Jones and National Disability Insurance Agency
[2021] AATA 852
•13 April 2021
Jones and National Disability Insurance Agency [2021] AATA 852 (13 April 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/4661
Re:Mitchell Jones
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:R Cameron
Date:13 April 2021
Place:Melbourne
The direction made on 24 February 2021, that on or before 24 May 2021, the Respondent must lodge with the Tribunal and provide to the Applicant the occupational therapy report prepared by Ms McLaughlin, is revoked.
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R Cameron, Senior Member
Catchwords
PRACTICE AND PROCEDURE – National Disability Insurance Scheme Act 2013 (Cth) – application for review of decision to approve statement of supports in participant plan – interlocutory application to revoke direction involving Applicant undertaking occupational therapist assessment – risk of suicide or suicidal ideation – procedural fairness – natural justice – direction revoked – application granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
BKQQ v National Disability Insurance Agency [2021] AATA 732
REASONS FOR DECISION
R Cameron
13 April 2021
This case has an unfortunate history.
The Applicant, aged 37 years, has been diagnosed with Generalised Anxiety Disorder, Attention Deficit Hyperactivity Disorder, level two Autism Spectrum Disorder and Complex Post Traumatic Stress Disorder and major depressive disorder.[1] He is the beneficiary of an NDIS plan. Such plan is made under the National Disability Insurance Scheme Act2013 (“the NDIS Act”).
[1] Applicant’s submissions for directions hearing dated 17 March 2021 (“Applicant’s 17 March submissions”), [3]; Respondent’s statement for directions hearing dated 23 February 2021 (“Respondent’s 23 February submissions”), [4].
He seeks a review of a decision made by the Respondent approving a statement of participants supports.[2] Presently, he seeks further supports in a 12-month plan as follows:
(a)Assistance with animal training to the value of $3,300;
(b)90 days of medium-term accommodation; and
(c)An increase to 40 hours per week of support worker assistance.[3]
[2] ‘T’ Documents, T2.
[3] Applicant’s 17 March submissions, [13].
The internal review decision which is the subject of this application confirmed a previous decision that the Respondent agency would not fund these supports sought by the Applicant as they were not considered reasonable and necessary.[4]
[4] T2.
The application was made to the Tribunal on 30 July 2020.[5] There have been no less than three case conferences and three directions hearings in this matter.
[5] T1.
At a directions Hearing on 24 February 2021, the following Direction, amongst others, was made:
“On or before 24 May 2021, the Respondent must lodge with the Tribunal and provide to the Applicant the Occupational Therapy report prepared by Ms McLaughlin.”
At the directions Hearing on 24 February 2021, some time was spent addressing submissions made by both parties on the question of retainer of an expert witness by the Respondent for the purposes of carrying out an assessment of the Applicant in anticipation of a final hearing of the application. The Respondent submitted that it wished to have the Applicant assessed by an occupational therapist. The Applicant’s representative contended that a psychologist was more suitable.
Without going into any particular detail, the Tribunal ruled that the Respondent was entitled to retain the expert of its choice (Ms McLaughlin, an occupational therapist) to conduct the assessment as it saw fit and made the Direction referred to above. In having made that observation, it should be noted that in applications of this kind it is frequently the case that the Respondent agency will retain the services of an occupational therapist to conduct an assessment of the Applicant. The rational basis for retainer of occupational therapists is frequently because an assessment of functional capacity is required to determine whether the supports sought by the Applicant in the proceeding are reasonable and necessary.
Following the making of the order at the directions Hearing on 24 February 2021, it appears that the Applicant’s legal practitioners informed the Applicant of the directions made. Following them doing so, they became concerned about the effect on his mental health and in particular what he might do to himself if he were required to submit to an assessment by an occupational therapist. They immediately sought a further urgent directions hearing for the purposes of having the requirement or Direction that the Applicant submit to an examination by an occupational therapist revoked.
A further directions Hearing was convened on 12 March 2021. In addition to the legal representatives making submissions, the Applicant’s general practitioner Dr Coldwell and the Applicant himself made submissions. The Applicant’s submissions to the Tribunal were unseemly. However, they probably reflect the mental health conditions from which he suffers.
Also, before the Tribunal was a report from Dr Coldwell of 12 March 2021 in support of the application to revoke the Direction that the Applicant be required to submit for an examination by an occupational therapist. In that report and in her oral submissions to the Tribunal, Dr Coldwell expressed the opinion that if the Applicant was requested to see an occupational therapist rather than a psychologist for an expert assessment he would simply refuse to cooperate. She also expressed the opinion that he would be traumatised by such Direction to the extent that it would reflect what he perceives to be the Respondent not caring about him and his life, and that he would become suicidal or experience suicidal ideation. Indeed, on this point in an email to the Tribunal on 30 March 2021, the Applicant’s legal advisers informed the Tribunal that upon advising the Applicant of the Respondent’s written submissions “his response was that he will end his life if he is required to see an OT”.
Apparently, the Applicant was assessed by another occupational therapist and a report produced dated 13 August 2020.[6] There was some debate in the material about who retained the services of this occupational therapist.[7] For the purpose of these reasons the Tribunal does not need to adjudicate on the question. Dr Coldwell, in an earlier report of 19 February 2021, observed that the experience the Applicant had with that assessment “caused a significant decline…” in his “mental health”. She explained why another assessment with an occupational therapist would be inappropriate.
[6] Respondent’s 23 February submissions, [15].
[7] Ibid.
The Respondent reiterated that it ought to be able to require the Applicant to submit for an examination from the expert of its choice, including, if necessary, an occupational therapist. The assessment of the Applicant’s functional capacity was again emphasised as being highly relevant to the task that the Tribunal has to undertake in the hearing of this application. Emphasis was also placed upon notions of procedural fairness. It would in effect hamstring the Respondent from being able to introduce and use all necessary, relevant and probative evidence to assist the Tribunal to reach the correct and preferable decision in accordance with its obligations under the Administrative Appeals Tribunal Act1975 (“the AAT Act”). It was also contended, with respect to the opinions expressed by Dr Coldwell, that she is a general practitioner not a psychiatrist.
The Tribunal invited written submissions from both parties which have now been filed. The written submissions filed largely amplify the oral submissions that were made during the directions Hearing on 12 March. They need not be repeated in any detail.
However, the Tribunal considers it appropriate to briefly summarise the principal contentions advanced by the Respondent. They are as follows:
(a)it would be a denial of procedural fairness if the Respondent were prevented from obtaining relevant and responsive evidence. It ought to be entitled to brief the expert of its own choosing;
(b)an occupational therapist with mental health experience would be able to consider a broader range of issues, for example, observations concerning functioning in a community setting;
(c)if the Applicant did not attend an independent assessment with an occupational therapist, the Respondent would not be able to properly test the Applicant’s evidence which it is entitled to do;
(d)Dr Coldwell’s opinion must be seen in the light of the fact that she is a general practitioner, not a psychologist or psychiatrist. In substance therefore, less weight should be given to such an opinion;
(e)whilst the Applicant may experience difficulty and stress attending an occupational therapist for an assessment, it is a difficulty that must be confronted as part of the process, much the same way as the Applicant will face at a hearing of his application;
(f)the appropriate measures could be put in place to accommodate the Applicant and make the assessment as comfortable as possible for him; and
(g)finally, an independent expert has an obligation to assist the Tribunal.
It was considered appropriate to deliver short written reasons by way of a ruling on this application.
There is no doubt that the AAT Act confers power on the Tribunal to order or direct a party to submit to an examination by an expert selected by the other party to the application. It is a broad power consistent with the objects of the AAT Act found in section 2A.
In appropriate cases however, the Tribunal can decline or refuse an application for an order or direction compelling a party to submit to assessment by an expert retained by another party to the application. It becomes a question of the exercise of the discretion. The approach to be adopted in various cases has been rather helpfully considered by Member Buxton in the recent decision of BKQQ v National Disability Insurance Agency.[8]
[8] [2021] AATA 732.
There is much force in each of the contentions relied upon by the Respondent. In particular, the possibility of a denial of procedural fairness. The Tribunal cannot conclusively adjudicate on this question in a directions hearing. However, it must be alive to this question at all times. Similarly, the Respondent must be given every opportunity to properly test the Applicant’s evidence. To not be able to do so also has the potential to result in a denial of natural justice.
There is also much force in the Respondent’s contention that there is the possibility that a psychologist would be limited in terms of their ability to express an expert opinion about the Applicant’s functional capacity when compared with that of an occupational therapist with mental health experience. A consideration of the Applicant’s functional capacity is relevant to an application of the criteria to be taken into account under section 34(1) of the NDIS Act in determining whether the supports sought are reasonable and necessary for him.
Whilst the Tribunal acknowledges that Dr Coldwell is not a psychiatrist or a psychologist, she is nonetheless a qualified medical practitioner. She has been the Applicant’s treating general practitioner for several years and must have a sound appreciation of his mental health conditions and their manifestations. Additionally, she has seen fit to produce two reports that have been received by the Tribunal. There was no contradictory expert opinion to those expressed by her in such reports. The contents were not seriously challenged. The opinions expressed by Dr Coldwell in her reports, together with her oral submissions to the Tribunal, were a genuine expression of professional opinion based upon her assessment of the Applicant and were not fanciful or exaggerated. The issue is a question of weight. The Tribunal sees no reason not to accept her assessment on this topic.
The Tribunal acknowledges the preparedness of the Respondent agency to adopt measures to accommodate the Applicant’s position during a proposed assessment with the occupational therapist Ms McLaughlin.[9] The Tribunal has no doubt that she is a dedicated and sympathetic professional who would do her best to ensure that the Applicant would be comfortable during the course of any assessment. It also acknowledges the preparedness of the Respondent to permit a support person to be present during such assessment and that it be undertaken at a location suitable to the Applicant. However, on the material before it, particularly the assessments given by Dr Coldwell, the Tribunal cannot be satisfied that the measures proposed by the Respondent would be sufficient to eliminate the risk of suicide or suicidal ideation on the part of the Applicant. It is a risk that the Tribunal is not prepared to take.
[9] Respondent’s 23 February submissions, [16].
Accordingly, the Tribunal is satisfied that there is a risk of suicide or suicidal ideation if the Applicant is required to undergo an assessment from an occupational therapist. At this time, the Tribunal cannot be satisfied that such risk is outweighed by the benefits to be obtained by such an assessment being undertaken. This includes the benefits of perhaps the best evidence, or expert opinions, that would enable it to reach the correct and preferable decision.
This is a risk that the Applicant and those advising him must take into account and presumably will make a professional judgement call on. It may be, and the Tribunal cannot reach a conclusion on this question at this time, that it will limit the evidence before it in such a way that it will be unable to determine whether the supports that are sought by the Applicant should be included in his NDIS plan.
As for questions of procedural fairness, the Respondent will be able to ventilate them with full force and effect at the final hearing of this application. It will be a relevant consideration to be taken into account by the Tribunal in assessing all issues upon which it is required to adjudicate. It may be highly relevant once again, in determining the merits of the Applicant’s case. It is, similarly, a matter that the Applicant and those advising him will have to make a forensic judgement call on.
The Tribunal notes that the matter has now been fixed for a final hearing in September.
For these reasons, the Direction made on 24 February 2021, that on or before 24 May 2021, the Respondent must lodge with the Tribunal and provide to the Applicant the occupational therapy report prepared by Ms McLaughlin, is revoked. For the avoidance of any doubt the Tribunal finds that the Applicant is not obliged to undergo an assessment with an occupational therapist retained by the Respondent. As for the question of whether he can or should be assessed by a psychologist, the Tribunal will not give any direction at this time, but should the Respondent wish to avail itself of this option it expects that the parties will co-operate to ensure that it occurs.
28. I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
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Associate
Dated: 13 April 2021
Dates of directions hearings: 24 February and 12 March 2021 Advocate for the Applicant: Ella Casey Solicitors for the Applicant:
AED Legal Centre
Counsel for the Respondent: Joshua Sproule
Solicitor for the Respondent: National Disability Insurance Agency
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