authorise, or endorse any examination or assessment of her.
On the material before me, I am satisfied that the assessment and report were prepared with the Applicant’s consent; I am not satisfied on the material before me that it was obtained under an imperfect or mistaken understanding on the part of the Applicant, or that it was obtained under coercion or duress, or by fraudulent or improper means.
I am not satisfied that orders of the character sought by the Applicant to suppress the report, if within the Tribunal’s power, are warranted or justified.
I am prepared to make orders of the nature agreed by the Respondent limiting the use that can be made of the report.
DECISION
The application for orders for ‘Confidential Non-Disclosure’ dated 24 July 2023 is refused, but orders will be made pursuant to section 35 of the AAT Act to limit the use that can be made of Dr H’s report of 24 October 2022 to proceedings for a review of the decision made by the Respondent on 17 March 2022.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for decision of Deputy President Mischin
……………[Sgd]………………
Associate
Dated: 10 October 2023
Dates of the hearing:  13 September 2023
Date of final submissions:              16 August 2023
Representative for the Applicant: Self-represented
Counsel for the Respondent:         Ms C Polese
Solicitor for the Respondent:         MinterEllison