HSPS and National Disability Insurance Agency
[2022] AATA 321
•25 February 2022
HSPS and National Disability Insurance Agency [2022] AATA 321 (25 February 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/2878
Re:HSPS
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:25 February 2022
Place:Sydney
The reviewable decision dated 7 May 2019 is affirmed.
............................................[sgd]............................
Mrs J C Kelly, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME - access to the scheme – whether applicant meets disability requirements – whether diagnosis of ASD was appropriately made – where applicant’s fibromyalgia, osteoarthritis and / or bilateral epicondylitis are permanent under s 24(1)(b) – whether Applicant’s conditions result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, any one or more of the activities in s 24(1)(c) – s 24(1)(c) criteria not met – where provision of early intervention supports is not likely to reduce the applicant’s future needs for supports – decision affirmed
LEGISLATION
National Insurance Scheme Act 2013 (Cth) ss 21, 24, 25
CASES
McFarlane and National Disability Insurance Agency [2018] AATA 4727
Mulligan and NDIA [2014] AATA 374
Mulligan v National Disability Insurance Agency [2015] FCA 544
SECONDARY MATERIALS
Access to the NDIS Operational Guideline
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
25 February 2022
Introduction
On 9 January 2019, the Applicant, HSPS, made a request to the National Disability Insurance Agency (the Agency) to access the National Disability Insurance Scheme (the NDIS).
Her current treating clinical psychologist/clinical neuropsychologist (the treating psychologist) filled out “Section 2: Details of the person’s impairment/s” in the Access Request – Supporting Evidence Form dated 11 April 2019. She listed “Autism Spectrum Disorder – Level 1” as the Applicant’s primary impairment, which was lifelong, and “another impairment”, fibromyalgia, diagnosed by a rheumatologist in 2016. The treating psychologist did not tick any of the boxes in response to the question “Are there early intervention supports that are likely to benefit the person by reducing their future needs for supports?”. She wrote in the adjoining panel under the heading “Details of recommended early intervention supports” “(the Applicant) is an adult”. She ticked a box indicating that she attached a “Vineland Adaptive Behaviour Scale (Vineland-II)”.
The access request was refused because the Applicant did not meet the disability requirements in s 24 of the National Insurance Scheme Act 2013 (Cth) (the Act). She applied for an internal review of that decision. On 7 May 2019, the internal reviewer confirmed the refusal decision. The Tribunal is reviewing that decision.
The law
The access criteria are set out in s 21(1):
When a person meets the access criteria
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
The issues in this case arise under s 24 of the Act, which provides:
Disability requirements
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d) the impairment or impairments affect the person's capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Rules) and the Access to the NDIS Operational Guideline (the Operational Guideline) are also relevant to the determination of this matter.
The Act defines neither “disability” nor “impairment”. In Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’), Mortimer J said at [51].
Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.
The Operational Guideline at [8.1] refers to the definition set out by the Tribunal[1], which was endorsed in Mulligan in the above quotation.
[1] Mulligan and NDIA [2014] AATA 374 at [19].
The issues
It is not in dispute that the applicant has been diagnosed with fibromyalgia, bilateral epicondylitis and osteoarthritis. It is not in dispute that the first two diagnoses satisfy s 24(1)(a) of the Act.
On the first day of the hearing, the Respondent conceded that the Applicant was relying on osteoarthritis which had been diagnosed. Thereafter, the Respondent dealt with those three diagnoses together because they all result in the sensory impairment, chronic pain. It therefore implicitly conceded that the diagnosis of osteo-arthritis satisfied s 24(1)(a) of the Act.
A diagnosis of Autism Spectrum Disorder Level 1 (ASD) is contentious. The Respondent conceded that if that diagnosis were found to be appropriate, ASD is permanent (s 24(1)(b) of the Act) but argued that it did not result in substantially reduced functional capacity (s 24(1)(c) of the Act).
The issues arising under the legislation are:
(i)Was the diagnosis of ASD appropriately made?
(ii)Is the Applicant’s fibromyalgia and/or bilateral epicondylitis and/or osteoarthritis permanent or likely to be permanent within the meaning of s 24(1)(b)?
(iii)Do the Applicant’s fibromyalgia and/or bilateral epicondylitis and/or osteoarthritis and/or ASD (if appropriately diagnosed) result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, any one or more of the activities in s 24(1)(c)?
(iv)Do the Applicant’s fibromyalgia and/or bilateral epicondylitis and/or osteoarthritis and/or ASD (if appropriately diagnosed) affect her capacity for social or economic participation? (s 24(1)(d)), and
(v)Is the Applicant likely to require support under the NDIS for her lifetime in relation to the fibromyalgia and/or bilateral epicondylitis and/or osteoarthritis and/or ASD (if appropriately diagnosed) within the meaning of s 24(1)(e)?
Factual context
The Applicant was aged 60 at the time of the hearing and was living alone in a level access modified social housing dwelling in a coastal town. She moved there about the beginning of 2018 from a rural town where she lived with her adult daughter from April 2014. They had to leave the premises they were renting. Her daughter went her own way and lived with her boyfriend in the rural town. While they lived together her daughter had assisted the Applicant with some tasks. At least by October 2017 the Applicant’s relationship with her daughter was very strained; they were verbally abusive to each other.[2] The Applicant said that she ceased attending Alcoholics Anonymous (AA) after she moved to the coastal town because she was getting panic attacks when she went out and did not want to cry in public.
[2] Mental Health Assessment & Plan dated 9 October 2017, Exhibit R5 p. 7.
Before April 2014, the Applicant had lived in another state. Her father passed away about six months before she left that state.
When she was young, the Applicant lived with her family in an academic institutional environment. The Applicant suffered two child sexual assaults by a medical student when she was aged seven and nine. She was assaulted with an attempted abduction by another person when she was 17. She was subjected to domestic violence during her marriage and fled her home with her daughter who was then about four years old. Thereafter the Applicant was a single parent.
The Applicant told the Tribunal that she had no counselling for the child sexual assaults until about 2000 and had never been told that her difficulties in social situations, what she describes as meltdowns, arise from depression, trauma, and anxiety due to that history of childhood sexual assault.
More recently, in about 2005, she overcame addiction to alcohol with the assistance of AA. She was involved in a theatre group.
An orthopaedic surgeon reported the following on 2 August 2012. The Applicant has worked as a nurse, cleaner and personal carer and has done bar work. She worked for the one organisation for seven years until she suffered a workplace injury in April 2012 while cleaning a client’s house, which resulted in lateral epicondylitis of the left arm. Her symptoms were aggravated by vacuuming, cleaning the bath, opening bottles and jars, lifting a pot or jug of milk, dressing and gardening. She had had a right tennis elbow in November the previous year with a plasma injection. At that time, she was off work for a few weeks but made no workers’ compensation claim
She ceased work in 2013 and has relied on the disability support pension (DSP) since late 2014.
The Applicant first applied for access to NDIS in late 2017. Her then general practitioner (GP) listed her primary impairment as bilateral arm, hand, shoulder and foot pain secondary to fibromyalgia/osteoarthritis and right elbow lateral epicondylitis. He listed other impairments: lethargy, poor appetite and mood change secondary to Hepatitis C, periodic breathlessness due to asthma, and anxiety and depression related to previous traumatic events.
A Mental Health Assessment & Plan dated 9 October 2017[3] included the following information. Her presenting complaint/problems were depression and anxiety, which had been diagnosed six years before. She was “requesting “trauma” counselling ?PTSD”. She was a recovering alcoholic and had been tempted to have a drink two days before the did not because she felt physically unwell. There was a strong history of anxiety and alcoholism in the family. Her nephew was autistic. She had used “a lot of cannabis in the past, experimented with other drugs in teens”. She was being prescribed endone (an opioid) 5 mg tablet once a day. She was applying for NDIS “as struggles with chores”. She was living in the rural town.
[3] Exhibit R5 at p. 7.
The access application was refused on 7 February 2018. The Applicant apparently did not seek an internal review of that decision.
A GP in the coastal area where the Applicant now lives (the coastal practice) referred her to the treating psychologist. The referral was dated 8 February 2018. The GP wrote that the Applicant had a complex medical history “that we are piecing together”, of note, she has significant mental health issues related to traumatic events of her childhood and subsequent years involving abuse and drug misuse. Several counsellors had recommended a trauma specific psychologist. The GP asked for a review under the Mental Health Plan dated 9 October 2017 written by the GP in the rural town.[4] She was prescribed half to one 5 mg endone daily.
[4] Exhibit R5, p. 11.
In a Clinical Psychology Assessment Report dated 4 June 2018, the treating psychologist wrote the following. On initial presentation on 24 April 2018, the Applicant requested formal diagnostic assessment of possible ASD in addition to assistance with anxiety and historical trauma. She was seeking assessment as her nephew had recently been diagnosed with ASD and she recognised a number of similar traits between him and herself. Her older brother had also been diagnosed with ASD some years ago. She expressed a wish for a better understanding of her lifelong difficulties with interpersonal communication and social interaction and a wish to reduce her general anxiety levels.
In addition to her alcohol history, the Applicant told the treating psychologist that she continued to use cannabis to help with ongoing social anxiety and persistent frustration, confusion and low mood arising from her difficulties interacting with others.
In the results section of the report, the treating psychologist wrote that the results from the Relatives’ Questionnaire were unable to be interpreted due to a high level of “Don’t know” responses.
She concluded that the Applicant met the DSM-5 criteria for a diagnosis of ASD.[5]
[5] American Psychiatric Association. (2013). Diagnostic and statistical manual of mental disorders (5th ed.).
On 14 June 2018, a different GP in the coastal practice who had taken over the Applicant’s care, renewed the Applicant’s mental health plan for further visits to the treating psychologist. Endone was not listed as a current medication.
The treating psychologist reported to a GP on 15 June 2018 that session content to date had focussed on diagnostic assessment; psychoeducation regarding ASD, anxiety and trauma and commencement of trauma-related intervention.
In a clinical note dated 7 August 2018, as clarified during cross-examination, the treating psychologist recorded the following. The Applicant wanted medical cannabis prescribed for fibromyalgia and osteoarthritis. She was getting it from someone, but it was not “prescribed”. She smoked cannabis from the age of 13 to 43, as daily as possible. She got clean and sober and was off pot for six years and then she was injured and bullied and put off work. Her life had shrunk since that moment. She said that she had mental addiction to marijuana “at the moment”. The treating psychologist did not agree that that meant that the Applicant was using marijuana daily. She was not sure that it was fully assessed at that point in time.
In a letter sent to the Agency, dated 7 August 2018 and addressed “To Whom it May Concern”, the treating psychologist wrote:
Detailed clinical diagnostic assessment revealed that (the Applicant) meets criteria for an Autism Spectrum Disorder (ASD) in addition to multiple anxiety and traumatic stress-related symptoms. While traumatic stress-related symptoms may be resolved with appropriate treatment, the ASD and corollary anxiety are lifelong conditions that will require ongoing management and adaptation. (Emphasis added).
…
(The Applicant) requires ongoing clinical psychology intervention to properly treat anxiety and trauma-related symptoms. She is not eligible for any further sessions funded through Better Access this calendar year. She would also greatly benefit from ASD specific interventions to assist with building social interaction skills. Increased social interaction ability would greatly benefit (her) mood and anxiety and assist her to pursue vocationally meaningful activities, thereby reducing the overall level of functional disability experienced. Without such intervention, it is likely that (her) adaptive functioning will decline further over time.
In addition to the ASD, (she) reports lifelong difficulties with literacy arising from dyslexia. Her capacity for employment and overall anxiety and self-esteem would be greatly enhanced by intervention to assist with better managing / overcoming these difficulties.
…
In a report to a GP dated 9 August 2018, the treating psychologist wrote that sessions have focussed on psychoeducation regarding autism spectrum, specific interventions for anxiety and social skills, and commencement of EMDR (Eye Movement Desensitisation and Reprocessing) for trauma-related triggers.
In an email dated 21 August 2018, the Applicant requested the removal of the reference to cannabis from the 4 June 2018 report because it could “bring me many problems with Centrelink, NDIS and getting a service dog”. The Applicant also said that her use of cannabis “this time around” was also to control pain. She originally picked it up again to control pain and anxiety after injury at work. In an email of the same date, the treating psychologist replied that there was no mention of cannabis or alcohol in the “NDIS letter.” She also advised the Applicant of the appropriate steps to get a therapy dog. In a later email, she said that the diagnostic report was intended for clinical use and “NOT the NDIS”.[6]
[6] Exhibit R6, p 7.
On 26 September 2018 another GP in the coastal practice sent a referral to the treating psychologist. He had reviewed the Applicant and considered that she should re-engage with therapy. The Applicant’s current medications included 5 mg Endone “1 p.r.n” (as needed). He wrote:
(The Applicant) is currently struggling with the NDIS application process which is on hold until mid-late October. Given the nature of ASD, (she) is working hard to deal with the delay but is currently very focussed on getting that process through as quickly as possible.
On 7 January 2019, the treating psychologist wrote in her clinical note:
Reporting high level of frustration with GPs re NDIS application taking 12 extended billed medicare sessions and still has not been submitted. Also frustrated that (Doctor) declining to prescribe endone, however also not offering alternatives, and realising that any other pain management like physio cannot be accessed at present as NDIS not completed.
As clarified during cross-examination about that clinical note, the Applicant was looking at going through the national redress scheme for childhood sexual assault. They had “negotiated” to recommence EMDR for childhood trauma and include questions about whether to go through redress in the processing.
By 11 April 2019, the Applicant had transferred her medical management to her current treating GP (the treating GP). He prescribed endone 1 table 5 mg as needed.
In a letter dated 18 July 2019 addressed to “To Whom It May Concern”, the treating psychologist stated that she had diagnosed the Applicant with ASD Level 1.
With the arrival of Covid-19 in about March 2020, the Applicant’s two brothers and their wives did not drop in to see her.
Issue (i) Was the diagnosis of ASD appropriately made?
Background
The Respondent argued that I cannot be satisfied that the diagnosis of ASD by the treating psychologist has been appropriately made for a number of reasons.
The treating psychologist had made the diagnosis by 4 June 2018 when she wrote the Clinical Psychology Assessment Report of that date, following three one-hour sessions with the Applicant. She conceded that the behavioural observations on which she relied were not set out in the report, other than in relation to the “mind’s eye test”.
The treating psychologist wrote two reports for the present proceedings dated 17 September 2019 and 18 June 2020. She produced material under summons on 27 November 2019[7] and 19 April 2021[8] and gave oral evidence on 13 April 2021 and on 26 May 2021 after the return of the second summons which related to clinical notes which I had ruled in January 2019 should not be made available to the Respondent. She had had 45 sessions with the Applicant as of 13 April 2021. Each session lasted for 50 to 60 minutes.
[7] Exhibit R5.
[8] Exhibit R6.
On the second day of the treating psychologist’s evidence, she explained that having understood that “credit” referred to not crediting her evidence, she had reviewed her records from the early appointments because during the first day of evidence, her impression was that she would be giving evidence about the report she had written for the proceedings which was in a question an answer format and set out her opinion about an occupational therapist’s report. She was unaware that her diagnosis would be questioned. She said that she had not intentionally withheld information from the tribunal nor given misleading information. She thought her memory of the earlier appointments was inaccurate during cross-examination on the first day. She had sent the relatives’ questionnaire to the Applicant’s aunt and not to the Applicant’s brother. She confirmed that the questionnaire was not valid, as she had previously said.
Below is a summary of the evidence going to the reasons the Respondent argued I would not be satisfied that the diagnosis of ASD had been appropriately made. The Applicant relied on the privilege against self-incrimination and was not cross-examined about her use of cannabis.
Trauma and PTSD
The Applicant denied that having her access application refused in 2017 was causally related to her asking the treating psychologist to assess her for ASD or that she read up about it to understand the condition and its symptoms. She accepted that her nephew had been diagnosed with ASD before her first access application had been denied. She accepted the possibility that she may be confusing the sequence of events in her childhood memories but did not think she was. She described difficulties she had at school that occurred before the first sexual assault.
The treating psychologist told the Tribunal that she has experience diagnosing ASD in adults. She has diagnosed between five and 10 adults in their fifties with ASD. When asked how many people she had treated for ASD, she could not say without reference to her clinical records. In broader terms, she said that “it’s quite a bit” in her current practice and she has a lot of background in drug and alcohol settings where a large proportion of people who present for treatment are on the autism spectrum. ASD Level 1 is the mildest form of ASD. She had not referred to this area of clinical expertise in her resume. She said that there are many areas of clinical practice that you do not itemise in a resume.
She summarised DSM 5 criteria for ASD in her Clinical Psychology Assessment Report dated 4 June 2018. She stated that for a diagnosis of ASD, patients must have evidence of all Social Communication (SC) symptoms and two of the four Restrictive-Repetitive (RR) symptoms and meet the two prerequisites in Section E and F. The latter two sections were not in the report and not otherwise in evidence. She found that the Applicant had all the SC symptoms and two of the four RR symptoms. During her oral evidence, she said that the Applicant’s repetitive behaviour was cleaning and washing dishes and the huge amount of stress and tension around whether the dishes have been properly cleaned if she does not do them herself. In the form, she listed two RR symptoms but during her oral evidence said that the Applicant has three of four currently or historically and which are not influenced by childhood sexual assault. The Applicant insists on sameness and an inflexible adherence to routines and experiences extreme distress when changes are made beyond her control. Those findings were based on self-reporting and observation of her extreme distress when discussing those symptoms.
The treating psychologist did not diagnose Post Traumatic Stress Disorder (PTSD) because the Applicant did not exhibit either intrusion symptoms or avoidance symptoms which are necessary for a diagnosis of PTSD. There is a distinction between having symptoms of trauma and satisfying a diagnosis of PTSD. The constellation of phenomena that are required for ASD are not identical to those for PTSD.
She also diagnosed anxiety and depression which were secondary to ASD.
On presentation, the Applicant had trauma and stress-related symptoms which they had worked with clinically and which were significantly reduced.
The treating psychologist was asked about how much research the Applicant had done or discussion she had had about ASD before she sought the assessment for ASD. The treating psychologist said that the Applicant had done a little reading but has a significant difficulty reading and comprehending written information, which I infer from other evidence refers to her dyslexia. She concluded that the amount of research done was quite little. The Applicant had spoken to her brother who had been diagnosed with ASD and to other family members when she was diagnosed. The treating psychologist agreed that it was reasonable to infer that the Applicant had some understanding of the characteristics of ASD.
She was unaware that the Applicant had previously sought and been refused to access the NDIS on the basis of anxiety and depression and some other disorders when she conducted her assessment.
In her report of 18 June 2020, the treating psychologist wrote the following:
(The Applicant) is required to interact whilst under stress frequently, due to her complex medical needs necessitating regular medical appointments. She quickly becomes overwhelmed at these times – an experience common for people with ASD. When overwhelmed, (the Applicant) is less able to ‘mask’ her ASD, and her reduced capacity for socially acceptable verbal and nonverbal behaviour has on a number of occasions resulted in others perceiving her to be antagonistic and confrontational. Within the past 18-months, when these difficulties have occurred in medical settings, (the Applicant) has been denied medical care (eg – in a hospital emergency department),and has experienced significant stress and distress about being able to access a treating specialist due to a breakdown in communication with his staff. …
… Masking itself causes anxiety and stress and ultimately to fatigue or exhaustion. HSPS is diagnosed with a number of other physical conditions which leads to pain and fatigue.
The treating psychologist explained that chronic pain and fatigue reduced the Applicant’s capacity to cope with new stressors and reduces her capacity to “mask” her ASD.
She administered a Vineland-3 Adaptive Behaviour Scales assessment (the Vineland assessment) on 15 July 2018, after she had diagnosed ASD. She said that it is a descriptive tool more than a diagnostic tool. Its main purpose is to assist those providing therapy to identify where to direct their energies in helping the person. If the person has given self-serving answers or mis-answered, you will find out because when you provide those therapies and focus on those areas, you will realise there has been some mistake in the how the tool has been administered or answered.
When the Respondent’s counsel put to the treating psychologist that the Vineland test was not really for a medicolegal setting, she said that it is one of the tools listed on the access request form for NDIS eligibility, which is why it was chosen. It was conducted clinically and not for a medicolegal assessment. She accepted that it provides some guidance but is not conclusive as to whether or not those are the Applicant’s adaptive behaviours. She did not comment on any of the Applicant’s physical abilities. It was beyond the scope of her practice.
In her opinion, the Applicant’s social isolation is a result of her ASD which significantly impacts her capacity to form and maintain important social relationships.
The Respondent criticised the treating psychologist for failing to give appropriate consideration to the trauma that the Applicant had suffered, particularly the child sexual assaults, and cross-examined her extensively on that issue.
In addition to the details set out below, an interaction with male security guards at an ATM was also explored. Complicating trauma included having a mother who suffered illness when the Applicant was a child which required her to leave school early, putting an end to her academic ambitions.
The treating psychologist agreed that other mental health conditions such as schizophrenia and bipolar disorder score highly on the ASD tests. When asked if she agreed that people who experience childhood sexual assault and trauma have possibly nearly double the rate of psychiatric disorders, particularly anxiety and depressive disorders, she agreed that was so for people who experience multiple or repeated occurrences but not necessarily for people with one-off experiences. She only knew of one sexual assault that she and the Applicant had worked with.
She conceded during cross-examination that the diagnosis of ASD can be complicated by trauma presentation resulting from multiple incidents of childhood sexual abuse. During re-examination on the second day of her evidence, the treating psychologist was asked about that evidence:
When you’re talking about one-off experiences versus multiple experiences. How is that relevant to HSPS?‑‑‑It follows the history of complex trauma and so that’s trauma that generally occurs within the household or with a close family friend and it happens in a repeated way over a period of time. There is a high correlation between some of the things you might observe in adulthood with that and with level 1 autism spectrum disorder. Given that there were not repeated incidents of abuse that were occurring from someone who was close to my client, it rules out looking at complex trauma as differential diagnosis autism spectrum.
She was cross-examined about a file note made on 19 February 2019, ten months after diagnosis of ASD, which said:
… completed PCL 5 as a lane of querying whether have PTSD.
The Respondent was seeking to establish that the interviews and dealings the treating psychologist had with the Applicant in 2018 and 2019 were not sufficient for her to fully understand the childhood trauma the Applicant had suffered or analyse it appropriately.The treating psychologist disagreed. She was not using the form for the purpose of diagnosis. When assessing and working with trauma, having details of all the experiences was not necessary for treatment. Some treatment protocols protect the client from having to relieve the traumatic experiences, which would be retraumatising and counter-therapeutic.
She did not accept that the score of 45 in the test suggested that the Applicant might have PTSD, because of the manner in which it was used. She did accept that on its face it was an indicator of potential PTSD.
The Applicant gave the following evidence:
What’s it like for you to socialise?---It’s really stressful. It’s easier not to, it’s easier not to socialise, because my brain has to work so hard in trying to understand what’s going on. People do things like huff and puff and look the other way and roll their eyes at me and turn their backs to me quite often. It’s like a common thing that happens to me and I didn’t notice it when I was younger, but as I’m getting older, that affects me. I feel embarrassed and I feel sad that I can’t interact with people properly and have proper relationships. And lonely, you know, wake up most days, disappointed that I’ve woken up and that’s not just since 2012, that’s since I was a little girl of seven. I’ve sobbed myself to sleep many, many nights; that’s not normal. It’s hard, really hard for me. I don’t - yes, I think I’m leaving it there, I think. (Emphasis added.).
The treating psychologist agreed that she had not specifically addressed in her reports or letters the impact of untreated childhood sexual trauma on the Applicant’s early adult relationships or employment. She did not believe that it was clinically necessary. She was aware that the Applicant had reported suicidality for a large portion of her life, but she had not been told specifically that it was since she was seven. She had not clinically assessed whether that was anchored to the first incident of childhood sexual assault and did not feel comfortable commenting upon that.
She accepted that the Applicant would have been seven or eight when in second or third grade in the 1960s and that at 60 years of age, a person would not clearly remember the sequence of events or whether the suicidality occurred before or after the sexual assault. She said that an argument could be put forward that the Applicant’s feelings of social unease could potentially be explained by an untreated significant childhood sexual assault but that did not explain the second primary symptom of the diagnostic criteria of ASD, the restrictive and repetitive behaviours, the sensory sensitivities, the strict adherence to routines, the self-reports and the past three years of behavioural observations that clearly show an autism spectrum phenomenon.
The treating psychologist said that she had not discounted the childhood trauma. She was aware of the impact and the interaction between those difficulties for the Applicant but that does not negate the diagnosis.The Applicant has symptoms of ASD other than untreated trauma. The social interaction difficulties persist despite treatment of the trauma symptoms.
She had not clinically assessed whether the untreated trauma of sexual assaults was a factor in the breakdown of the Applicant’s relationships with men. In re-examination, she said that she did not do so because the extent of the trauma symptoms was not great enough to warrant delving into that assessment at that point of time.
The treating psychologist said that the notion of untreated trauma suggests a highly pathological symptom/s. She did not believe that the Applicant’s symptoms were pathological enough to warrant that term being used.
The Applicant’s evidence was that she “mouthed-off” at colleagues when she was nursing as a young woman when she saw alcoholic patients not being treated properly. The treating psychologist did not agree that the Applicant’s response was located in her childhood trauma of growing up with alcoholic parents. She also did not agree that her answer was because of confirmation bias. She said that she had not assessed that matter.
Behaviour in Medical settings
One aspect of the Respondent’s cross-examination about trauma focussed on the Applicant’s behaviour in medical settings. The Respondent was seeking to “locate” her behaviour in her childhood sexual assaults.
The treating psychologist understood that the Applicant had been turned away from an emergency department and denied treatment on two occasions since she had been treating her because of her behaviour and she has walked out of appointments with specialists because of difficulties interacting with administrative staff. She was also aware of an earlier incident at a fracture clinic.
On her second day of cross-examination, the treating psychologist referred to an incident in a hospital emergency department detailed in her clinical note dated 7 May 2019, which is summarised at [118] to [120] below. The treating psychologist had the opportunity to review her notes over a lunch break. She had read the majority but not all of them and had found no further instance of “denial” of medical treatment. She was not prepared to accept that her evidence that the Applicant had been turned away twice from emergency departments was probably wrong, but she conceded that there was no documentation of any other such incident in her notes. She did not accept that that was because she was prepared to do anything to try and get an outcome for the Applicant.
The Applicant was asked about an 8 May 2020 clinical note that described difficulties she had with an appointment to speak to a gastroenterologist. Eventually, a rude female receptionist told her she had cancelled the appointment because the Applicant threw paperwork a number of months before. The Applicant said that she put it on the table.
When asked about this evidence, the treating psychologist said that the Applicant was emotionally overwhelmed, particularly in medical situations. She suffered a high level of distress, and paranoid thinking about the receptionist destroying test results and sabotaging appointments. The treating psychologist did not know whether paranoid thinking related to cannabis addiction.She thought it was a failure to accurately predict the intentions of other people.
A clinical note of 24 September 2020 recorded the following. The Applicant was smoking a bit of cannabis. She visited a cardiologist who she felt was disinterested in her and sarcastic. “Every time they behave like that, feel the way felt when was sexually assaulted – worthless and not in control. No power”. During cross-examination of the treating psychologist, the following exchange occurred:
So the trauma of her sexual assault by a medical student is another reason or is it at least probably the predominant reason why she has difficulty in medical settings. Would you agree with that?---I would agree that medical settings are triggering for her. They do cause disturbance. Yes.
And that is in fact, a more likely explanation than the autism spectrum disorder that really has not impeded her life in terms of getting married and having jobs?---I don’t agree with that statement.
During re-examination, the treating psychologist said that she did not think that the Applicant’s difficulty interacting with males in a position of power, or in a medical field, is necessarily separate from ASD. Her earlier negative experiences are having an impact on her but that does not mean that her behaviour is entirely attributable to those experiences.
In the opinion of the treating psychologist, the Applicant is overwhelmed by social interaction. She is unable to process verbal information when under pressure and unable to express herself in a manner that is palatable to other people. She was happiest when she was doing a job she could identify with. When she was doing literature service for an AA group she felt she belonged. She had a procedure to follow and was not second-guessing herself socially. She knew she was doing it successfully because people would smile and say thank you.
Other activities of the Applicant
The treating psychologist had not delved into the Applicant’s previous involvement in a theatre group but said that a lot of women who are on the autism spectrum enjoy participating because they are given clear roles and use the masking skills they have in a way that makes them feel comfortable. When the Respondent’s counsel raised confirmation bias and suggested that such involvement tended against the Applicant having ASD, the treating psychologist said that she would need to speak to the Applicant about it but then speculated about the involvement in a way that suggested that it may be consistent with ASD.
The treating psychologist was asked about the Applicant’s capacity to work as a nurse, which was assumed to be prior to the birth of her daughter and prior to treatment for childhood trauma, including for the assault when she was 17. She explained that the Applicant strictly adhered to policies and procedures and would “mouth off” at supervisors who did not follow them. The Applicant reported doing her best all the time and having a strong desire for social connections with colleagues but failing every single time she tried. Referring to her own experience working in a hospital setting, the treating psychologist said that it was commonplace for the minutiae of policies and procedures not to be followed.
The treating psychologist was cross-examined about an interaction with police at a police station which the Applicant attributed to ASD. She agreed that it did not appear to be an example of a problem dealing with the police due to ASD. The Respondent’s counsel put the treating psychologist that following this incident, the Applicant rang the national police and resolved the issue, a “very impressive example of problem solving”. The treating psychologist said:
So there are lots of things that come to mind with this situation though. And you know, without the opportunity to actually clinically assess it, it’s very difficult to answer questions in relation to it. So you know, one thing that comes to mind is when did this occur? Was HSPS’s father still alive? Was he the person that she turned to support?
Assistance from the Applicant’s father
The treating psychologist understood that the Applicant’s father had been a primary support person for the Applicant. He had assisted her with more complex interpersonal problem solving and managing more complicated administrative procedures throughout her life. When he passed away, the Applicant’s functioning deteriorated significantly.
She was cross-examined about advice the Applicant said her father had given her. The treating psychologist described smiling at people and eye contact as basic social skills which the Applicant had to be taught, which reflected a very significant social skills deficit. She inferred that the Applicant’s extended eye contact was a response to that advice.
She accepted that assistance with written job applications was needed because of the Applicant’s learning disability which was not specifically related to ASD. She considered background research a fairly basic social skill that did not necessarily need to be explicitly taught unless there was some kind of deficit.
As an example of more complex problems she had at work, the Applicant talked about bullying and her father’s advice to think that other people might be having problems and be unhappy. The treating psychologist agreed that anyone could receive that advice but added that she did not believe the father was a qualified clinician.
The treating psychologist did not accept that the Applicant had been successfully engaged in employment before her workplace accident. The Applicant had reported repeated experiences of bullying in the workplace and multiple examples of interpersonal stressors with colleagues. The treating psychologist had not discussed those incidents in her reports.
On the second day of cross-examination, she agreed that her file note of 24 April 2018 recorded that the Applicant identified bullying starting after her injury in 2012 and there were no reports of bullying prior to that injury. The Mental Health Report prepared in 2017 stated that the bullying occurred towards the end employment. The treating psychologist agreed that was with that employer but said that the Applicant reported instances of social discord with colleagues throughout her nursing career. The Applicant reported becoming angry with colleagues who were not following policies and procedures, in particular with respect to alcoholic patients. The treating psychologist agreed the trigger for that behaviour in relation to alcoholic patients was located with something in the Applicant’s life other than ASD. She said that the Applicant was able to work as a nurse because she was having to apply rigid rules.
During cross-examination about the file note of 7 August 2018 (at [30]), the following exchange occurred:
… Not being able to work had so significantly impacted her life?---I think - so the - so not just not being able to work but the circumstances around needing to leave that workplace, and the bullying.
Yes, but if she again is identifying the injury and then bullying, do you agree?---Yes.
The treating psychologist accepted that even with the diagnosis of ASD, the Applicant was capable of being untruthful and manipulative. She said that all people were so capable. She also accepted that the Applicant had previously reported that her happiest moments were when she was working on literature with AA, was substance free, and felt supported.
When counsel for the Respondent put to the treating psychologist that the Applicant was unable to give more than one example of more complex problem-solving difficulties, the treating psychologist said that it is quite common for people who are on the autism spectrum to have difficulties with insight, with understanding what information is being requested and knowing how much detail to provide. Such questions would be quite challenging for the Applicant. Despite the Applicant having given examples and exhausted her memory, the treating psychologist said that it cannot be assumed that the Applicant interpreted the question as the questioner intended.
When put to her that her view was that any of the Applicant’s evidence that was unhelpful to her would be explained by ASD, the treating psychologist said that it would depend on the specifics of what was said.
Past and future treatment
DSM 5 prescribes that Level 1 of the ASD diagnosis requires support and Level 2 requires substantial support. The Applicant had had 45 one-hour sessions from April 2018 until the hearing. The treating psychologist did not agree that during the previous one and a half years that the sessions were about the Applicant’s problems rather than just specific interventions. She said that most of the sessions had been a mixture of updating what the current stressors were and a lot of time was spent on social interaction skills. When the proposition was put to her that nothing more could be achieved by ASD therapy that had not been achieved in that time, the treating psychologist said that a large amount of time had been spent on acute stressors, which included but were not confined to these proceedings and regular appointments with medical specialists she needed, and once those stressors have settled, the primary therapeutic focus would return to trauma symptoms and social interactions. Once stressors are managed as effectively as possible, including medical appointments related to the health system, the Applicant should require much less psychological support.
Clinical v medical legal report
When she was questioned about aspects of her reporting, such as observations not being in her reports, the treating psychologist emphasised the difference between a clinical report, which she had prepared for the GP, and a medico-legal report. In re-examination, she explained that for a clinical report, particularly under a Medicare referral, there is a very small number of sessions. There is no time allocated in the referral for report writing. She just tries to communicate the key points to the treating doctor. A medico-legal report requires verifying and fact checking your opinions stand up to cross-examination.
Confirmation bias
The treating psychologist accepted that that confirmation bias exists but having diagnosed ASD, she firmly believes that the Applicant’s behaviours she observes are very much in keeping with autism spectrum phenomena.
Specific symptoms of ASD
Specifically, the treating psychologist identified as symptoms of ASD and no other condition, “when considered in conjunction with her other difficulties”, the Applicant’s intense eye contact, length of gaze, and exaggerated gestures to which people react negatively. She has directly observed those behaviours and was working with the Applicant to make changes so that her social interactions can be more effective.
The Applicant’s estrangement from her daughter
The Respondent cross-examined the treating psychologist extensively about the Applicant’s estrangement from her daughter which she linked to ASD based on her clinical judgment, relying on the Applicant’s reporting. She did not and would not contact the daughter. That was standard clinical practice. To contact the daughter would rupture the client/therapist rapport, which is the most important thing. The Applicant would disengage from therapy, which is not in her best interests. She said:
When we're working clinically, we're working with the perception of the person sitting in front of us. The accuracy of that perception is somewhat irrelevant. I work with what is brought to the session, how she is feeling, how to calm things down, and then social skills around how to try and repair the rupture.
The Respondent was seeking to link the estrangement with the daughter’s male partner and relate that to her childhood sexual assault. Counsel took the treating psychologist to numerous clinical notes relating to this topic. In summary, the most serious estrangement occurred when the daughter’s baby was born in June 2019, at which time the Applicant experienced suicidal ideation. There were some reconnections over a period of time. The relationship was repairing by the time of the hearing in April and May 2021.
Two examples of the cross-examination are illustrative. A clinical note dated 4 October 2019 states that the Applicant had sent multiple abusive text messages to the daughter’s partner after she received no response when she called her daughter. She threatened to “hex” his mother. The treating psychologist said that the Applicant has a lack of emotional regulation. She related it to ASD and not to the Applicant’s very early trauma with men:
I believe that the estrangement from her daughter was due to some fairly misjudged social interactions that she herself had with her daughter and that she’s clutching at straws to try and explain that estrangement and desperately trying to reconnect, and not being able to problem solve, not being able to generate alternative solutions, and having a meltdown about it.
She did not agree that she was prepared to say anything to assist the Applicant.
A clinical note dated 26 February 2020 recorded the Applicant’s concern that her daughter’s partner was isolating her daughter and she was worried that he was perpetrating domestic violence. Her daughter had invited her before Christmas when her partner was at work and his family was away. The treating psychologist did not agree that the estrangement was located in her engagement with her daughter’s partner.
The outcome of the cross-examination was:
… You gave evidence to the tribunal at line – page 137, line 10. And I say to you ‘So what has she told you about the reasons for the estrangement with her daughter?’ And you say, ‘So the applicant would recount the details of interactions that have occurred and it’s my clinical judgment there were difficulties in those interactions and her difficulties in understanding the daughter’s perspective are as a result of the autism spectrum.’ Do you recall giving that evidence?---I don’t recall it, but you’re reading it; I trust that that’s what I said.
And there’s nothing here in your notes about what she and the daughter did to cause the estrangement?---Not in my notes, no.
And the only thing in your notes is her rage with her son-in-law that she attributes as the reason for her estrangement from her daughter?---Yes.
And that’s the true reason for the estrangement with her daughter, other feelings of rage towards her son-in-law and her interactions with him?---(Indistinct) no, I don’t agree with that statement.
During re-examination, the treating psychologist said that she did not agree that the estrangement with her daughter was because of her daughter’s partner because some of the interactions, which were not documented in her notes, occurred prior to the estrangement and were between the Applicant and her daughter. The examples she gave were about the Applicant’s conduct after the birth of the child, including a lot of unsolicited advice which was taken as criticisms of the daughter’s parenting, about which she had a clear recollection
Seeking redress for childhood trauma
On 11 July 2019, the Applicant sent the treating psychologist an email. She had been in contact with the person in charge of the academic institution where she had suffered the child sexual assault, who was asking about the best way to set up a visit to the institution “as I want to ensure that this is a healing process and doesn’t make things worse for you”. The treating psychologist said that was the Applicant’s wish. It was not therapeutic. That is a reason that she says the Applicant does not have avoidance symptoms.
A 9 August 2019 clinical note records that the academic institution had accepted that the incident had occurred and wanted to offer financial compensation.
Corroboration by relatives
The Respondent criticised the treating psychologist’s diagnosis of ASD because of the lack of corroborative historical information to support the diagnosis. It relied on an article entitled Identifying the lost generation of adults with autism spectrum conditions[9] which included the following:
Being neuro developmental, characteristics of autism spectrum conditions have, by definition, to be present in early childhood. Therefore interviewing informants who can provide reliable and valid information about the patient’s developmental history is essential to confirm a diagnosis, irrespective of the age of the patient at the time of assessment. (Reference omitted). For adults, the patient’s childhood care givers might no longer be alive or in contact, but other possible suitable informants are older siblings, relatives, or neighbours who knew the patient well as a child. The quality of the informant’s recall might not be detailed or might be inaccurate due to the long time lag. The clinician’s nonleading questions and use of important life events to define target time windows can help informants to retrieve the best possible information. (Emphasis added.)
[9] Lai, M. C., & Baron-Cohen, S. (2015). Identifying the lost generation of adults with autism
spectrum conditions. The Lancet Psychiatry, 2(11), 1013–1027. Contained in Tender Bundle (TB) p 34.
The treating psychologist agreed with the content of that paragraph except that having such information was essential to confirm a diagnosis. She said that it was preferable. On the second day of giving evidence, she said that she did not agree that a diagnosis of ASD cannot be verified if there is a lack of independent corroboration from people who knew the adult as a child.
She was cross-examined about her file note for a session on 21 May 2018 that the Applicant felt strongly that she was on the autism spectrum, and having run through various tests wrote:
Indicative of likely ASD, however did not have collateral information, so cannot fully verify this.
She said that the note was a reflection of her discussion with the Applicant on that day. She maintained her position. ASD is a lifelong condition. Clients present with the symptoms. Behavioural observation, as well as historical information is very important for diagnosis. She stood by her diagnosis.
On the first day the treating psychologist was cross-examined, her clinical notes were not available to her or to the Tribunal or the parties. Her recollection was that she had given a questionnaire to the Applicant’s brother. Once the clinical notes were provided, what she had done became clear. She had given a written relatives questionnaire to the Applicant’s aunt. Although her file note stated that the Applicant had also consented to one going to a cousin, that was not done. She did not recall that reference. Her file note indicated that she did not try to get consent to send it to the Applicant’s brother.
The aunt’s answers included some that the Respondent pointed to as not supporting the ASD diagnosis. The treating psychologist did not rely on the answers in the questionnaire because there was a high number of “don’t know” responses. She commented that generally, a parent or caregiver is asked to provide the information, however, when a person presents quite late in life, those people are not available and it can be quite difficult to track that information.
She was unaware that the Applicant had a childhood friend called J. She had asked the Applicant if there was a childhood friend that she could contact.
The treating psychologist did not agree that the Applicant intentionally denied her fairly important information to corroborate her diagnosis by refusing to allow her to speak to her brother and not disclosing the existence of her childhood friend. She had not spoken to the Applicant about those matters but commented that one of the components of ASD is that people tend to give a whole lot of irrelevant detail and potentially gloss over or omit things that could be very relevant to the listener through lack of awareness or understanding what the listener requires. The Applicant had expressed that she was not comfortable with people being approached which is not uncommon in someone who has such limited interactions.
She said that DSM-5 does not require historical behavioural observation for the diagnosis to be made.
She had asked the Applicant if there was anybody she could approach for collateral information, medical people or people who knew her socially or family members. The Applicant had not mentioned the GP she had attended from 2007 to 2015. She had not mentioned any negative experience with that doctor.
Letter supporting the Applicant being excused from jury duty
The treating psychologist was cross-examined about a letter she wrote dated 18 July 2019 supporting the Applicant’s application to be excused from jury duty. She accepted that the first paragraph was an error. She had written, incorrectly, that the GP had referred the Applicant to her for assessment of possible ASD. She did not accept that she stated that the Applicant “continues to suffer from post-traumatic stress symptoms” to mislead the reader in to thinking the Applicant is suffering from PTSD. She did not agree that she wrote documents to get outcomes for her client. She had written that she had diagnosed the Applicant with ASD.
Cannabis/alcohol
The treating psychologist did not tell the Agency about the cannabis or alcohol use because she has an ethical responsibility to her client to only share the information that she believed was necessary for the purpose of the communication. She did not believe that history was necessary for the NDIS assessor. She did accept that it was relevant to her diagnosis of ASD. In her experience, government departments, such as the Agency, accept the diagnostic conclusion made by a treating professional.
The treating psychologist was cross-examined about a recent incident at the emergency department of a local hospital recorded in writing in her clinical note dated 7 May 2019. The Applicant only had enough fuel to get there and back and could not go anywhere else. She wanted to get an X-ray. After three and a half hours she was getting nervous. Distraction was not working and she said that the nurse was quite aggressive. She got jittery and “he” yelled about her jittery leg. She got angry and threw her stick at the ground. The male nurse ran out and told her to settle down and threatened to call security.
She accepted that it was possible that the Applicant was using cannabis to control her pain at the time. She accepted that another nurse coming out to ask the Applicant if she was okay because she was crying, was a supportive action which was very calming for her.
A doctor then came out and said that it would be six hours until she could be seen. The Applicant grabbed a sterile needle and shot up endone with filtered water. The treating psychologist did not record or recall how the incident ended. She did not agree that the jittery leg was the only thing related to ASD. There was a level of anxiety and trying to use distraction that was not working. The jittery sort of meltdown is an inability to continue to cope with a stressful situation. The mention of “tapping” behaviour is characteristic of autism spectrum, trying to get back control after being told it would be another six hours in an environment that was resulting in high levels of distress and stress.
The treating psychologist’s opinion was that the Applicant was doing something trying to tolerate the environment she was in which a nurse did not like and upon that interaction, she interpreted the entire situation from her perspective and it escalated. This exchange followed:
So, you’re saying the violent reaction of throwing her stick on the ground, that’s part of autism and not just someone maybe coming on drugs, or being on drugs or otherwise?---Not cannabis, no, not somebody who regularly uses cannabis and bear in mind she uses it as a calmative. It’s not like she’s - to my knowledge - been using ice or something which may have made her behaving in that kind of manner.
On the 45 occasions that she had seen the Applicant over the previous three years, the treating psychologist had never seen her look as though she was acutely intoxicated or coming down or unable to cope because she felt the need to reuse. She accepted that the Applicant had a period of missing appointments, came to her when she wanted to engage with her, whereas with medical needs and emergencies she does not control it. She said that is one of the reasons it is so disturbing for the Applicant. Unexpected changes in the day are particularly upsetting for people who are on the autism spectrum.
The treating psychologist accepted that she had a copy of the October 2017 Mental Health plan, that she was likely provided this with the referral from the GP in February 2018, and that she was aware at all times of the strong family history of anxiety and alcoholism.
Learning
The treating psychologist recorded four sessions to help the Applicant prepare for an appointment with a medical specialist which the Applicant did not recall. One hour was for debriefing after the appointment. The treating psychologist did not accept that the Applicant was not learning anything from those sessions. She did not accept that she will always need support for medical appointments:
No, I think that with repeated practice and if she can have some experiences that are less aversive than the ones that she has been having, that she may, depending on the particular circumstance of the appointment, I mean, she will attend doctors that she knows, that she’s familiar with, that she doesn’t have any particular difficulties with them or their staff, but she should have no problems with doing that. I think she will have persisting problems with unplanned visits to medical situations like needing to go (indistinct) emergency appointment.
A further exchange was:
Well, just as a psychological phenomenon, you say that her autism spectrum disorder apparently explains her not being able to recall what you have done in relation to preparing her for a medical interview?---I’m saying that her verbal learning and memory is impacted. I wasn’t present for the – you know the questions that were asked of her about those appointments, so I find it difficult to comment.
The Applicant’s evidence was read to the treating psychologist. The treating psychologist accepted that “there’s a chance” that long-term cannabis use might be affecting the Applicant’s memory. During re-examination, she said that it is quite common for people on the autism spectrum to have particular difficulties with verbal learning and recall. Cannabis has an impact on memory and new learning as well. The only way to differentiate those factors is a detailed neuropsychological assessment.
Consideration
In summary, the Respondent argued that I should not be satisfied that the treating psychologist’s diagnosis of ASD is reliable for the following reasons. She had made the diagnosis on 4 June 2018 after three one-hour sessions with the Applicant without adequately exploring her history of trauma and did not have essential corroborative historical information. She exhibited confirmation bias because she did not consider appropriately information that did not support her diagnosis. She would write or say anything to assist the Applicant.
I infer from the evidence that the treating psychologist was aware that the Applicant was seeking the diagnosis to support an application for access to the NDIS when she made the diagnosis on 4 June 2018. The parties accept that ASD is a permanent impairment pursuant to s 24(1)(b) of the Act. She did not diagnose PTSD because the Applicant showed neither intrusion symptoms nor avoidance symptoms, which are necessary for a diagnosis of PTSD according to DSM 5. That evidence was not contradicted.
The Respondent argued that there is another explanation for the Applicant’s interpersonal relationship difficulties: her history of trauma as a child, having suffered two child sexual assaults by the same person which occurred in the academic institution where she lived, and at the age of 17, being subjected to an assault and attempted abduction.
The Respondent focussed on seeking to attribute the Applicant’s social interaction difficulties with men to the childhood sexual assault to explain her behaviour rather than ASD. Those difficulties were reflected in her choosing a poor partner who subjected her to domestic violence during her marriage. She had difficulties interacting in medical settings because of men and the interaction with her daughter’s partner was the reason for the estrangement.
The extent of the trauma that has been suffered by the Applicant is not reflected in the clinical notes of the treating psychologist before or after she made her diagnosis. She was aware of only one incident of child sexual assault at the time of the hearing. However, historical trauma had been identified from the first consultation and treated, as noted in the 18 June 2018 letter from the treating psychologist to a GP.
The evidence about trauma is summarised above. The treating psychologist said that the untreated trauma did not explain the secondary primary symptoms of ASD, the restrictive and repetitive behaviours, and that social interaction difficulties persist despite treatment of the trauma symptoms. This was persuasive evidence. I accept her explanation for using the PCL 5 test on 19 February 2019.
I am not satisfied that corroborative historical information is necessary for a diagnosis of ASD. While the article the Respondent relied on said that it was, I was not taken to DSM 5 criteria where that was stated. I accept that there is no such criterion in DSM 5 as the treating psychologist said. She acknowledged appropriately, that such information would have been helpful. There were some answers in the questionnaire that was received that might be interpreted as not supporting a diagnosis, however, the treating psychologist assessed that as a whole the questionnaire was not of assistance because of the number of “don’t know” responses.
The Applicant might be criticised for not providing more names of people, such as her lifelong friend J, to answer the relatives’ questionnaires. The treating psychologist made a diagnosis on the material available to her in the real-world environment of time and financial and regulatory constraints related to Medicare rules. I do not accept this criticism of the treating psychologist’s diagnosis.
Accepting that the Applicant was happiest during the period she was drug free and working for about six years in another state before she suffered the injury in 2012, does not negate the diagnosis. There was little detail about other aspects of her life during that period apart from her involvement in AA and a theatre group.
I do not accept the Respondent’ criticism of the treating psychologists’ letter about jury duty. She acknowledged that she had made a mistake as to the basis of referral. She included her diagnosis of ASD and that the Applicant continues to suffer from post-traumatic stress symptoms. I accept that she was not seeking to mislead anyone.
She was aware of the Applicant’s use of cannabis but did not consider it to be relevant to her diagnosis and therefore did not refer to it. She did accept in cross-examination that some aspects of the Applicant’s behaviour might be related to her cannabis use. The evidence about the effect of cannabis on the brain, including altered psychological states, from Dr Ian Cameron, Consultant Physician in Rehabilitation Medicine, as set out in his letter of advice to the solicitors of the Respondent and the attached paper by Ashton which are summarised below, does not dissuade me from accepting the treating psychologist’s diagnosis of ASD.[10]
[10] Letter dated 20 May 2021 from Dr Cameron to the solicitor for the Agency; Pharmacology and effects of cannabis: a brief review, Ashton, British Journal of Psychiatry (2001) 178, 181-186. (Exhibit R7.)
I do not accept the speculative proposition that the treating psychologist did not observe the Applicant exhibiting symptoms of addiction because she only attended about once a month, relies heavily on the treating psychologist, wants to see her, and enjoys seeing her. She is an experienced psychologist in drug and alcohol settings.
There were some aspects of the treating psychologist’s evidence that I did not accept as being well-founded, including that the Applicant had been denied access to treatment on two occasions because of her behaviour. However, those aspects of her evidence do not lead me to conclude that I am not satisfied that her diagnosis was open on the evidence or that another explanation for the Applicant’s behaviour should be preferred.
I am not satisfied that the treating psychologist suffered from confirmation bias or was prepared to exaggerate or say or do anything to get an outcome for the Applicant. As the Applicant’s solicitor pointed out, if she had wanted to assist the Applicant, the treating psychologist could have diagnosed ASD Level 2 which requires substantial support, which would be of greater benefit to the Applicant in relation to satisfying s 24(1)(c) of the Act.
While the Applicant may have had some knowledge of the symptoms of ASD during the three sessions before diagnosis on 4 June 2018 and might have gained a great deal more in the course of these proceedings, there is no doubt that she suffers from complex psychiatric and physical difficulties. She may have exaggerated some of her difficulties in light of a potential diagnosis of ASD during the three interviews before diagnosis and may have continued to do so thereafter in the context of an ongoing battle to gain access to the NDIS. The treating psychologist had had 43 sessions with the Applicant over a period of about three years from initial presentation to the hearing. She has spoken to and observed the Applicant. There was also correspondence between them. I do not accept that she has been deceived by the Applicant to the extent that the diagnosis of ASD was not open to her. The Applicant tried to conceal from the NDIS that she was taking cannabis but she did not conceal that or that she injected endone in a medical practice, from the treating psychologist who was experienced in drug and alcohol settings. The clinical notes show that the Applicant confided very personal and sensitive information to the treating psychologist. She did not only get a diagnosis. She sought and received treatment which has been beneficial to her to begin repairing her relationship with her daughter and in relation to trauma.
The Respondent seemed to suggest that the Applicant demonstrated drug-seeking behaviour in relation to endone, in particular when she changed from a doctor who ceased prescribing endone to her treating GP who subscribed it. The clinical note recording this includes the fact that the previous doctor was not offering alternatives to endone. That suggests that the Applicant was seeking pain relief generally, and not only endone. That weighs somewhat against the Respondent’s suggestion. In any event, I did not understand the Respondent to pursue this matter.
While another psychologist may have made a different diagnosis, the treating psychologist maintained her opinion with reasonable explanations and made reasonable concessions.
In his report dated 8 June 2020, the treating GP recorded fibromyalgia, PTSD, anxiety and depression, ASD, and osteoarthritis as conditions the Applicant has that were within his area of expertise. I prefer the treating psychologist’s evidence that the diagnosis of PTSD is not available for the reason she gave. Two symptoms necessary for that diagnosis are not present.
The treating psychologist’s diagnosis of ASD was made according to DSM 5. ASD is a psychiatric condition. The Applicant has a disability that is attributable to an impairment attributable to a psychiatric condition. She meets the requirement of s 24(1)(a) of the Act in respect of ASD.
Issue (ii) Is/Are the applicant’s fibromyalgia and/or bilateral epicondylitis and/or osteoarthritis likely to be permanent within the meaning of s 24(1)(b)?
The Respondent contended that the evidence does not adequately address whether the Applicant’s fibromyalgia, bilateral epicondylitis and osteoarthritis are, or are likely to be, permanent within the meaning of s 24(1)(b). The Respondent did not address bilateral epicondylitis and osteoarthritis in detail because those conditions cause pain, which is the primary symptom of the Applicant’s fibromyalgia. The Respondent’s argument focussed on fibromyalgia.
Under the heading When is an impairment permanent or likely to be permanent for the disability requirements? the Rules provide:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The Respondent argued that there is insufficient information about ongoing treatments, or possible treatments of fibromyalgia. It focussed on the Applicant’s use of endone and cannabis, her lack of regular exercise, and not attending a pain clinic.
The Respondent argued that endone increases rather than decreases chronic pain caused by fibromyalgia and I infer chronic pain in general. Therefore, until she ceases taking it, the extent of her pain cannot be determined.
The Respondent emphasised the expert evidence and the decision made relying on that evidence, in McFarlane and National Disability Insurance Agency [2018] AATA 4727 (‘MacFarlane’).
In McFarlane, the applicant suffered from fibromyalgia and chronic pain syndrome. At the request of the Respondent, Professor Ian Cameron provided two written reports about fibromyalgia dated 3 January 2018 and 18 January 2018 which were based on a review of the scientific literature. He had not seen or examined the applicant. He gave oral evidence in that case. At the request of the applicant, Professor Littlejohn, rheumatologist, provided an expert opinion about fibromyalgia dated 20 March 2018 and gave oral evidence. He had not examined the applicant.
Professor Les Barnsley, consultant rheumatologist and musculoskeletal physician, assessed the applicant for insurance purposes, provided a report dated 24 April 2018 and gave oral evidence.
Relevantly, Member Bygrave found that fibromyalgia is an impairment, which was conceded in this case. In relation to whether the condition was permanent, Member Bygrave made the following findings of fact at [70]:
·Since 2009, Mr McFarlane’s treatment for fibromyalgia and chronic pain syndrome has consistently relied on pain medication. He has also periodically engaged with physiotherapy and hydrotherapy.
·Mr McFarlane did not actively engage with HIPS in 2017. Dr Nosike’s report on 22 May 2018 indicates he has begun to participate with the HIPS in 2018 but there is no evidence before the Tribunal about whether and how HIPS has assisted Mr McFarlan’s conditions of fibromyalgia and chronic pain syndrome.
·Associate Professor Barnsley, Professor Littlejohn and Professor Cameron were consistent in their opinions that:
o the treatment of fibromyalgia is difficult;
o exercise programs provide beneficial treatment for fibromyalgia; and
o opioid medications increase symptoms of chronic pain.
·Mr McFarlane is not participating in an exercise program, apart from walking around his house.
·Since December 2016, Mr McFarlane has been taking regular and considerable doses of opioid medications.
When read in the context of the Member’s discussion of the doctors’ evidence, the evidence was that opioid medication can increase symptoms of chronic pain, not that it will necessarily do so. That is consistent with Member Bygrave’s conclusion at [75]:
My final issue may be contentious but the evidence cannot be ignored. While I accept that Dr Nosike, as Mr McFarlane’s treating medical practitioner is prescribing medications based on a holistic diagnosis and assessment of Mr McFarlane, all three specialists on fibromyalgia (Associate Professor Barnsley, Professor Littlejohn and Professor Cameron) gave evidence to the Tribunal confirming that Mr McFarlane is taking opioid medications that can enhance his experience of pain. The implication from this evidence is that Mr McFarlane ’s pain may in fact be exacerbated by the medications that are being prescribed to reduce his pain.
As mentioned above, in this case, Professor Cameron prepared a report dated 20 May 2021 about the impact of each of opioid medication and cannabis on the pain experience of a person diagnosed with fibromyalgia. He provided a number of supporting documents.[11]
[11] Appendix – Fibromyalgia. Updated review – April 2021 Ian Cameron, PhD FAFRAM (RACP).
He referred to his literature review and answers to questions on the subject dated 18 January 2018 that he had provided to the Respondent in McFarlane. He annexed an updated literature review as of April 2021. That document states that the central component of fibromyalgia is generalised pain and that pain is a sensory function. He maintained his opinion that fibromyalgia is not an impairment in the context of the NDIS but the Respondent did not rely on that opinion.
In summary, Professor Cameron wrote:
·There are recommendations against the use of opioid medication in fibromyalgia because it is not effective and can be associated with serious adverse effects.
·Low or infrequent doses of opioid medication are not recommended because they could still be associated with adverse effects and can be associated with dose escalation to cause adverse effects. The chance of problems occurring with such dosage, is clearly less than with higher dosages. The comments about non-effectiveness apply.
·Current guidelines about the use of cannabis in chronic pain do not support its use.[12] This reflects the current Australian consensus that cannabis and cannabis-based products are not recommended for chronic pain. Pain related to fibromyalgia is in this category.
[12] Australian Therapeutic Goods Administration 2017.
The document Guidance for the use of medicinal cannabis in the treatment of chronic non-cancer pain in Australia states at page 9 that:
There is insufficient information to make a recommendation about the role of medicinal cannabis in the treatment of pain associated with arthritis and fibromyalgia.[13]
[13] See footnote 14.
The paper by Ashton says the following. Cannabis affects almost every body system. Its psychological effects include on mood, perception, cognition and psychomotor performance, and driving and piloting skills. Long-term effects of chronic use include that impairments, especially of attention, memory and ability to process complex information, can last for many weeks, months or even years after cessation of use. Tolerance can develop which leads some users to escalate dosage and the presence of withdrawal syndrome encourages continued drug use which can lead to drug dependence. It affects the cardiovascular and respiratory systems and appears to have immune-suppressant and endocrine effects.
The 2018 reports of Professor Cameron and Professor Geoffrey Littlejohn were in evidence in this case, as was a table dated 31 January 2018, prepared by Dr E. Guymer, Consultant Rheumatologist, which sets out questions and answers about fibromyalgia, further reading suggestions and references.[14]
[14] TB Tabs 15, 16, 17 and 18 (Professor Cameron’s two 2018 reports are at Tabs 15 and 16; Dr Guymer’s table is at Tab 17, and Professor Littlejohn’s report is at Tab 18.
The reality of treating the Applicant emerges from the oral evidence of her treating GP. He said that he and the treating psychologist are therapeutic partners in terms of treating or managing her total condition. The following exchange occurred during cross-examination:
So when she talks about significant side-effects, you don't know what she's referring to, when she's talked about previous medications in the past, you just know she doesn't like them and has had side-effects that she tells you she doesn't want to experience again?‑‑‑Yes. I don't think that's unreasonable to accept, on face value, when patients report what report of their experience. Remembering, as well, that a very important part of the process here is the therapeutic relationship and (the Applicant’s) issues with health professionals, in the past, has very much been strongly influenced by what she has reported to me. She's actually been shouted at, told off, dismissed, all sorts of very negative experiences. I am very conscious of the fact that I want to give her experience as much weight as possible and work with her and validate her experience. So that's part of the way that I'm helping to manage her, I suppose.
So you accept absolutely everything she says to you, at face value and you don't challenge or query that in any way, that's your therapeutic treatment?‑‑‑No, that's not my therapeutic treatment. That's a very black and white way of putting it. What I do accept is that her experience is her experience. I validate it by saying, "Yes, I understand that's your experience". I think, in myself, "Okay, is this an area where I should push back a bit, or should I just let it sit?", and I'll note that for potential further consideration at another time.
The Respondent pointed to the fact that the treating GP had understood that the Applicant had been taking opioids for pain for some time and had been on higher doses of endone before she came to him. In fact, she left the previous GP because he refused to give her endone, and the treating GP had prescribed it again, knowing that higher dosages could increase her experience of pain from fibromyalgia. He was monitoring her intake and would be surprised if the small dosage increased her pain. His objective was to reduce the dosage. He said that she wanted to reduce her reliance on opioid medication. The dosage was 5 mg as needed. He thinks that is probably three or four times a week. She works it out. If she uses too much, she will run out before the next appointment. There was no suggestion in the evidence that she was “doctor shopping” to get more prescriptions.
He said that she finds her own threshold. Reduced use reduced the side effects of “dumbing” her mind, constipation, and sleepiness. She seems to benefit from the amount and frequency of use. If she takes it, she can move more which allows her to do more physical activity and find more meaning in life. Some pain relief helps her physically and psychologically. He cannot distinguish the benefits the Applicant gets from opioid medication that are not related to fibromyalgia. He could not recall attempting to determine the impact of the opioid medication by taking her off them and asking her to exercise. He would have had to check his clinical notes.
It is relevant that the treating psychologist’s clinical note dated 7 January 2019 about the Applicant leaving the previous GP said that he was not offering alternatives to endone, and the Applicant realised that any other pain management like physiotherapy could not be accessed at that time because the NDIS application process had not been completed. The Applicant wanted pain relief. The previous GP was not going to give it to her. The Applicant explained in oral evidence that she had had an allergic reaction to non-steroidal anti-inflammatories.
The treating GP said that the Applicant’s fluctuating engagement in exercise was because her capacity to engage was variable as a result of her cognition and mood which is affected by her pain. She could also have mild pain but be affected by depression and anxiety. When he talked of exercise, he meant what the Applicant can actually do as opposed to just sitting and not doing anything.
He identified in his report that the Applicant’s treatments for fibromyalgia include psychotherapy, which he describes as “ongoing, supportive, but not curative” and physiotherapy, which he also describes as “supportive”. He reported that her ability to engage in physiotherapy has been variable, which he says is “as a result of sensory and mental impairment, in terms of organisational logistics, anxiety around attending and travelling”.
The treating GP was asked in cross-examination whether the Applicant had done a multidisciplinary pain management program. He said that he doubted that she had and talked about the logistical problems and financial costs that would probably make it impossible for her to access such a program. His explanation was based on his knowledge of the Applicant’s circumstances, the availability of facilities providing such a program and his experience in the local area. He did not expect that such a referral would remedy her impairments.
In her evidence the Applicant referred to pain management books that she had been given. Ms Hammond, Occupational Therapist (OT), noted in her report dated 14 January 2020, that that the Applicant had told her that she had attended pain education in the past and read books provided by pain clinic. She described the advice as being designed for some middle-class life and beyond her grasp.
The treating GP’s opinion was that the Applicant’s fibromyalgia does not require any further treatment for permanency to be established. The evidence does not suggest that he was aware of the Applicant’s use of cannabis.
Conclusion
The focus of evidence and the Respondent’s submissions on this issue was on fibromyalgia because pain overlaps with both bilateral epicondylitis and osteoarthritis. Having addressed only fibromylgia during submissions, counsel for the Respondent concluded:
That’s why we say you should not find that fibromyalgia or the other two conditions are permanent.
I accept that endone is ineffective in treating fibromyalgia and can increase or enhance the pain experienced by the sufferer of fibromyalgia, including at lower dosages, although as Professor Cameron wrote, the chance of problems occurring with such dosage is clearly less than with higher dosages. I also accept that cannabis is not recommended for chronic pain.
In one of his 3 January 2018 report, Professor Cameron wrote the following:
1. What is the aetiology of fibromyalgia?
Fibromyalgia is a condition of generalized body pain without a known cause or cure (Fitzcharles et al 2013). Its aetiology is therefore unknown. It is hypothesised that certain people are more likely to experience chronic widespread pain. This is due to a combination of environmental and genetic influences (Clauw et al 2014). It is definitely more prevalent in women and men in a ratio of 2:1 (Clauw 2014). (Emphasis added)
…
5. If this condition results from an impairment, what is the likelihood that this impairment will be permanent?
It is noted that impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence based treatments that would be likely to remedy (i.e. cure or substantially relieve) the impairment – as shown in Rule 5.4 of the Rules. (Emphasis added).
Fibromyalgia cannot be regarded as permanent because it is responsive to treatment (see above) and is likely to vary in intensity at different times due to a variety of factors.
A well conducted study has shown that most people continue to experience symptoms over a long period but approximately 25% improved in the long term (Walitt et al 2011). However, severity worsened in about 40%. Thus there is considerable variability in prognosis and responses to treatment. It should be noted that this study was conducted in patients of American rheumatologists and may represent a cohort of people with more severe fibromyalgia than those treated in primary healthcare settings.
Fibromyalgia cannot be considered permanent in the same way as many health conditions, because the underlying impairment is pain and this varies considerably over time and in response to treatments and life situations[15].
[15] TB Tab 15, pp 64-65.
Dr Guymer’s evidence about permanence was:
What is the likelihood of permanence of this condition? NB Permanence means no recovery; lifelong impairment and associated disability? (Emphasis added.)
·Once fibromyalgia develops, the person tends always to have varying levels of increased central sensitivity and impairment
·The intensity of symptoms will often fluctuate over time, influenced by effectiveness of treatments, and ongoing physical or psychological stressors
·The sensitivity symptoms can be controlled to different extents depending on individual response to therapy, however there are often episodic flares.[16]
[16] TB Tab 17, p 77.
Professor Littlejohn’s evidence about permanence was:
6. Does the evidence-based treatment result in all impairments of fibromyalgia being remedied?
Evidence-based treatment does not result in all impairments of fibromyalgia being remedied. There is generally a response in some domains in a patient with fibromyalgia, for instance, lessening of pain or fatigue, improvement in sleep or improvement in cognition. However, it is uncommon to have complete resolution of all impairments. Patients with milder and perhaps moderate levels of symptoms would be predicted to improve with our current treatments but those at the far end of the scale, the minority with severe fibromyalgia, are unlikely to have their impairments remedied by current evidence-based treatment.
7. The NDIS (Becoming a Participate Rules) 2016 state an impairment is permanent "only if there are no known, available and appropriate evidence based clinical, medical or other treatments that would be likely to remedy the impairment".
In your opinion is fibromyalgia permanent according to the above Rules? Please explain your opinion.
Fibromyalgia is a spectrum disorder. Some patients will have improvement with current treatments. The emphasis on management is to empower patients to develop self-management strategies, continue in their routine home, recreational and work activities. The emphasis is to avoid ongoing disability. However, there is an important sub-group of patients with fibromyalgia who do fulfil the NDIS (Becoming a Participant Rules) 2016 definition of permanent impairment. Some patients do not respond to current treatments.
These patients will have high levels of symptoms in all domains of fibromyalgia and high levels of disability. As such, I believe they do fulfil the definition that the NDIS has outlined. (Emphasis in original.)[17]
[17] TB Tab 18, pp 86-87.
The Oxford English Dictionary defines “remedy”:
1. transitive. To put right, reform (a state of things); to rectify, make good.
2. a. transitive. To cure or alleviate (a disease, symptom, etc.). Also in figurative contexts.
The different experts had different understandings of what permanent means in this context. However, accepting for the purpose of this decision that fibromyalgia is not permanent if treatment can substantially alleviate the impairment, as Professor Cameron opined, I accept the evidence of the treating GP that the Applicant’s fibromyalgia is permanent. The evidence does not suggest that taking endone causes the pain. That there is a possibility that ceasing the relatively small intermittent dosage of endone may reduce the pain does not persuade me that doing so would be likely to substantially alleviate the impairment, which is pain. It follows that I was not persuaded by the Respondent’s argument that if the Applicant ceased taking endone she may be able to do more exercise which may result in remedying the impairment. I have to decide whether a treatment would be likely to remedy the impairment.
While cannabis may not be easing the pain, the other effects listed in the Ashton paper do not suggest that other symptoms are referrable to that usage so that fibromyalgia is not a permanent impairment.
For the reasons given by the treating GP, there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment in accordance with paragraph 5.4 of the Rules. My finding is reinforced by the unanimous expert evidence that the severity of the impact of the impairment on the functional capacity of a person, including the Applicant, may fluctuate, as described in paragraph 5.5 of the Rules. That is consistent with her experience as recorded by the treating GP.
In relation to bilateral epicondylitis, Dr David Douglas, consultant occupational physician, concludes in his report that the Applicant would have ongoing restrictions from lateral epicondylitis and should never return to tasks including repetitive physical work involving her upper limbs. This would preclude her from cleaning tasks.[18] The Applicant’s lateral epicondylitis in both upper limbs is permanent. His evidence does not suggest that there are other treatments that would substantially alleviate the condition. The treating GP has no real involvement in treating this condition.
[18] Report dated 30 April 2013. TB Tab 6.
During cross-examination, the treating GP agreed that there was significant overlap between the treatment options for fibromyalgia and osteoarthritis. Pain relief and exercise are two helpful management strategies for both conditions.
I find that each of the following impairments is permanent: fibromyalgia, bilateral epicondylitis and osteoarthritis.
Issue (iii) Does the applicant’s ASD and/or fibromyalgia and/or bilateral epicondylitis and/or osteoarthritis result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, any one or more of the activities in s 24(1)(c)?
The Rules provide:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
It follows from my findings that it is necessary to consider whether ASD, fibromyalgia, bilateral epicondylitis and osteoarthritis result in substantially reduced functional capacity to undertake the activities listed in s 24(1)(c) of the Act.
That this is a case where it is not possible to distinguish the impacts on functional capacity of each of fibromyalgia, bilateral epicondylitis and osteoarthritis, because each results in the sensory impairment, pain, was not in dispute.
Two OTs provided reports and gave oral evidence about the Applicant’s functional capacity: Ms Evans for the Applicant, and Ms Hammond for the Respondent.[19] The treating psychologist’s evidence is relevant to the Applicant’s functional capacity with respect to ASD.
[19] Ms Hammond’s report dated 14 January 2020, TB Tab 40, Ms Evans’ report dated 30 September 2020: TB Tab 36.
In March 2018 the Applicant was referred to Compacks program upon hospital discharge. In March 2019 she was referred for a SASH (Safe and Supported at Home) package, which is similar to Compacks. It is a program funded by the Ministry of Health and designed to assist people who are ineligible for any other form of support or are in the process of applying for support under the NDIS. The six-week packages could be repeated with approval. At the time of the hearing, she had funding until 30 June 2021. The Applicant was receiving support for domestic assistance to maintain her home, social supports to complete shopping, and assistance with meal preparation. Support staff opened jars and took out the Applicant’s rubbish bin which she claimed she was unable to do on her own.[20]
[20] Letter dated 15 July 2020 from the support Coordinator, Compacks & SASH, TB Tab 34.
The Applicant submitted that despite her having strong views about how to do household tasks, she relies on a support worker because she cannot do those tasks because of pain and fatigue, not because she is not motivated to do them. One example she gave of her reliance on the support worker was that it takes her three days to cook a curry or stew because one day she relies on a worker to cut up vegetables, the next day she makes the dish, and the next day the support worker cleans up.
The two OTs used different assessment tools. Ms Evans used the Adaptive Behaviour Assessment System third edition (ABAS-3) because it is designed for a one-off assessment that looks at occupational performance in various settings as well as monitoring if necessary. It is designed for clients who have ASD. It also looks at the cognitive side of completing activities of daily living (ADL). It assesses 215 items. Ms Evans had Ms Hammond’s report when she prepared her own report.
The Applicant criticised Ms Hammond’s use of the Functional Independence Measure tool (FIM) because it is designed to be used in rehabilitation settings and does not assess key ADLs, such as meal preparation and living in the community outside a rehabilitation setting. It does assess difficulties eating, which is not a problem the Applicant has. Ms Hammond did not use any of the other tools to overcome the limitations of the FIM which are recommended by the Australian Rehabilitation Outcome Centre. The FIM tool assesses only 11 items compared to Ms Evans’ assessment of 215 items. Ms Hammond did not assess many of the areas where the Applicant has difficulties and already gets help. The Applicant submitted that Ms Hammond’s assessment of functioning in relation to mobility and self-care cannot be relied upon.
The Applicant submitted that ABAS-3 has far greater reliability, that is whether two people would come to the same result for the areas of social interaction and communication. ABAS-3 has a reliability of 0.96 and 0.99, nearly 100 per cent, whereas the treating psychologist notes that in the FIM the reliability measures are very low; different assessors would generate different responses approximately 50 per cent of the time.
Finally, Ms Evans also conducted a functional assessment with simulations of chopping, lifting, and carrying, dynamic and static standing and ducking into the shower, and supplemented those with tests of grip strength and range of movement and a sensory function test. Ms Hammond did not do those assessments. She did not provide details of how long it took the Applicant to walk 100 metres, whether she required breaks, her gait or pain behaviours such as wincing.
Ms Evans recommended the following supports:
·monthly psychology;
·fortnightly physiotherapy/hydrotherapy for 25 weeks;
·20 hours ongoing work of occupational therapy;
·a 1-1 support worker 4 hours per day, 3 days per week to engage in ADL;
·cleaning 2.5 hours per week;
·lawn mowing and whipper snipping fortnightly in summer, monthly in winter, 1 hour per visit;
·monthly podiatry; and
·the following Assistive Technology: Ucello kettle, food preparation station, one touch can/bottler/jar opener, adaptive knife, kitchen stool with arms, tray trolley/mobile, shower chair, long handled sponge, long handled reacher, a mobility scooter, a lifter chair, and bed-stick.
In relation to mobility, Ms Evans assessed that the Applicant has reduced knee lift in stepping which affects her ability to climb steps or raised surfaces, and is able to walk for short periods of up to 10-15 minutes at a reduced pace, and is at an increased risk of trips and falls, meaning that unless she is supported she is unable to leave the home to complete social and community activities.
The Respondent contrasted Ms Hammond’s 40 years of experience compared to Ms Egan’s 14 years of experience and criticised Ms Evans’ use of the ABAS-3. In her report, Ms Hammond described the FIM as a basic indicator of patient disability. Ms Hammond spent four hours observing the Applicant carrying out ADLs in her home. Ms Evans spent two hours doing so and does not set out her observations in her report. Ms Evans’ report reflects the Applicant’s manipulative behaviours and exaggeration. In summary, the Respondent argued that the Applicant’s evidence was unreliable.
The Applicant claimed during cross-examination that she had cried while trying to do what Ms Hammond had asked her to do, but this was not put to Ms Hammond during her cross-examination. The Respondent submitted that therefore it seemed to be accepted that that was not correct and it was designed to evoke sympathy.
Ms Hammond addressed the Applicant’s oral evidence about flying from the coastal area where she lives to Sydney to corroborate Ms Hammond’s account that the Applicant was able to walk sufficient distances to undertake basic functional tasks. The Applicant was driven to the airport where she boarded the flight to Sydney. At the regional airport she walked approximately 50 metres from the drop off point to the check in point. There was then the walk through security to the front of the terminal. It is approximately 150 metres from the airport to the aircraft. In Sydney, a wheelchair had been arranged for her.
In summary, Ms Hammond did not consider that the Applicant required any of the supports that Ms Evans recommended in her report that was prepared more than eight months later. She mentioned that the Applicant was aware of the importance of remaining active, pacing her performance of activities and to manage flare ups. She noted that suitable exercise programs which were free or at low cost for unemployed persons were available in the area. She noted the domestic assistance being provided by SASH and having received a cleaning service in the rural town but in her opinion the Applicant would be able to engage in most domestic activities in a paced manner if motivated to do so. While they may cause some discomfort, they would not cause her harm. She acknowledged that the Applicant had long term health issues which were being managed by her doctors and health professionals and that she continued to require psychological intervention, which was being provided under Enhanced Primary Care, Mental Health Plan.
The Respondent submitted that the diagnosis of ASD Level 1 under DSM 5 means that the Applicant does not require substantial support and therefore she does not have substantially reduced functional capacity in the areas of social interaction and communication.
DSM 5 states that ASD Level 1 requires support and ASD Level 2 requires substantial support. Each definition sets out the associated difficulties with social communication and restricted, repetitive behaviours. Level 1 describes the social communication without supports and Level 2 describes social communication with supports.
In support of that submission, the Respondent argued that the support provided by the treating psychologist over three years had not been substantial. She had helped the Applicant navigate her relationship with her daughter through some counselling available through the health system with some success and had been trying to assist the Applicant to understand her disability and undertake appropriate adjustments. However, the utility of that assistance must be doubted because the Applicant had no recollection of the four hours of assistance she had received to prepare for one medical appointment. Finally, the Respondent submitted that nothing that had been done seems to have assisted the Applicant. Although the relationship with her daughter was being repaired, after seeing the Applicant for over a year and after at least two months of specific attention to that relationship, the Applicant sent an abusive and threatening text to the daughter’s partner.
The Respondent pointed to the Applicant’s capacity in the past to work, and be involved in AA and a theatre group, to support its submission that the Applicant’s functional capacity is not substantially reduced.
In relation to what the treating psychologist described as “masking”, the Respondent argued that the functional capacity resulting from the impairment, ASD, is lifelong. It cannot be changed. That the Applicant has been injured and suffers pain which makes her irritable and more volatile is not the issue. The question is whether the impairment, ASD, results in substantially reduced functional capacity, relevantly in relation to social interaction.
The Respondent acknowledged that in the case of fibromyalgia there may be fluctuating symptoms but that is not the case for ASD. In a condition such as multiple sclerosis, functional capacity may deteriorate over time. ASD is a different case.
Conclusion
The first matter to decide is which OT assessment is to be preferred? Why are the assessments so different? Ms Hammond’s assessment is of someone whose impairments result in relatively little reduced functional incapacity and who does not need all the support she currently has. Ms Evans’ assessment is of a person whose impairments result in substantially reduced functional capacity.
The evidence does not suggest that the different assessments reflect a worsening of one or more of the Applicant’s impairments in the eight months between the assessments, or that she was suffering from a variation in the pain attributable to fibromyalgia when assessed by Ms Evans.
Ms Hammond has been practising as an OT for about 40 years. Ms Evans has been a qualified OT since about 2009 and did some work placements while studying from 2007. I do not consider that the difference in experience is the reason for the different assessments. I accept that both approached and carried out their tasks conscientiously to the best of their ability.
I have considered the criticisms of the tools and methodology used by each of the OTs. I do not consider that is the reason for the difference in the assessments. In my view the difference is the information the Applicant provided verbally and by actions that she could control, to each of the OTs about her functional capacity. Ms Evan’s report relies significantly on the Applicant’s reports and demonstrations of her incapacity.
Ms Hammond observed the Applicant over a period of four hours. She is a very experienced OT. It is not plausible that if the Applicant’s functional capacity was as described in Ms Evans report, Ms Hammond would not have observed it over the four-hour assessment because she did not ask the Applicant to do certain tasks or for any other reason.
The Applicant did suggest in her oral evidence that Ms Hammond did not include or take photographs or refer to the difficulties she had during the assessment, including crying while walking in the cul de sac near her home. That evidence suggests that Ms Hammond was incompetent or less than honest in her report. I do not accept that. That evidence was not put to Ms Hammond.
It is clear that the Applicant was trying to get as many supports as possible from the NDIS, including a dog. She was understandably invested in the NDIS application process over a long period of time. I find that she has exaggerated her functional incapacity when being assessed by Ms Evans, eight months after Mr Hammond’s assessment that did not support a favourable outcome from her NDIS application. Therefore, I cannot rely on Ms Evans’ assessment.
If follows that I am not satisfied that the Applicant has an impairment that results in substantially reduced functional capacity to undertake the activities of mobility or self-care.
The relevant evidence about whether Applicant’s ASD results in substantially reduced functional capacity to undertake communication and social interaction includes the evidence of the OTs and the treating psychologist. For the reasons already given, I cannot rely on Ms Evans assessment.
Applying paragraph 5.8 of the Rules, it is clear that that 5.8(a) does not apply.
What evidence is there that the Applicant usually requires assistance from other people to participate in or to perform tasks or actions required to undertake or participate in either communication or social interaction pursuant to paragraph 5.8(b)?
As summarised during submissions on behalf of the Applicant, the treating psychologist had had 45 sessions with the Applicant between April 2018 and April 2021. They had worked on stress management, responding to acute crises, had done some trauma work and a lot of “working up of social skill deficits” and trying to mend breaches in her social situation, including with her daughter. It was said that the strategies had been effective because the relationship was now “on the mend” but not repaired.
The Applicant’s relationship with her daughter was the only relationship for which she had obtained assistance from the treating psychologist.
During submissions, the Applicant’s evidence that she is unable to bridge the gap with her brothers’ wives was referred to. Both families live nearby. That claim is not supported by other evidence including the Applicants reports in some of the psychologist’s clinical notes and the OTs’ reports. It is not a difficulty that she has reported to the treating psychologist or for which she has sought her assistance, which is somewhat surprising in light of the fact that she moved to the coastal area because her brothers lived there, saw them at weekly gatherings and at least one of them and his wife called in, until COVID-19 struck.
The treating psychologist provided four hours of assistance to prepare for a medical appointment with a specialist and one hour after the appointment. She gave detailed evidence of what that involved. The Applicant had no recollection of the five hours of assistance.
The treating psychologist said that appointments with the treating GP do not require a lot of assistance unless the Applicant knows that the appointment will be challenging for her, in which case a one-hour appointment might be required for preparation.
In the treating psychologist’s opinion, the Applicant requires supports to successfully navigate stressful interpersonal interactions which are significantly greater than those generally expected for others her age. She would benefit from:
·ASD-specific interventions;
·ongoing supportive counselling; and
·support worker assistance to navigate challenging interactions.[21]
[21] Treating psychologist’s report, undated, TB Tab 33, answering questions from the Applicant’s solicitor in relation to the present proceeding, prepared sometime after 14 January 2020, the date of Ms Hammond’s report which was reviewed in the report.
It is doubtful that the Applicant has benefited from treatment she has been given if she did not remember five hours of intensive preparation and debrief for one medical appointment. Her memory deficit may be a result of her cannabis use or her ASD, but that is beside the point. Apart from the improvement in her relationship with her daughter, there is little evidence of improvement. The Applicant does suffer melt downs, but the reliable contemporaneous clinical notes suggest that occurs in medical settings or in relation to her daughter’s partner. The evidence does not support a finding that the Applicant usually requires assistance from other people to participate in or perform tasks or actions required to undertake or participate in either communications or social interactions as required by paragraph 5.8(b) of the Rules. That is consistent with the diagnosis of ASD Level 1.
I am not satisfied that that Applicant is unable to participate in or to perform tasks or actions required to undertake or participate in either communication or social interaction even with assistance from another person according to paragraph 5.8(c) of the Rules.
For those reasons, the Applicant does not have an impairment or impairments that result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking communication, social interaction, mobility or self-care.
It was not suggested that learning or self-management was relevant in this case and the evidence does not support a finding that the Applicant’s impairment or impairments result in substantially reduced functional capacity in either of those domains. I have taken into account the treating psychiatrist’s evidence about the Applicant not remembering the five sessions devoted to one medical appointment, but her opinion was that the Applicant could learn.
For the above reasons, the Applicant does not meet the disability requirement in s 24(1)(c) of the Act. All of the requirements of s 24(1) must be met. She therefore does not meet the access criteria in s 21(1)(c)(i) of the Act.
Early intervention requirements s 25
I did not understand the Applicant to contend that she meets the early intervention requirements of s 25(1) of the Act and the Rules. The issue was addressed in the Respondent’s Statement of Facts Issues and Contentions. For certainty, I accept that the Applicant meets 25(1)(a) of the Act but I am not satisfied that provision of early intervention supports is likely to benefit the Applicant by reducing her future needs for supports in relation to disability (s 25(1)(b)). The treating psychologist filled out the application form. Her answers to the relevant questions did not suggest that the Applicant would so benefit. The evidence does not demonstrate that that Applicant would benefit from the provision of early intervention supports.
Decision
For the above reasons, the reviewable decision dated 7 May 2019 is affirmed.
I certify that the preceding 227 (two hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
.................................[sgd].......................................
Associate
Dated: 25 February 2022
Date(s) of hearing: 12, 13, 14 and 30 April 2021
26 and 28 May 2021Solicitors for the Applicant: S Parker, Legal Aid NSW Counsel for the Respondent: R Francois Solicitors for the Respondent: C Bilboe, National Disability Insurance Agency
Goldenberg DL, Clauw DJ, Palmer RE, Clair AG. Opioid Use in Fibromyalgia: A Cautionary Tale. Mayo Clin Proc. May 2016;91(5):640-648, EC, Hemingway SL. Cannabinoids for fibromyalgia pain: a critical review of recent studies (2015-2019). J Cannabis Res. 2020 May 29;2(1):19. doi: 10.1186/s42238-020-00024-2.
Ashton CH. Pharmacology and effects of cannabis: a brief review. Br J Psychiatry. 2001 Feb;178:101-6. doi: 10.1192/bjp.178.2.101.
Australian Government, Therapeutic Goods Administration, Guidance for the use of medicinal cannabis in the treatment of chronic non-cancer pain in Australia. Version 1, December 2017. Canberra. Available from
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