Jansen v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] HCATrans 279

[2008] HCATrans 279

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M34 of 2008

B e t w e e n -

BERNARD ANTHONY JANSEN

Applicant

and

SECRETARY DEPARTMENT OF FAMILIES HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 1 AUGUST 2008, AT 1.59 PM

Copyright in the High Court of Australia

MR S.G.E. McLEISH, SC:   If the Court pleases, I appear with my learned friend, MR J. GEALE, for the applicant.  (instructed by Deacons)

MR P.J.  HANKS, QC:   If the Court pleases, I appear with MS J.K. MACDONNELL for the respondent.  (instructed by Australian Government Solicitor

GLEESON CJ:   Yes, Mr McLeish.

MR McLEISH:   If the Court pleases, the special leave point in this case concerns the test when a person applying for disability pension has refused medical treatment and what is involved in the concept of compelling reasons for refusing that treatment.

GLEESON CJ:   In the slightly wider context of stabilisation?

MR McLEISH:   In the context of stabilisation, yes, your Honour.  The test, in our submission, had previously been subjective.  In this case the Full Court has introduced an objective element into the test, in our submission by inappropriate and inapt analogy drawn from migration law and without proper regard, in our submission, to the different context of social security law in which the question arises.

In the present case there was treatment available for the applicant’s depression and anxiety which included prescription medication.  However, he was reluctant to take that medication because of past experience of serious side effects.  The evidence was that he therefore “self‑medicates”, to use the expression in the judgments, with alcohol instead.  The applicant also had required treatment for his alcoholism.

The issue arises, as your Honour the Chief Justice said, in considering whether the applicant’s condition was fully diagnosed, treated and stabilised so that it can be decided whether the condition is permanent.

GLEESON CJ:   I am not saying it could have been, but the case was not run on the basis that the condition was dependence.

MR McLEISH:   The case was not that it was dependence, your Honour, but that he had a depression and anxiety which required medication of some kind and that the treatment that he was under was self‑medication using alcohol because of his aversion to prescription drugs and prescription antidepressants.  The critical words appear in what we have called paragraph [c], for want of a better reference, which appears on page 52 of the application book.  At paragraph 17 of our summary we have set out paragraph 6 of Schedule 1B to the Act.  We have introduced lettering and dot points and some bolding, but apart from the bolding, the setting out is the same as in the legislation, which unfortunately does not contain any of those sub‑references.

I will come to paragraphs [a] and [b] shortly, but the critical paragraph is paragraph [c].  The first sentence of that paragraph immediately describes this very case.  It reads:

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.

The present case involves just such risks or side effects unacceptable to the applicant.

GLEESON CJ:   What the risks or side effects?

MR McLEISH:   The risks or side effects are not specified by the applicant but his previous experience of adverse side effects leads him to not wish to take prescription medication of any kind.

GLEESON CJ:   But are we looking at risks or side effects of stopping drinking?

MR McLEISH:   We are looking first at the risks and side effects of taking prescription medication.  If he stops drinking he will need something else to deal with his depression and anxiety, namely the prescription drugs.  Therefore, stopping drinking is only part of the story.  Stopping drinking would involve exposing him to the risks or side effects of the other drugs.  By itself of course there are not risks or side effects from stopping drinking but in this case as a result of ‑ ‑ ‑

GLEESON CJ:   I might not have understood the facts sufficiently.  I am actually looking at page 7, line 25, which is the finding of the Tribunal.  I had thought, and I may be wrong about this, that the range of treatment options included giving up drinking under supervision of some kind, but without taking the drugs that have the side effects.

MR McLEISH:   The giving up of drinking by itself would not have dealt with the depression or anxiety, your Honour.  Unfortunately, it is not set out in the judgments below but Dr Katz’s report which was before the Full Court does expressly advert to his belief that it would seem evident that he should be placed on a named antidepressant agent.  It is a whole package of treatment, if I can put it that way.  There were a number of tests to be carried out and some counselling, but critically the stopping of drinking; therefore the need to deal with the depression and anxiety in a different way.  To the applicant they are all part of the wrapped‑up course of treatment that, because of his aversion to prescription medication, is unacceptable to him.

The second sentence of the paragraph I have called paragraph [c], on which the claim foundered in the Full Court, that is the sentence that says:

In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

the Full Court erred, in our submission, first in placing undue emphasis on the fact that the decision is to be made by the relevant medical officer.  The decision is subjective in that sense to the medical officer but it tells one nothing about the content of the decision the medical officer has to make.  In particular, the fact that the decision is to be made by a medical officer does not determine whether the officer is required to decide whether the applicant has a genuine reason rather than simply a good reason.

GLEESON CJ:   I think what has been prompting my questions to you is shown by the word “other” in bold in paragraph 40 on page 40.  I had read the reference to “other” treatment options as a reference to treatment options not including depression/anxiety medication which had the side effects just referred to.

MR McLEISH:   What the Full Court appears to be doing in this paragraph is – it is an alternative ground for its decision in which it seeks to put to one side treatment for alcoholism and separates that from the other forms of treatment.  In our submission, that was flawed because it cannot be taken out of the basket of treatment options that need to be undertaken, nor can the alcoholism be viewed in isolation from depression and anxiety.  The reason for not wanting depression or anxiety treatment ends up being exactly the same as the reason for not wanting the other treatment options which ‑ ‑ ‑

GLEESON CJ:   What are the other treatment options?

MR McLEISH:   It appears the Full Court is referring to treatment for alcohol dependence, and that would be a detoxification program.  The treatment aims at ceasing drinking, essentially.  That is what gives rise to the same problem as the treatment options directed directly to his depression because once he ceases drinking he is deprived of the medication which he chooses to use to deal with his depression and anxiety, therefore exposing him to the need to use the prescription medication for that condition which he does not want to use.

Our submission about paragraph 40 is that it was artificial for the Full Court to seek to put the treatment for depression and anxiety on one hand and to say that there are other treatment options.  Those do not appear to be other treatment options for depression and anxiety.  In my submission, the Full Court was not referring to treatment options which did not involve medication.

The Full Court relied on your Honour Justice Crennan’s construction of a provision in the migration regulations in the case of Paduano which required the Minister for Immigration to be satisfied that a visa applicant had not been absent from Australia for a continuous period of five years unless there were compelling reasons for the absence.  Your Honour held that the visa applicant must be the person compelled by the reasons for the absence.  In our submission, it is the same in this case.  The subjective test for which we contend is that the pension applicant must be compelled by the reasons for declining treatment.

Your Honour went on to hold – this appears in the application book in the judgment of the Full Court at the bottom of page 39:

If, as I think is correct, the applicant is the one who must have been ‘compelled’ by the reasons for his absence, the requirement that the Minister be satisfied in respect of them means that the Minister is entitled to make a judgment as to whether the reasons for the absence are forceful, and therefore convincing by reference to some standard of reasonableness such as a reasonable person in the same circumstances as the appellant.

We say that is distinguishable because in the present case, firstly, there is no similar requirement of satisfaction.  A requirement of satisfaction inherently brings with it standards by which that state of satisfaction must be reached and is readily amenable to the kinds of reasonable standard which your Honour referred to.  The decision under Schedule 1B is a determination that the medical officer does not have to reach a state of specified satisfaction.

We also submit that a decision about a person’s own future wellbeing is inherently a personal matter and it is different in quality from a decision as to whether a person’s reasons for being outside Australia were compelling.

GLEESON CJ:   I am sorry to nag about these factors, Mr McLeish, but the treatment that the Tribunal said was the recommended treatment – that is the treatment referred to in paragraph 16 on page 7 is, is it not, the treatment recommended by Dr Katz, which is summarised at the bottom of 3 and the top of 4?

MR McLEISH:   Yes.

GLEESON CJ:   Now, does Naltrexone involve these side effects referred to in paragraph 14?

MR McLEISH:   Not specifically, your Honour. The side effects were to do with antidepressants.

GLEESON CJ:   Yes, quite.  That is why, as I read paragraphs 14, 15 and 16 of the Tribunal’s reasons, it was saying he has a good reason for not wanting to go on these depression/anxiety drugs.  We accept that, but he is not prepared to accept the recommendations made by Dr Katz referred to at the bottom of 3 and 4 because he is not ready to give up drinking.  Therefore, the Tribunal says, he has not demonstrated a genuine reason for refusing other treatment options.  That, I had taken to be what the Full Court was talking about in paragraph 40.

MR McLEISH:   Your Honour, the description of Dr Katz’s recommendations at the bottom of page 3 of the book is quite incomplete.  That is possibly what gives rise to the difficulty.  It is regrettable that it is not before the Court.  My learned friend will let me know if I have misrepresented the position here.  The other treatments did include a recommendation – a statement that it seemed evident to Dr Katz that he should be placed on an antidepressant agent and he nominates the particular drug whose name I cannot read.  It is granted that there are treatment options at the bottom of page 3 and at the top of page 4 including counselling, a reassessment of his psychiatric state, a referral to the social worker, et cetera, but that is not a complete account, unfortunately, of the recommendations of Dr Katz.

When one looks at paragraph 6 back on page 52 of the application book it is apparent from subparagraphs [a] and [b] of that paragraph that they are concerned with the question of what is reasonable treatment.  Reasonable treatment is defined extensively there and we submit that is by reference to objectively ascertainable criteria such as one would expect a medical officer to be applying.

When we come to paragraph [c], however, the emphasis shifts to the person themselves and a subjective evaluation of whether the treatment already determined to be reasonable is acceptable to that person.  It is in that context that we submit that the reference to medical or other compelling reason for a person not undertaking further treatment must be a subjective reference.  Your Honours will have seen that the test for which we contend

was that applied by Justice Smithers in Dragojlovic.  Granted there were differences in the legislation there, but the statement of the underlying policy of the Act in our submission is a surer guide to the likely meaning of paragraph 6 than the provisions of migration law on which the Tribunal depended.

There are good policy reasons why a subjective approach would have been tendered by Parliament.  It would be invidious, we suggest, to expect medical officers to assess the reasonableness as distinct from the genuineness of an applicant’s grounds for refusing treatment.  There may be religious grounds, there may be superstitious grounds, there may be other cultural grounds which a doctor might find objective and compelling but which the Tribunal is able to determine are genuinely preventing a person from accepting treatment.

There is a second basis on which we submit that the Full Court’s separation of alcohol abuse and the depression and anxiety does not reach the result that the Court reached.  That appears at page 36 of the application book.  In paragraph 25 of their Honours’ reasons at the end of that paragraph they note that there was a rating of 20, which is the minimum rating for a pension for depression and anxiety and 30 for alcohol abuse.  In other words, it was necessary for the application for a pension to be refused for the applicant to fail in relation to both of those conditions.  We submit that the way in which the Full Court treated the matter in paragraph 40 dealt only with the alcohol abuse and left the problem of depression and anxiety to one side.

GLEESON CJ:   Thank you.

MR McLEISH:   For those reasons we submit that the decision of his Honour Justice Heerey was correct and that it should be restored and that the case is suitable for the grant of special leave.  If the Court pleases.

GLEESON CJ:   Thank you, Mr McLeish. Yes, Mr Hanks, it is right, is it, that this case has never been presented or decided as a case, as it were, about dependence?  It is a case in which the condition is anxiety or depression, is that right?

MR HANKS:   There are a series of conditions, your Honour.  That is one of them, anxiety and depression is one.  We understand that the Tribunal has made some findings of fact based on the evidence and that those findings of fact are the core for any argument that there has been an error of law on the part of the Tribunal.  We are of course dealing with appeal under section 44 of the AAT Act which is distinctly limited to a question of law, and as we have always understood it, the question of law that was sought to be agitated was, it was said, that the Tribunal had asked itself the wrong question.

GLEESON CJ:   The Tribunal actually followed the authority that your opponent relies on.

MR HANKS:   That is our understanding, your Honour, and that is why we say that the matters that our friends seek to agitate do not arise in this matter.  If I could take your Honour the Chief Justice up on that point and take your Honour first to page 70 in the appeal book.  I am now looking at the applicant’s reply, and I wish to take the Court, if I could, to paragraph 9.  As we understand it, what our friends have done there, at the beginning of paragraph 9, is to articulate what they say is the proper question to be asked and that is a question which is, as I think our friends have indicated this afternoon, inspired by the Federal Court judgment in Dragojlovic.

If we look at that formulation, whether the pension applicant was genuinely compelled by his fears regarding the proposed medical treatment to refuse that treatment, we then go back to the findings of fact made by the Tribunal.  In paragraph 16, page 7 in the appeal book, and some attention has already been paid to this paragraph, in the middle of the paragraph there is a finding by the Tribunal:

in all the circumstances, Mr Jansen’s refusal to undertake the range of treatment options is not genuinely based on grounds that compel him, acting honestly, to refuse.

GLEESON CJ:   Did he ever say, not “I don’t want to stop drinking”, but “I can’t stop drinking”?

MR HANKS:   No.  There is no finding to that effect, your Honour.

GLEESON CJ:   So this is not a case about addiction in that sense.

MR HANKS:   No.  I think, as our friends have put it, it is a case about self‑medication or at least so described self‑medication.  We could go back to earlier in the Tribunal’s reasons as our friend has and as the Chief Justice has to that critical paragraph where the evidence of Dr Katz is summarised.  It is paragraph 6 and it sets out a range of recommended treatments including medical investigations, detoxification, a reassessment of the psychiatric state, psychological counselling and the use of Naltrexone.  None of those, of course, is the antidepressant drugs that our friends have referred to.

If I could answer the Chief Justice’s earlier question, at the beginning of paragraph 5 Mr Jansen had noted various treatment options and told the Tribunal that he would not be able to attempt detoxification at present because he was not ready to give up his drinking.

GLEESON CJ:   Yes.  On page 40 at line 50 the Full Court says:

The fact that Mr Jansen did not want to cease drinking could hardly amount to a compelling reason for refusing that treatment.

They did not deal with a case, because as I understand it there was not a case, that he could not cease drinking.

MR HANKS:   Your Honour, the courts dealt with the case as found by the Tribunal.  In an appeal of this kind, the findings of fact that are made by the Tribunal are definitive.  What the Tribunal has found, quite plainly, is that this man has a series of medical conditions which could be disabling.  They cannot be assessed for the purposes of impairment rating until they have stabilised.  Before they are stabilised they have to be treated, but there are circumstances in which treatment would not be insisted on, if I can put it in that way.  The Full Court found that those circumstances were where the medical officer found that there was a genuine, reasonable basis for resisting the treatment.

It seems, to return to your Honour’s observation earlier, that the Tribunal did not apply such a strict standard to the present applicant, that is that the Tribunal having found that he had a reason for not undergoing treatment involving medication, and that is a finding which is made in paragraph 14 of the Tribunal’s reasons on page 6 – went on to find that he was not prepared to consider various other treatment measures and identified what they were – detoxification, counselling, liver function tests and I believe others as well.

The Tribunal then found that there was no real risk of harm to the applicant, concluded that the treatment was reasonable in the circumstances and, as we understand it, there is no attempt to challenge that finding and we would say nor could there be.  It is a finding of fact.  Then comes what we understand to be the critical finding that the applicant had not demonstrated a genuine reason for refusing treatment options other than medication.

We note that the primary judge was critical of the use of the word “genuine”.  We responded to that criticism before the Full Court by drawing their Honours’ attention to the fact that before the Tribunal the applicant’s counsel had posed the genuineness of the reasons as a central question for the Tribunal to decide.  That observation, as we understand it, was simply dealing with a particular written submission that was made on behalf of the applicant.

Having made that finding in paragraph 16 the Tribunal then went on to conclude its reasoning and to make the finding to which I have already referred that:

Mr Jansen’s refusal to undertake the range of treatment options is not genuinely based on grounds that compel him, acting honestly, to refuse.

Not only is that, as we understand it, the formulation for which our friends contend, but it is almost a precise reproduction of what was said in Dragojlovic, almost precisely the words used in Dragojlovic at page 305 of the Federal Court Reports.

Now, we have understood that our friends, at least in writing, have submitted that there was a finding either made by the Tribunal or made by the primary judge that the applicant’s reasons for refusing to undertake the treatment program were interrelated.  As we understand it, the way in which that is put, at least forensically, is that if this man had a resistance to and a reasonable and proper resistance to antidepressant medication, then he was necessarily properly and reasonably resistant to the other forms of treatment because of the interrelationship between those forms of treatment.

We have noted in our friends’ written reply that there is a statement – and I will just turn it up, if I might – at page 69 of the application book, this is a reference to the reasons for refusing to undertake the treatment program being interrelated.  It said:

A finding to that effect was made expressly by Heerey J, in an orthodox exercise of the Court’s powers in its original jurisdiction under s 44 -

There is a reference given to paragraph 16 of the primary judge’s reasons.  We have two answers to the way in which it is put.  The first of them is that Justice Heerey made no such finding.  All that he did in paragraph 16 was to repeat or to acknowledge a submission made by counsel who appeared for the present applicant right at the end of the paragraph, but there is no finding.

An even more fundamental objection would be that that is in no way an orthodox exercise of the Federal Court’s powers when it hears an appeal under section 44.  That appeal is on a question of law.  There is, of course, provision in subsection 44(7) for the Federal Court to make findings of fact where, but only where, particular circumstances are shown or present.  None of those was even considered by the primary judge. 

One could put it this way, that he properly recognised that it was not within his jurisdiction to make findings of fact, this not being one of the exceptional cases covered by subsection 44(7), and properly recognised in that he made no findings of fact.  So, in our submission, the interrelationship contention is without any substance.  We have the findings of fact made by the Tribunal.  The Tribunal makes no such finding.  There is a series of conditions.  There is a series of different forms of treatment to address those conditions.  One of those forms of treatment may well have involved antidepressant drugs.  The Tribunal accepted that the applicant had a good reason for resisting that form of treatment.  The Tribunal said it looked at the evidence, “We have spoken to the applicant, we have heard him.  Our finding is he has no reason for resisting the other forms of treatment.” 

Now, I have said nothing to this point, your Honours, about the way in which the Full Court approached the construction of the introduction to Schedule 1B to the Social Security Act, but we think that their Honours’ reasons speak for themselves.  They tracked the history of the Act from its first enactment in 1991 when it replaced the 1947 Act, which was the version of the Act that was under consideration in Dragojlovic and their Honours demonstrated, we believe, that there was a radical break with the form of the legislation in the 1947 Act and that the 1991 Act did make the existence of a reason which genuinely compelled a person to not undergo medical treatment.

It made that a matter to be determined by, first of all, the medical officer and then of course on review by the Administrative Appeals Tribunal.  It does not put all the decision making in the hands of the man or woman with the white coat.  There is a proper form of administrative review which is available.

However, if I might make the point as shortly as I can, we say the Full Court construed the introduction to Schedule 1B correctly.  We say that even if the Full Court’s construction was ‑ how shall we put it ‑ too tight, did not leave sufficient leeway for an applicant for a pension to invoke her or his own objections to treatment, the findings of fact made by the Tribunal plainly show that in this case there were no genuine reasons advanced by the applicant for resisting the other forms of treatment.  That should be sufficient, your Honours.

GLEESON CJ:   Thank you, Mr Hanks.  Yes, Mr McLeish.

MR McLEISH:   Your Honours, as to findings of fact by the Tribunal, to the extent that the Tribunal did not address the question of interrelationship, we submit that it ought to have, but it did allude to the evidence of requiring further antidepressants.  In paragraph 8 on page 4 of the appeal book, the

opinion of Dr Stephens is referred to, that Mr Jansen may require further antidepressant and/or counselling.  In paragraph 13 on page 6 there is what we submit is an elliptical reference to the specific matter I referred to earlier:

The Tribunal notes that his treating doctor sees possible value in medication and counselling.

It is true that the Tribunal did use the words of the Dragojlovic test, which we have called the subjective approach, but as Justice Heerey held, the whole tenor of the Tribunal’s decision at paragraph 15 is the application of an objective test relying on the concept of a real risk of harm and determining whether the Tribunal – the treatment is reasonable in the circumstances and in the best interests of Mr Jansen.  As his Honour Justice Heerey held the correct test requires an examination of whether the stated reasons are genuine.  If the Tribunal was to make a finding that the applicant “was not acting bona fide”, as his Honour said on page 18 of the application book:

fairness would demand a clear finding to that effect, with reasons.  The lack of such a finding points to a conclusion that the Tribunal misunderstood the correct test –

even though it used the correct words.  Our friends draw attention to the submission that was made before Justice Heerey by my learned junior about the interrelationship between the different forms of treatment.  It is possible that we have read more than his Honour intended in setting out that submission.  However, it is quite plain from that submission that the construction of the case which I am advancing to your Honours today was the same as the one put below.  In other words, the question of the interrelationship between the forms of medication has been a live issue all along and it is that question which the Full Court failed to deal with in paragraph 40 when it came to its alternative grounds for decision.

My learned friend says that the Full Court demonstrated a radical break in 1991 from the previous legislation.  It is open to debate, I would submit, whether there was that break but, in any event, as the material at tab 7 of the respondent’s materials, which is the explanatory memorandum for the 1997 Bill, indicates, one purpose of that ‑ and it is the only clue we have found in the extrinsic materials on this point – is said to be the clarification of issues such as “enforced” treatment.  In our submission, that suggests that if there was the radical break, of which our learned friends speak, in 1991, then it was the intention of Parliament in 1997 to address that and to return the law to the position as it was when Dragojlovic was decided.  If your Honours please.

GLEESON CJ:   Having regard to the findings of fact made by the Tribunal and the reasons given for its decision and the further ground of the Full Court’s decision expressed in paragraph 40 of the reasons of the Full Court, the case is not a suitable vehicle for considering the issue of construction which the applicant seeks to raise.  We are not persuaded that the interests of justice require a grant of special leave.

The application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 2.39 PM THE MATTER WAS CONCLUDED