Howard and Repatriation Commission
[2007] AATA 1500
•2 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1500
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200500350
VETERANS' APPEALS DIVISION ) Re NEIL HOWARD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date 2 July 2007
Place Brisbane
Decision The Tribunal affirms the decision under review.
.
................[Sgd]...............
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – defence service with Australian Army – applicant suffers from condition of schizophrenia – inability to obtain appropriate clinical management – clinical onset of condition prior to discharge – lack of appropriate clinical management did not make applicant’s condition worse or materially contribute to condition – decision under review affirmed.
Veterans’ Entitlements Act (1986) ss 5D, 70, 120B
Re O’Brien and Repatriation Commission [2003] AATA 525
Brew v Repatriation Commission [1999] FCA 1246Repatriation Commission v Wellington (1999) 57 ALD 507
Comcare v Sahu-Khan [2007] FCA 15
Comcare v Canute (2005) 148 FCR 232
Johnston v Commonwealth (1982) 150 CLR 331REASONS FOR DECISION
2 July 2007 M J Carstairs, Senior Member
1. Mr Neil Howard served with the Australian Army between 1986 and 1989. He now suffers from schizophrenia which he says is related to his this service.
2. There is no dispute that Mr Howard suffers from this condition – this was the agreed diagnosis of all reporting doctors. Mr Howard already has accepted, as being due to his service, two other psychiatric conditions, namely post traumatic stress disorder and depression.
3. Another matter not disputed between the parties is Mr Howard’s three years of eligible defence service, which means that his case falls for determination under s 70 of the Veterans’ Entitlements Act (1986). Section 70 provides for the circumstances in which an injury or disease will be taken to be defence caused. In relation to Mr Howard’s claim, which must be decided according to the reasonable satisfaction standard of proof under s 120(4) of the Act, Mr Howard can rely only upon one provision within s 70, namely the subsection which provides that injury or disease will be taken to be defence caused where it is:
suffered or contracted during any defence service…but did not arise out of that service [but] was contributed to in a material degree by, or was aggravated by, any defence service…[1]
[1] Section 70(5)(d) of the Veterans’ Entitlements Act (1986).
4. There is a Statement of Principles for schizophrenia applying to circumstances of defence service. It is No 133 of 1996. Mr Howard relies upon only one provision set out therein, namely factor 5(d) which states as one possible connection between schizophrenia and defence service:
inability to obtain appropriate clinical management for schizophrenia.
5. The relevance of this expression in the particular Statement of Principles applying for schizophrenia is that (since 1994) it is this expression of a connection with service, based upon sound medical-scientific evidence that must exist before the ultimate question in s 70(5)(d) can be satisfied. Section 120B(3) of the Act provides for this by stating that a decision-maker is to be satisfied that an injury is defence caused only if the evidence raises a connection between injury and service and there is a Statement of Principles that upholds that kind of connection.
ISSUES
6. In previous cases decided by this Tribunal,[2] a framework has been established for considering this particular issue, namely;
§ Did Mr Howard have the condition prior to or during service?
§ Was he unable to obtain appropriate clinical management for it? and
§ Did the lack of appropriate clinical management make the condition worse or materially contribute to the condition?
[2] Re O’Brien and Repatriation Commission [2003] AATA 525.
I have applied that framework of analysis to the facts before me.
BACKGROUND
7. Mr Howard joined the Australian Army at the age of 17, straight from school. He was told he was the Army’s youngest recruit at the time. Mr Howard was posted as a rifleman with 7RAR, but he had additional training as a paratrooper and a signalman. In about October 1987 during a parachute jump he witnessed the death of one of his colleagues whose chute did not open during an exercise. Mr Howard’s post traumatic stress disorder has been accepted on the basis of his experience of this incident.
8. Mr Howard said that not long after this, and certainly by early 1988, he began to notice that his appetite was decreasing and he had difficulty concentrating. He said that it was about this time also that he started hearing voices. He noticed he was less able to carry out his Army duties and he was feeling listless and unable to concentrate. He saw a medical officer when these problems persisted. This medical officer ultimately sent him to see an Army psychologist, Major KE Quinn at 16 Psych Unit.
9. On 6 December 1988 Major Quinn filed the following report:
PTE HOWARD presented as a vague and confused soldier. He showed no insight into the problems he has been having over the last six months. The social withdrawal and loss of effort and energy which have recently characterised his behaviour are consistent with a longer term pattern of erratic performance. He is unable to realistically evaluate his own behaviour and it is unlikely that he will change even with lengthy counselling.[3]
[3] Psychological Report – Army, Exhibit A5.
10. After the interview with Major Quinn, Mr Howard was transferred from his posting in the rifle company into 3 RAR Admin Company, performing the duties of batman to the commanding officer and food steward to the officers’ mess. In the final report, Major Quinn recommended that Mr Howard be discharged as unsuitable to be a soldier.[4] However Mr Howard had later made a written request that he be allowed to remain in the Army until August 1989, the term of his current engagement.[5] This request was supported by his Unit.[6]
[4] Ibid.
[5] Statement by PTE… N.E Howard, dated 17 March 1989, exhibit A5.
[6] Intention to Discharge, dated 17 March 1989, exhibit A5.
11. Mr Howard took his discharge in early August 1989. He was then 20 years of age. Before the end of the same month Mr Howard was admitted as an involuntary patient to Bloomfield Hospital in Orange. He was there diagnosed with acute schizophrenia. What precipitated the admission was that Mr Howard had become uncontrollably violent and psychotic when he returned to live with his family. The medical reports of that admission record Mr Howard as becoming increasingly self-preoccupied and markedly thought-disordered since discharge from the Army.[7]
[7] Discharge Summary, 8 September 1989, exhibit R2.
12. Mr Howard continues on treatment for his schizophrenia, which is reasonably controlled by medication. After he left the Army Mr Howard had brief periods of employment, but nothing recently. He is unable to work in any capacity and receives disability pension.
DID MR HOWARD HAVE SCHIZOPHRENIA DURING HIS SERVICE?
13. Dr D Alcorn, consultant psychiatrist, confirmed the diagnosis of schizophrenia, which he said requires the presence of its identified symptoms for a period of six months. Dr Alcorn said that onset during his Army service was confirmed in Mr Howard’s case because Mr Howard had the symptoms for 6 months prior to Major Quinn’s report in November 1988 and indeed for 6 months before he saw the medical officer in August 1988, and who later initiated the referral to the psychologist. In his oral evidence Dr Alcorn said that he believed that Mr Howard was exhibiting symptoms from late 1987 – but these were the prodromal or precursor symptoms, which help confirm the diagnosis retrospectively, although at the time they first present, it may not be readily apparent that the disorder is in fact schizophrenia.
14. Dr J Gelb agreed that Mr Howard was experiencing the prodrome of schizophrenia during the 6 months before the Army psychologist saw him.[8] Dr Gelb stated that at the time of Major Quinn’s report there were a number of clinical indicators of schizophrenia, and he referred approvingly to the Veterans' Review Board’s observation that an astute clinician would have identified the symptoms correctly when Mr Howard presented to Major Quinn.
[8] Exhibit A2.
15. The evidence points conclusively to Mr Howard having developed schizophrenia during his service - most probably from late 1987 to early 1988.
WAS MR HOWARD UNABLE TO OBTAIN APPROPRIATE CLINICAL MANAGEMENT FOR SCHIZOPHRENIA?
16. The Federal Court has looked at the meaning of inability to obtain appropriate clinical management in Brew v Repatriation Commission [1999] FCA 1246. Merkel J pointed out that “inability” is to be approached as a matter of practical reality rather than by a theoretical approach. The standard of clinical management prevailing at the relevant time is the one to apply, rather than contemporary standards.[9]Whether subjective or objective barriers to obtaining treatment are made out in a particular case depends on the facts of the case.
[9] Repatriation Commission v Wellington (1999) 57 ALD 507.
17. At paragraph [3] of Brew’s case Heerey J stated:
…. “inability” can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force…Clearly the factor operating on the person’s choice would have to be a substantial one before it could be said there was “inability”. How substantial is a question of fact, and not capable of definition a priori.
18. Merkel J, further noted at [30]
In my view it would be erroneous to limit “inability” to “some overwhelming psychological or emotional incapacity”. If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a “condition of being unable” to obtain treatment.
19. With those tests in mind it is necessary to turn to the evidence that can be derived from the service medical records. Unquestionably one of the most important of these was a record of psychological assessment by Major Quinn on 25 November 1988.[10]
[10] Exhibit R4, p 1.
20. It seems that this referral to Major Quinn arose after Mr Howard attended Medical Officer, Capt G Farrow on 8 November 1988.[11] The notes of attendance recorded that Mr Howard had been referred from his Company as unsuitable for the infantry. Captain Farrow noted that Mr Howard was unhappy, wanted to be in Transport, and was not getting on with other soldiers. Captain Farrow marked certain of the boxes on the standard form as follows:
§ Reason for Attendance: Illness – Ticked No
§ He also ticked the box: Fit for Full Duty
[11] Exhibit A5.
21. Captain Farrow noted:
This is not a medical problem, however.
Plan – psychol assessment
– change employment
22. A summary of the main points that can be extracted from Major Quinn’s report dated 25 November 1988 was as follows:[12]
- Reasons for referral: referred by 3RAR medical officer – noticeable change in attitude over last 6/12 “disinterested”’, “vague”, “disoriented and lacks concentration”, “has become a liability and danger to the platoon”, “keeps to himself”
- The report queried: attitude based change or dysfunction?
[12] Exhibit R4, p 1.
23. Major Quinn’s report concluded that Mr Howard was a vague and confused soldier who had no insight into his problems; who had lost interest in work; was socially withdrawal; and was failing in effort and energy. Major Quinn said this was consistent with a longer term pattern of erratic performance. Major Quinn prefaced her recommendation that Mr Howard should be discharged as unsuitable to be a soldier, with the opinion that even with counselling Mr Howard’s behaviour would not improve.
24. Mr Howard’s evidence was that he did well in his initial training at Kapooka, and then was posted to Singleton where he started to experience overbearing treatment from NCOs’, who he said took a dislike to him. Mr Howard maintains that there were incidents of violence against him on several occasions during his Army career. Mr Howard’s Army medical records reflect little about these matters, but there was a notation in Major Quinn’s report that that Mr Howard was regularly attending the RAP with minor injuries, so something out of the ordinary had been noted in that regard. There was one reference on 15 November 1988 to what seemed on its face a more serious injury:[13]
Member involved in a fight 2/52 ago. Kicked in the (R) side several times. Member did not cough/vomit up blood.
[13] Medical Attendance Treatment Report, Exhibit A5.
25. However, Mr Howard said that he did not report incidents for fear of reprisal. Many years later Mr Howard made a formal complaint about bullying and victimisation, which was investigated by RAAF Security Police, but no charges, were laid. I was provided with the record of interview conducted by the Security Police with Mr Howard, but not any final report of this investigation or the reasons for not proceeding with any charges.[14] There were several written statements offering some support for what Mr Howard said about his treatment in the Army. None of the authors of these statements had observed any particular incidents, but some recalled Mr Howard telling them at the time about assaults. One, Sergeant D Kelly, who had enlisted at the same time as Mr Howard, stated that he did recall threats being made and what he referred to as general talk of dislike against Mr Howard.[15]
[14] Ibid.
[15] Statement dated 28 November 2001, T4.
26. Dr Gelb had prepared several reports in relation to Mr Howard, but only one referred to the current claim. His other reports addressed more directly with his previous claims for post traumatic stress disorder and depression. In an earlier report Dr Gelb proffered the opinion that Mr Howard’s schizophrenia was not related to military service.[16] However there was nothing in that report from Dr Gelb that suggested that his attention was drawn to the factor of inability to obtain appropriate clinical management for schizophrenia.
[16] Exhibit A3.
27. In his later report of 16 November 2005 Dr Gelb addressed this question and looked at what happened when Mr Howard was referred to Major Quinn.[17] Dr Gelb referred to Major Quinn’s notation that Mr Howard was vague, smiling inappropriately and appearing unconcerned about his state. Dr Gelb also referred to Major Quinn’s comment that Mr Howard had repeatedly attended at the RAP with minor injuries, tiredness and lack of energy. Mr Howard had told Dr Gelb that he had mentioned hearing voices to Major Quinn, but that was not recorded by Major Quinn, and I note that Mr Howard never told Dr Alcorn that. I greatly doubt that Mr Howard did reveal this symptom to Major Quinn. I take Major Quinn’s record at the time as being an accurate record of reported symptoms, in preference to this recent recollection on Mr Howard’s part.
[17] Exhibit A2.
28. As I have noted, some of these behavioural presentations are now more readily identified as early clinical indicators of schizophrenia. As Dr Gelb summarised these, what Mr Howard presented to Major Quinn was deterioration in multiple areas of psychosocial functioning; lack of insight; social withdrawal; incongruous affect; persecutory ideation; and auditory hallucinations. Dr Gelb said that it …appears that no steps at all were taken to help Mr Howard, and he considered that the …victimisation and assaults that he suffered should be considered a severe enough psychosocial stressor to trigger a schizophrenic illness in a predisposed person.[18]
[18] Exhibit A2.
29. Dr Gelb stated in his report that it was a matter of concern that Major Quinn took no steps to assess Mr Howard’s mental state more thoroughly. Dr Gelb thought that if Mr Howard had been referred to a psychiatrist rather than a psychologist, his schizophrenia would have been diagnosed and treated. Dr Alcorn clearly agreed. Dr Alcorn went further and stated that it was not a psychologist’s role (at that time) to reach psychiatric diagnoses.[19] Nevertheless, Dr Alcorn believed it would have been desirable for Mr Howard to be referred to a psychiatrist, which would have made it more likely that his schizophrenia would have been diagnosed.
[19] Exhibit R1.
30. In oral evidence Dr Alcorn expanded in a number of pertinent ways about the issues of Mr Howard’s clinical management. He made some observations about the effects of the medical officer’s referral notation to Major Quinn to the effect that This is not a medical problem. Dr Alcorn saw this comment as one that would unduly influence an Army psychologist. Whilst he acknowledged that he was not an expert in the area, Dr Alcorn said that as he understood the Army psychologist’s role, it is more varied than that of a civilian psychologist and encompasses recruitment, career development and planning, not merely aspects of psychological well-being. Dr Alcorn said that it would be unusual to ever see in a civilian setting a doctor making a referral to a psychologist accompanied by a notation that it was not a medical problem.
31. Like Dr Gelb, Dr Alcorn said that it was unfortunate that Major Quinn had not seen fit to refer a man with Mr Howard’s presenting symptoms to a specialist for further investigation. He said that there was a list of problems present, and Major Quinn’s response of simply recommending his discharge as unsuitable as a soldier was an unsatisfactory one.
32. Dr Alcorn said that the difference in outcome if Mr Howard had been seen by a psychiatrist rather than a psychologist would have been that a psychiatrist would have withdrawn Mr Howard from the workplace and put him into hospital under observation, say for 3 to 7 days, or for sufficient time as would allow proper conclusions to be reached about whether there was merely a personality difficulty, or real psychiatric issues. Dr Alcorn said that clinicians try to prevent psychotic episodes and try to maintain a person’s functioning. A timely and correct diagnosis would have meant that Mr Howard would be placed on medication much earlier than he was. Dr Alcorn said treatment at that time would have been to prescribe those same medications as were prescribed to Mr Howard the following year at Bloomfield Hospital.
33. I should also mention the report of Dr Athey.[20] Dr Athey was not called to give evidence and there was no indication in his written report that he had been provided with the Statement of Principles for schizophrenia or asked to address the factor relating to inability to obtain appropriate clinical management for the condition. Dr Athey considered that Mr Howard’s schizophrenia was contributed to by his Army service because high levels of stress can precipitate onset and Mr Howard had experienced high stress from violence at the hands of other soldiers, and in the incident involving the death of his friend in the parachute exercise. Dr Athey held the opinion, wrongly in my view when account is taken of Dr Alcorn’s and Dr Gelb’s evidence to the contrary, that the onset of Mr Howard’s schizophrenia was only at the end of his service.
[20] T4
34. On the question of whether Mr Howard was unable to obtain appropriate clinical management, I took into account the practical realities referred to by Merkel J in Brew and the wide meaning of inability given by Heerey J. Importantly, with reference to these matters, Mr Howard was a very young soldier, aged only eighteen in 1987, when the prodromal symptoms of schizophrenia started to emerge. It was clear from his account that he was reluctant to report many things. Once his symptoms became more prominent he must have been less able to manage the practicalities of seeking treatment and would be more reliant upon able clinicians correctly diagnosing his condition.
35. The evidence from both Dr Alcorn and Dr Gelb was that the latter did not occur. The evidence points strongly to the conclusion that Mr Howard was unable to obtain the appropriate form of clinical management. I accept the evidence from Dr Alcorn and Dr Gelb that at the very least the symptoms presented to Major Quinn should have led her to refer Mr Howard for specialist appraisal. Even allowing for possible differences (such as Dr Alcorn suggests exist between the roles of civilian and Army psychologists) that difference only serves to emphasise that the failure to obtain clinical management was related to Mr Howard’s Army service.
36. I think that Dr Alcorn is right to say that the prime factor in mind during the psychological assessment in 1988 was the Army’s needs to retain Mr Howard’s services, rather than Mr Howard’s physical well being. Mr Howard was left to languish for a very long period of time, completely without any medical intervention because of the failure to diagnose his condition. I also take into account Dr Alcorn’s observation that Mr Howard was discharged without any medical follow up and thus allowed to experience the breakdown that led to his involuntary hospitalisation within weeks of discharge.
37. Thus there were both objective and subjective matters in Mr Howard’s case leading to his not receiving adequate clinical management as was required by his condition. In that regard, Mr Howard’s case reflects the circumstances set out in factor 5(d) of the Statement of Principles, in that he had an inability to obtain appropriate clinical management for schizophrenia. On the evidence presented, the inability related to his service on more than one ground:
§ the process of investigation was limited from the start by the medical officer’s remark that this is not a medical problem.
§ both Dr Alcorn and Dr Gelb agree that the Army psychologist should at the least have referred Mr Howard to a specialist;
§ Mr Howard’s circumstances of conflict with others and the elements of victimisation (for which there is sufficient independent corroboration to indicate that it took place in fact) added to his inability to obtain appropriate clinical management.
DID LACK OF APPOPRIATE CLINICAL MANAGEMENT MAKE MR HOWARD’S CONDITION WORSE OR MATERIALLY CONTRIBUTE TO HIS CONDITION?
38. The Statement of Principles sets out that all the factors apply only where there is material contribution to or aggravation of schizophrenia. It is well settled under this legislation that aggravation of a disease must be distinguished from merely aggravation of symptoms and temporary aggravation of symptoms – which will not be sufficient.[21] However there will be cases where the aggravation of symptoms may indicate that there is aggravation of the disease itself.
[21] Repatriation Commission v Yates (1995) 57 FCR 241.
39. In Comcare v Sahu-Khan [2007] FCA 15 Finn J, adopting the conclusions reached by French and Stone JJ in Comcare v Canute (2005) 148 FCR 232, said with respect to compensation matters under the Safety Rehabilitation and Compensation Act 1988, but applying equally in my view under this Act, that the question of material contribution imposes an evaluative threshold below which a causal connection may be disregarded.[22] It requires an evaluation of all relevant contributing factors for the purpose of asking whether Army service did or did not contribute at the necessary threshold level to the ailment, disorder, defect or morbid condition, or the recurrence thereof.[23]
[22] At para 13.
[23] Section 5D(1) of the Act.
40. In Johnston v Commonwealth (1982) 150 CLR 331 the High Court held that the failure to diagnose the disease from which Mr Johnston died was an aggravation of the disease and, as such, was compensable: At 338-9, Gibbs CJ, Mason and Wilson JJ observed:
There is some force in the comment of his Honour in Lucas that `aggravation' signifies `making worse' rather than `becoming worse', a comment reflected in the remarks of Brennan J in the Federal Court in the present case. However, the comment has rather more force when applied to the transitive verb `aggravate' than when it is applied to the noun `aggravation', especially when it is used in a passive sense in the expression `suffers an aggravation'. `Aggravation' may mean `An increasing ... in gravity or seriousness' as well as `being increased, in gravity or seriousness'.
...
The concept of aggravation implies a worsening and therefore predicates a starting-point with which the end result is to be compared. The starting-point which the Commonwealth seizes upon in the passage we have cited from the judgment of Brennan J is `the cancer, an autogenous disease, taking its natural and fatal course'. Given that premise, there was no worsening, in the sense of aggravation, in [the appellant's] case. However, we have difficulty in accepting the initial premise in the form stated. The evidence is that if the cancer had been detected in 1970, treatment could have been given which would have been effective in slowing down, if not entirely stopping, the `natural and fatal course' of the disease. The proper projection of the disease, if detected in 1970, as on the finding of the tribunal it should have been, was no longer a disease `taking its natural and fatal course, unimpeded by timely treatment', but a disease capable of effective medical management. If that be chosen as the starting-point for the consideration of the question of aggravation, it becomes clear that the failure to diagnose and treat the cancer resulted in a worsening or aggravation of the condition when compared with the course which, given timely treatment, it should have taken.
41. So did the failure to obtain appropriate clinical management materially contribute to or aggravate Mr Howard’s condition?
42. These questions were not specifically addressed in Dr Gelb’s written report and he was not available to give oral evidence. Dr Alcorn’s evidence was that if Mr Howard had been offered medication and treatment in 1988 it would not have altered the clinical course now, as to how he is now. He was quite clear that the treatments available for schizophrenia in 1988 were not as good as now available, and that even if Mr Howard had been treated earlier, and had not been left to experience the psychotic episode that led to his involuntary hospitalisation in 1989, this would not have altered the course of his disease. In that regard the scenario in Mr Howard’s case is rather different from that in Johnston’s case. On Dr Alcorn’s evidence, which I accept, if we project from the disease being detected in 1988 (as it should have been) it was not a disease capable of effective medical management at that time, given the several negative indicators that were present. Mr Howard’s schizophrenia would be amenable to treatment with the effective medications now available, but not available 20 years ago.
43. Dr Alcorn was unable to provide a definitive answer to whether the occurrence of the first acute episode that preceded the involuntary hospitalisation (which might not have taken place with adequate psychiatric intervention) could have led to a significant deterioration in the brain. His evidence was that Mr Howard’s prognosis was unaffected by the Army’s failure to manage his condition. According to Dr Alcorn, Mr Howard’s prognosis was not affected in the long run, despite the distress to Mr Howard and his family occasioned by the involuntary hospitalisation – distress which could have been avoided.
44. I was therefore reasonably satisfied that the lack of appropriate clinical management evidenced in Mr Howard’s case neither aggravated nor materially contributed to his schizophrenia.
45. I should say before concluding, that Dr Alcorn also referred to Mr Howard’s schizophrenia as being exacerbated by adverse interactions with Army colleagues, and by his cannabis use. There was sufficient evidence to support Mr Howard’s complaints of some level of victimisation at the hands of others while he was in the Army. There was evidence that he was smoking cannabis to try and fit in, but there was no detailed information about when this occurred. This was not raised as a possible factor in the Statement of Principles. However I merely note in regard to both matters, that Dr Alcorn considered that whilst these might have exacerbated Mr Howard’s schizophrenia, again this was not on a permanent basis.
DECISION
46. The tribunal affirms the decision under review.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed: M J Brazier
Associate
Dates of Hearing 17 January 2007 and 2 March 2007
Final submissions received 29 March 2007
Date of Decision 2 July 2007
Solicitor for the Applicant Mr J Crosby, Justin Crosby Solicitors
For the Respondent Mr B Williams, Departmental Advocate
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