McCutcheon and National Disability Insurance Agency
[2015] AATA 624
•21 August 2015
McCutcheon and National Disability Insurance Agency [2015] AATA 624 (21 August 2015)
Division
National Disability Insurance Scheme Division
File Number(s)
2015/1624
Re
Kylie McCutcheon
APPLICANT
And
National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date of decision
Date of reasons21 August 2015
24 August 2015Place Melbourne The decision under review is set aside and in its place the decision is substituted that chiropractic treatment is a reasonable and necessary support for Ms McCutcheon.
........................................
Senior Member J F Toohey
CATCHWORDS – NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – spina bifida – scoliosis – whether chiropractic treatment a reasonable and necessary support – whether chiropractic treatment will be, or is likely to be, effective and beneficial having regard to current good practice – whether most appropriately funded through the NDIS – whether more appropriately funded through general health system – decision under review set aside
Legislation
National Disability Insurance Scheme Act 2013 ss 3, 4, 5, 9, 21, 33, 34, 48(4) & (5), 100(6), 103, 209(3)
Cases
TKCW and National Disability Insurance Agency [2014] AATA 501
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Operational Guideline – Planning and Assessment – Supports in the Plan – Interface with Health
The Australian Oxford Dictionary
Chronic Disease Management – Individual Allied Health Services under Medicare
Hidalgo et al “The efficacy of manual therapy and exercise for different stages of non-specific low back pain: an update of systematic reviews” Journal of Manual and Manipulative Therapy 22: 59-74 (2014)
Bronfort et al “High-quality evidence that spinal manipulative therapy for chronic low back pain has a small, short term greater effect on pain and functional status compared with other interventions” Evidence-Based Medicine 17: 81-82 (2012)
Thomas S Webb “Optimising Health Care for Adults with Spina Bifida” Development Disabilities Research Reviews 16: 76-81 (2010)
Terri Mears “Spina Bifida Adult Resource Team (SBART) Service Evaluation” Northcott (2015)
REASONS FOR DECISION
Senior Member J F Toohey
24 August 2015
Background
Ms Kylie McCutcheon has spina bifida, scoliosis, Perthes’ disease in her left hip, chronic renal failure and heart disease. She is a participant in the National Disability Insurance Scheme (NDIS) and receives funding for a number of reasonable and necessary supports.
Ms McCutcheon seeks review of a decision by the National Disability Insurance Agency (NDIA), the agency responsible for administering the NDIS, that chiropractic treatment is not a reasonable and necessary support within the meaning of the National Disability Insurance Scheme Act 2013 (the Act).
The National Disability Insurance Scheme
The NDIS commenced operation on 1 July 2013. It provides supports for people with disability in the form of coordination, strategic and referral services; funding to persons or organisations to enable them to assist people with disability to participate in economic and social life; and funding for reasonable and necessary supports for persons who qualify to be participants in the NDIS.
The objects of the Act are set out in s 3. As well as giving effect to Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities, they include:
· supporting the independence and social and economic participation of people with disability;
· providing reasonable and necessary supports for participants; and
· enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.
Section 4 sets out general principles by which actions under the Act are to be guided. Section 5 sets out further principles by which actions of persons who may do acts or things under the Act on behalf of others are to be guided.
The importance of ensuring the financial sustainability of the NDIS so that it functions as an insurance-based scheme to maximise the participation, productivity and inclusion of people with disabilities, is emphasised throughout the Act. When giving effect to the objects of the Act, or performing any function or exercising any power under the Act, regard must be had to the need to ensure the financial sustainability of the scheme: s 3(3)(b), s 4(17).
Reasonable and necessary supports
A person who meets the access criteria in section 21 of the Act becomes a participant in the NDIS: s 9. When a person becomes a participant, the NDIA must help him or her prepare a plan which comprises a participant’s statement of goals and aspirations and a statement of participant supports: s 33. The statement of participant supports specifies matters including the reasonable and necessary supports that will be funded under the NDIS: s 33(2)
The general principles in s 4 include the principle that reasonable and necessary supports should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
Section 34(1) provides that, for the purpose of specifying in a statement of participant supports the reasonable and necessary supports that will be funded under the NDIS, the Tribunal must be satisfied of all of the following in relation to each:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Minister has made Rules under s 209(3) about a number of matters concerning determinations under the Act. Relevant to these proceedings are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Rules) which deal with the assessment and determination of reasonable and necessary supports that will be funded under the NDIS. The Rules form part of the legislation.
The CEO of the NDIA has made Operational Guidelines to assist staff in making decisions and performing other functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The decision under review
Ms McCutcheon became a participant in the NDIS on 9 January 2014. On 19 April 2014, a plan was approved by which funding was provided for supports including occupational therapy and household assistance. It did not include funding for chiropractic care. Ms McCutcheon asked the NDIA to review that decision.
On 24 July 2014, the NDIA affirmed its decision that the provision of chiropractic treatment was not a reasonable and necessary support within the meaning of the Act. That decision was made under s 100(6) of the Act and is one that the Tribunal has power to review (see s 103).
The issue
The NDIA submits that chiropractic treatment is not a reasonable and necessary support for Ms McCutcheon because it does not meet s 34(1)(d) or s 34(1)(f). The other criteria in s 34(1) are not in dispute and I am satisfied that each is met.
I have to decide whether chiropractic treatment for Ms McCutcheon:
(i)will be, or is likely to be, effective and beneficial for her, having regard to current good practice; and
(ii)is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Information before the Tribunal
The Tribunal heard evidence at a hearing on 11 August 2015 from Ms McCutcheon, her treating chiropractor Dr Belinda Young, her current physiotherapist Ms Emma Zahl, and Dr Elisabeth Sherry, a rehabilitation physician who gave evidence at the request of the NDIA.
Also before the Tribunal are a written statement by Ms McCutcheon, documents provided by the NDIA (the “T-documents”), reports from Dr Young, Ms Zahl and Dr Sherry, a letter from Ms McCutcheon’s general practitioner Dr Carmen Hristea, and a number of reports concerning the effectiveness or otherwise of manipulative therapy in the treatment of spinal and other disorders.
Ms McCutcheon’s evidence
Ms McCutcheon is 38 years old and the single parent of an eight-year-old daughter. Her medical conditions are complex. She was born with closed spina bifida. When she was 13, she underwent an extensive fusion of her lumbar spine from L2-S1 to correct her scoliosis and de-tether her spinal cord. She has left hip Perthes’ disease. She is on nocturnal dialysis following a failed kidney transplant and is on the waiting list for a further transplant. In about 2008, she suffered a heart attack, possibly related to her renal disease, and had a stent inserted.
After studying bookkeeping and administration, Ms McCutcheon worked part-time from 2000 to 2007 as a bookkeeper and receptionist for the Barwon Disability and Resource Council. She was paid for 20 hours a week but says her hours were often longer. She stopped working around the time her daughter was born.
After her daughter started school in 2012, Ms McCutcheon went back to work, managing her church’s opportunity shop. She was paid for 10 hours a week but says she often worked longer hours. She left that position in mid-2013 because of what she describes as “difficult personal circumstances”. She then started cleaning houses for friends and worked for up to six hours a week cleaning two to three houses. She stopped that work in about May 2014 when she could not continue because of her deteriorating physical health. She gave evidence that she has applied for a number of jobs since, and has had a number of interviews, but prospective employers “see only the wheelchair, and not the person”.
Before her daughter was born, Ms McCutcheon used a walking frame, sticks and a wheelchair at different times. She gave evidence that, when she learned she was pregnant, she decided she had to do something to improve her mobility so that she could care for her daughter.
Between 2002 and 2008, Ms McCutcheon’s general practitioner referred her from time to time to the Barwon Community Rehabilitation Centre (BCRC) where she was assessed and reviewed for gait aids, exercise programs, wheelchair assessment, and a multidisciplinary program including occupational therapy, rehabilitation and physical therapy. She was discharged from BCRC in 2008 when she became eligible for State funding for an Individual Support Package (ISP). She received ISP funding until transferring to the NDIS when she became a participant in that scheme.
Progress notes from Barwon Health in July 2006 show that Ms McCutcheon had been seeing a chiropractor regularly to assist with neck and back pain and headaches, and realignment of her upper spine. A note in November 2007 shows she was advised to see her chiropractor “for ongoing back”.
From approximately 2006, Ms McCutcheon received chiropractic treatment, initially from Dr Robin Wallace and, from 2011, from Dr Belinda Young at the same practice. Records show that Dr Wallace initially saw Ms McCutcheon approximately every three weeks, after which she saw her fortnightly for a time and then approximately three weekly. From 2008, when Ms McCutcheon transferred to the ISP, her funding included a component for chiropractic treatment approximately every four to six weeks.
Ms McCutcheon gave evidence that, with chiropractic treatment, she needed the frame less and less after the birth of her daughter and, by the time her daughter was about one year old, she was no longer using it. She continued with a combination of chiropractic treatment, sports massage therapy and physiotherapy.
When Ms McCutcheon transferred to the NDIS, funding was approved for three sessions of chiropractic treatment to assist with the transition from the ISP to the NDIS after which, the NDIA determined, she would be responsible for funding any further chiropractic treatment.
The evidence about the frequency of Ms McCutcheon’s chiropractic treatment after she became a participant in the NDIS is not altogether clear. She gave evidence that, from around April 2014 when the NDIA decided not to fund the treatment, she saw Dr Young intermittently, every two to three months when she could afford it, until early 2015 when chiropractic treatment ceased altogether.
There is no suggestion that Ms McCutcheon was not truthful in her evidence but Dr Young’s records show a greater frequency of treatment in 2014. After a gap of approximately seven to eight weeks up to July 2014, she had three treatments in July, then one at the end of August, September and October, followed by a gap of approximately nine weeks until December after which she had three or four treatments before they ceased altogether. I am satisfied that Dr Young’s records are correct and that Ms McCutcheon is mistaken in her recollection.
Since around the time the NDIA declined to fund chiropractic treatment, Ms McCutcheon says, her mobility has decreased markedly and, since early 2015, when she ceased treatment altogether, she has become increasingly reliant on her wheelchair and now uses it all day except for an average of two periods of half an hour each day. She gave evidence she had to stop housecleaning work and can no longer do things such as walk her daughter into school like other parents; the activities she can do with her daughter have decreased, putting a strain on their relationship; her social life is limited because her friends’ houses are not wheelchair-accessible; and she is unable to continue with her studies.
Ms McCutcheon has nearly completed a diploma in early childhood studies and hopes to work in a kindergarten and become financially independent. To complete her studies, she has to undertake two placements including one in a child-care centre. She cannot undertake the placement while she is in a wheelchair and has put her study on hold. She says she is concerned that she will have to abandon it altogether.
Following discussions with the NDIA in the course of these proceedings, it was agreed that funding would be provided for Ms McCutcheon to receive eight hours of physiotherapy. Ms McCutcheon has been seeing Ms Zahl since July 2015 under this arrangement. I understand Ms McCutcheon and the NDIA have different understandings of the nature and extent of physiotherapy support agreed to, but that is not a matter I am required to determine. The therapy Ms Zahl is providing is described below. Ms McCutcheon also sees a remedial massage therapist, as needed, for specific purposes such as after she injured herself in a fall.
Ms McCutcheon gave evidence that she finds chiropractic treatment more beneficial than other forms of treatment, although she finds physiotherapy helpful, especially at present. Because of her renal failure, she has limited tolerance for pain medication. She acknowledges that even chiropractic treatment has its limitations but says it helps relieve her back pain and hip pain, as well as the pain in her left elbow and shoulder which comes from being in an awkward position during overnight dialysis. She says that, immediately following each treatment, she would be in pain for a couple of days after which the pain improved for a couple of weeks before she would “gradually tighten up” again to the point where she needed a further treatment; she found a monthly adjustment sufficient to “unlock” her and enable her to do things such as walk with her daughter into school and do her housework. She believes she would not have been able to continue cleaning work for as long as she did without it.
Ms McCutcheon’s claim that her functioning, in particular her mobility, has decreased markedly since around mid-2014 is not disputed by the NDIA, Dr Sherry, Dr Young or Ms Zahl.
Will chiropractic treatment be, or is it likely to be, effective and beneficial for the participant, having regard to current good practice?
The Act does not define “effective” or “beneficial” but they are ordinary words that should be given their ordinary meaning. Relevant to these proceedings, “effective” in The Australian Oxford Dictionary means: having a definite or desired effect; efficient, and “beneficial” means advantageous; having benefits; improving the health.
Dr Sherry gave evidence that “effective” is commonly used to mean a form of treatment that works if given. While “beneficial” is more a lay term and not one she would use clinically, in her view they mean much the same thing. In the context of therapeutic support, I understand “effective and beneficial” to mean treatment that does what it is intended to do and which produces a benefit for the participant.
The Supports for Participants Rules
Part 1 of the Rules describes what they are about by reference to particular objects and principles in the Act. Part 3 deals with assessing proposed supports for the purposes of s 34(1)(c), (d), (e) and (f). In relation to s 34(1)(d), it states:
3.2 In deciding whether the support will be, or is likely to be, effective and
beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers;
(c)anything the Agency has learned through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Rule 3.2 requires the Tribunal to consider the available evidence of the effectiveness of the support for others in like circumstances. I understand this to mean circumstances that are sufficiently similar to enable a meaningful comparison and assessment of the likely effect and benefit of a particular support. In the context of the NDIS, this would ordinarily mean persons with the same or similar disability as the participant.
Rule 3.2 does not limit the kinds of evidence that may be relevant, and nor does it suggest that more weight should be given to any one kind of evidence over another. However, Rule 3.3 does indicate that expert opinion may be particularly relevant.
Dr Young’s evidence
Dr Young has treated Ms McCutcheon since taking over from Dr Wallace in 2011. She provided written reports dated 11 July 2014 and 11 March 2015 in which she stated that in the previous couple of years, Ms McCutcheon’s main complaints had been of left-sided lower back and pelvic pain, mid to lower thoracic pain, neck pain, headaches, shoulder and elbow pain.
Dr Young gave evidence that Dr Wallace’s notes referred to Ms McCutcheon being in a wheelchair when she first saw her in 2006. Dr Young could not identify from the notes when Ms McCutcheon was able to walk without assistance following treatment but, from memory, she thought it was after the birth of her daughter. She recalled that, from about 2008, Ms McCutcheon walked most of the time without sticks, a frame or a wheelchair.
Giving evidence, Dr Young estimated she had seen Ms McCutcheon approximately 50 times since 2011, on average about every four weeks until 2014; she last saw her in March 2015. Dr Young acknowledged that patients can become dependent on any treatment but said her practice discourages dependence, and people who return for treatment do so because they know it will help. She agreed that its main function for Ms McCutcheon was pain relief. She agreed that functional gains are not always achieved with chiropractic but said flexibility and movement can usually be maintained. She said Ms McCutcheon would often “waddle from side to side”, she could not straighten up, and she “wobbled” when she arrived for treatment but, with adjustment, she improved.
Dr Young attributes Ms McCutcheon’s increasing reliance on aids and, in recent months a wheelchair, on the significant gaps in her treatment since mid-2014 when compared with the previous regular treatment. After each gap, she said, it took several visits in order for Ms McCutcheon to become more mobile again. After a gap of about seven weeks around July 2014, it took four visits to get her mobile again; after a gap of nine weeks around October to December 2014, it took five visits. After the current gap of some six months, she would expect it would take six to eight visits to achieve an improvement in her mobility, with monthly visits for a period of six to eight months after that.
Ms Zahl’s evidence
Ms Zahl has seen Ms McCutcheon on five or six occasions since early July 2015. She provided the NDIA with reports on 14 July 2015 and 7 August 2015.
In her first report, Ms Zahl stated that, after her initial assessment, her main focus over the next month would be to improve Ms McCutcheon’s strength and range around the left hip and improve her thoracic mobility, reducing strain through her lumbar and cervical spine. She said she had set an exercise program for Ms McCutcheon to perform at home but she would also need to perform “hands-on therapy” to help her “relearn postural movement skills and correct functional movement patterns”.
In her second report, Ms Zahl stated that Ms McCutcheon had begun her home program “aimed at improving her pelvic control, increase her thoracic and cervical range of motion, strengthen her core and thus allow her more time out of the wheelchair”. She noted that Ms McCutcheon’s gait had slightly improved since she first saw her, and she had improved left hip internal rotation. However, because her functional capacity had “significantly reduced” in the previous 12 months, it would take more time to reach her functional goals. She reported that “[f]urther functional outcomes are to be expected with the initial priority being to improve strength and reduce her pain, progressively allowing her more time out of the wheelchair”; this would need to be done “in a graduated fashion”. She recommended twice weekly sessions for four weeks followed by weekly sessions for eight weeks, then fortnightly reviews for a further 12 weeks, with monthly reviews after that “until functional outcomes are reached and self managing home program”. She noted that Ms McCutcheon had previously received chiropractic and remedial massage on a monthly basis and said that “[d]ue to her numerous physical issues” the remedial massage in particular “would help alleviate muscle imbalances and aid her rehabilitation”.
Ms Zahl gave evidence that, when she first saw Ms McCutcheon, she was in a wheelchair, she could not push herself to stand up, she was very weak through her pelvis and hip, and she had poor pelvic control. Ms Zahl said she was unable to assess how long she had been like that but she had no reason to doubt Ms McCutcheon’s account of deterioration over the previous 12 to 18 months.
Given Ms McCutcheon’s range of disabilities, Ms Zahl said, the likely outcome if she relied on a home-based exercise program alone is that she would deteriorate further. In her view, an exercise program can “only go so far” and, while “absolutely critical”, it would not itself get Ms McCutcheon’s joints moving. Without treatment, she said she would expect Ms McCutcheon to re-present with even more symptoms than when she first saw her. With the program outlined in her report of 7 August 2015, she would expect Ms McCutcheon would spend a lot more time out of the wheelchair, she would have better strength and endurance, she could walk further and perform more activities of daily living and around the house.
Asked for her opinion on chiropractic treatment for Ms McCutcheon, Ms Zahl said it was difficult to say because she did not know exactly what treatment Dr Young had given. However, from what Ms McCutcheon told her, it had certainly been beneficial. She agreed with Dr Sherry’s suggestion (see below) that a collaborative approach could be beneficial because “there are things chiropractors can do that physiotherapists cannot”. She said she did not think the five chiropractic treatments each year for which Ms McCutcheon was entitled to a Medicare rebate under the Chronic Disease Management – Individual Allied Health Services under Medicare program would be sufficient although it was “better than nothing”. She proposes a six-month program of collaborative treatment followed by monthly reviews for probably three to four months.
Ms Zahl gave evidence that she would expect that, with treatment, Ms McCutcheon’s function would improve so that she could undertake activities such as standing at a bench cutting vegetables and brushing her teeth. She says her improved functioning “absolutely would help” her towards re-employment.
Dr Sherry’s evidence
Dr Sherry is a rehabilitation physician who has worked extensively in clinical and advisory roles in chronic pain and neurological rehabilitation including managing patients who have suffered strokes, brain and spinal cord injuries. She was asked by the NDIA to provide her view on “the effectiveness of chiropractic treatment for individuals with spina bifida and scoliosis, having regard to available research and literature”.
Although the letter of instruction to Dr Sherry did not specify Ms McCutcheon’s disabilities, it is clear from her written reports dated 20 July 2015 and 22 July 2015 that Dr Sherry was made aware, in broad terms, of Ms McCutcheon’s medical conditions and their effects. She gave evidence that, beyond that, she had no instructions about the details of Ms McCutcheon’s conditions or her medical history and treatment.
Dr Sherry gave evidence that her usual practice when ascertaining the effectiveness of a particular treatment is to look first at any guidelines for the particular condition. Guidelines are “sets of non-mandatory rules, principles or recommendations for procedures or practices in a particular field” the best of which she said are written by the National Health and Medical Research Council. If there are no guidelines, or they are of low quality or outdated, she searches for systematic reviews or meta-analyses, such as those in the Cochrane Library. If such reviews are not available or are outdated, she searches for randomised controlled trials published since the last systematic review.
Giving evidence, Dr Sherry said that, although she has extensive experience searching literature in order to make recommendations regarding treatments, she is not a qualified researcher and did not undertake a comprehensive, systematic review, a process usually undertaken by an academic service over several months. That said, she is experienced in conducting reviews for the purposes of agencies such as the Transport Accident Commission and Worksafe Victoria, and said will often find “almost everything” that a university literature review will find. However, she said, she could not be confident she had not missed relevant studies in her present search.
In her first report, Dr Sherry outlined her conclusions following her review of literature on spinal manipulative therapy, mobilisation and manual therapy for chronic spinal pain, chronic non-specific low back pain and “failed back surgery syndrome”. In the second, she considered the effectiveness of chiropractic treatment for shoulder and hip pain. She did not consider any literature concerning spinal manipulation therapy and spina bifida, and she did not include neck pain or elbow pain in her review. I understand the terms spinal manipulative therapy, mobilisation, manual therapy and chiropractic treatment are used here more or less interchangeably.
Concerning treatment for spinal conditions, Dr Sherry identified two reviews undertaken by The Cochrane Collaboration, an independent, not-for-profit body that undertakes systematic reviews and summaries of literature on treatments for various conditions. She also identified seven reports of random controlled trials undertaken since 2009, three of which were small pilot studies. In relation to shoulder and hip pain, she found a recent guideline from the University of New South Wales and one Cochrane review.
The first Cochrane review looked at a particular technique for “non-specific low back pain including chronic pain”. It found “low quality evidence” that the technique was not effective. The second Cochrane review, by Rubinstein et al, Spinal manipulative therapy for chronic low-back pain (2011), identified 26 randomised controlled trials in which treatment was delivered by a range of practitioners including chiropractors.
Dr Sherry gave evidence that the authors of the Rubinstein review were not supportive of spinal manipulative therapy for chronic lower back pain; they found “high quality evidence that [spinal manipulative therapy] has a small, statistically significant but not clinically relevant short-term effect on pain relief and functional status compared to other interventions”.
While some of the randomised control tests Dr Sherry looked at found some longer term improvement in pain and disability, she said they should be approached with caution for various reasons; others supported Rubinstein. None caused her to doubt Rubinstein’s conclusion and the “strong” evidence that “[spinal manipulative therapy] is no better than placebo” in chronic, non-specific lower back pain. She was not persuaded by the positive results found by Bronfort et al (Supervised exercise, spinal manipulation, and home exercise for chronic low back pain: a randomized clinical trial (2011)) on the ground that Bronfort is a chiropractor and potentially “biased towards spinal manipulative therapy”.
Ms McCutcheon’s representative took issue with Dr Sherry’s reading of Rubinstein as concluding that spinal manipulation therapy is no better than placebo for chronic, non-specific lower back pain. In particular, she referred to the authors’ conclusions that “high-quality evidence suggests that there is no clinically relevant difference between [spinal manipulative therapy] and other interventions for reducing pain and improving function in patients with chronic low back pain”, and the decision to refer for spinal manipulative therapy “should be based on costs, preferences of the patient and providers and relative safety of the treatment options”.
Dr Sherry does not agree with Bronfort et al’s conclusion that there is “no clinically relevant difference” between spinal manipulative therapy and other interventions but she does not dispute their statement about how decisions to refer for spinal manipulative therapy should be made.
It is difficult for the Tribunal to assess the weight that should be given to different studies without expert evidence explaining various research methods, the meaning of various scores and what is statistically significant as opposed to clinically significant. Dr Sherry gave some evidence about each but it is relevant that she readily acknowledged the limitations of the literature review she was able to undertake in the time available to her. She agreed that it concerned chiropractic treatment “at large” rather than adults with spina bifida, although she said there is not much literature on adult spina bifida. She acknowledged that she had limited information about the specific effects of Ms McCutcheon’s spina bifida and scoliosis, including whether she has any neurological impairment, and limited information about the specific treatment she is receiving.
Moreover, Dr Sherry said, she found no evidence regarding spinal manipulation therapy or similar interventions in “failed back surgery syndrome”, meaning that no guidance could be found in the literature on this question, and it may or may not be effective. Importantly in this case, she said “failed back surgery syndrome” following spinal fusion more closely describes Ms McCutcheon’s condition than “chronic lower back pain”. Finally, she said, it is very hard to say what treatment a patient does or does not need based on literature because an individual approach is always required.
Dr Sherry gave evidence that, if a patient sees a chiropractor and three weeks later is in “exactly the same place” and needs to be treated again, that demonstrates only a short term benefit. Where that pattern continues over a period of years, she said there is no evidence of a long-term benefit. She agreed that Ms McCutcheon was apparently being maintained by the chiropractic treatments but questioned whether other interventions might not achieve the same outcome. I do not understand her evidence to be that it is necessarily less effective.
Dr Sherry said it is “definitely true” that people get an immediate analgesic benefit from massage or spinal manipulative therapy. She said this pain relief has a strong psychological impact which can lead to dependence, even in the face of a lack of evidence of long-term benefit or gain in function. She said it is important to address this psychological impact “with sensitivity” or the outcome may be heightened pain and disability. She does not believe, after some nine years of chiropractic treatment, that it is effecting any change or improvement in Ms McCutcheon’s condition but she acknowledged its role in maintaining her functioning.
Asked to comment on whether any benefit from chiropractic intervention was likely to have sustained effect on Ms McCutcheon’s ability to function, and particularly her ability to mobilise, Dr Sherry said it is important to consider the context of pain management. She said:
… it’s important to think about the context of pain management and if a patient has a strong belief that treatment is going to help, then that treatment will help, and I think that [Ms McCutcheon] getting out of the wheelchair is definitely related to her belief in her pain management. That’s why I think the way to address this is not to stop that particular treatment. It is to work with the treater because I think that change can only come from that treater because the patient truly believes that that treater is the only thing that is keeping her out of a wheelchair. But it may not be the case but there’s only one way really to manage that and that’s with the engagement of the treater because that’s where the patient’s trust and belief lies.
In Dr Sherry’s view, the best treatment for Ms McCutcheon will be determined by her treater as the person she has “great faith” in and who has worked with her. I do not understand her to suggest that Ms McCutcheon’s confidence in chiropractic treatment is misplaced, rather that there may be equally or more effective treatments and any change should be done in consultation with her chiropractor.
Given what she considers to be a lack of evidence of the benefits of spinal manipulative therapy for lower back pain, Dr Sherry recommends “a collaborative approach with the chiropractor to gradually wean [Ms McCutcheon] from the treatment, while introducing other self-management strategies to prevent disability”. She says “permanent weaning may be difficult and a long-term maintenance program (eg. monthly) may be a reasonable compromise”.
Dr Hristea
Dr Carmen Hristea, who is Ms McCutcheon’s current general practitioner, provided a letter dated 3 June 2015 in which she stated that Ms McCutcheon had been managing “reasonably well” while having regular physiotherapy and chiropractic treatments “which were stopped under the new arrangements with NDIA in March 2014”.
Dr Hristea wrote that Ms McCutcheon has been “gradually deteriorating in terms of mobility”; she has needed to use a wheelchair, and become more reliant on it, since January 2015. She said the only funded therapies she was receiving at present are the five sessions each year available under the Chronic Disease Management – Individual Allied Health Services under Medicare program. Dr Hristea states she has no doubt that this will have a “significant impact” on Ms McCutcheon’s health.
Dr Hristea’s letter is of limited assistance because she appears not to realise the extent of treatment Ms McCutcheon has had from time to time since the NDIA decision.
Other reports
The NDIA has provided the Tribunal with a bundle of 18 reports and articles concerning various forms of treatment for chronic and acute back pain. They were compiled after discussion at a case conference in these proceedings. Other than the Rubinstein review referred to above, the NDIA does not seek to rely on these documents. They date from 1992 and, other than the Rubinstein reviews concerning acute and chronic low back pain, the most recent is dated 2005. They are of interest mainly because they indicate that, while there is continuing debate about the effectiveness of chiropractic treatment for particular conditions, it is a well-established form of alternative medicine.
Several articles were submitted to the Tribunal on behalf of Ms McCutcheon. It is not necessary to go into them in detail but a couple deserve mention. A report by Hidalgo et al, The efficacy of manual therapy and exercise for different stages of non-specific low back pain: an update of systematic reviews (2014), based on “low-risk of bias studies”, concluded “a variety of manual procedures combined or not with other interventions, including exercise, may improve patient management”, lending support to the collaborative approach recommended by Dr Sherry and Ms Zahl. A report by Bronfort et al, High-quality evidence that spinal manipulative therapy for chronic low back pain has a small, short term greater effect on pain and functional status compared with other interventions (2012) concluded that spinal manipulative therapy “is as effective as other commonly used therapies like exercise, standard medical care and physical therapy for the management of chronic low back pain”.
Like the reviews considered by Dr Sherry, the Hidalgo and Bronfort studies are of limited assistance because they concern low back pain generally. However, it is relevant that they indicated more favourable outcomes than most of those in Dr Sherry’s review.
An article, Optimising Health Care for Adults with Spina Bifida, Thomas S Webb (2010), outlines the secondary complications that adults with spina bifida are at risk of developing, including musculoskeletal issues and loss of mobility. It concludes that more research in adults is needed to better understand late onset secondary conditions and the longitudinal effects of childhood procedures (such as spinal fusion). It is of little assistance other than to say that further research is needed.
A report of a study by Northcott Disability Services in May 2015, Spina Bifida Adult Resource Team (SBART) Service Evaluation, concerns provision of services to adults with spina bifida. It does not assist in these proceedings.
“current good practice”
As I understand it, the NDIA’s submission is that there is insufficient objective, independent evidence to support the conclusion that chiropractic treatment amounts to current good practice, whether in Ms McCutcheon’s case or any other, meaning that it cannot be considered a reasonable and necessary support under the NDIS.
“Current good practice” is not defined in the Act or Rules, and the Operational Guidelines are silent. As a starting point, it will depend on the particular condition and an individual’s circumstances. It will be a matter for evidence as to such things as the extent to which a treatment or therapy is recognised as effective and beneficial, and is practised, by health professionals. Rule 3.3 indicates that expert opinion may be necessary but does not suggest that only expert evidence will be sufficient for this purpose.
In TKCW and National Disability Insurance Agency [2014] AATA 501, the Tribunal considered whether a form of listening therapy proposed for a child with autism amounted to “current good practice”. The therapy in question was relatively new, largely untested, there was a lack of formal research about its benefits and there was limited evidence of its use by practitioners. The Tribunal concluded there was insufficient information for it to say with any confidence that it was, or would likely be, effective and beneficial for the child or that it was “current good practice” in the treatment of autism. (It was also relevant to its likely effectiveness and benefits that the child had not actually used the therapy).
The Tribunal in TKCW took “current good practice” in s 34(1)(d) to mean a practice which, even if not widely used, is recognised by sufficient numbers of practitioners as being based on sound evidence. Depending on the circumstances, anecdotal evidence from a sufficient number of qualified therapists of positive outcomes in sufficient numbers of children might be sufficient to say that it represented “current good practice”.
I cannot find in the legislation or the evidence in this case a basis for concluding that chiropractic treatment cannot amount to current good practice for the purposes of s 34(1)(d). There is ample evidence that it is widely used for a range of conditions. Whether it represents current good practice for a particular condition is another matter. The studies show that it is a recognised and effective form of treatment for a range of conditions. For example, Dr Sherry found “high-level evidence” to support its use in early shoulder pain and a consensus among experts favouring its use in early hip osteoarthritis (although none concerning treatment after three months meaning it may or may not be effective in chronic conditions). It is also worth noting that Dr Sherry referred to the use by the Transport Accidents Commission and Worksafe Victoria of “really high quality physiotherapists, chiropractors and osteopaths” to discuss all treatment options with treaters.
As I understand their evidence, Dr Sherry, Dr Young and Ms Zahl agree that, given Ms McCutcheon’s range of disabilities, long-term change cannot be expected from any treatment or therapy. However, all agree that chiropractic treatment has a role to play in maintaining a level of functioning. Dr Sherry questions whether other treatment options might not be just as, or more, effective but she said a “collaborative approach” with the chiropractor is important. Her expert opinion is that treatment should not be stopped, rather that Ms McCutcheon should be “weaned off” (an expression Dr Sherry said she did not really like) chiropractic treatment over some months. I understand Dr Sherry bases this recommendation of what she considers a lack of evidence of long-term benefits of chiropractic treatment for lower back pain but she also considers a long-term maintenance program “may be a reasonable compromise”.
On the information before me, I am satisfied that chiropractic treatment can amount to current good practice for the purposes of s 34(1)(d). Taking into account that Dr Young, Ms Zahl and Dr Sherry agree that it serves a purpose in maintaining Ms McCutcheon’s functioning, I am satisfied that a collaborative approach which includes chiropractic treatment as proposed by Dr Sherry and supported by Ms Zahl reflects current good practice in her case. How long it remains effective and beneficial, and whether other forms of treatment or therapy are more so, will have to be determined in time.
Consideration
The NDIA submits that the quality of the available evidence is insufficient for the Tribunal to be satisfied, on the balance of probabilities, of the likely effectiveness and benefits of chiropractic treatment for Ms McCutcheon. It is submitted that, at best, it will assist in maintaining a level of functioning, and there is no evidence that it will achieve any medium or long term change or improvement in her condition. Moreover, it is submitted, her mobility declined even with continuing chiropractic treatment until early 2015.
Dr Sherry readily acknowledged the limitations of the research she was able to do in the short time available to her and the limited role that literature can play in determining the most effective treatment in an individual case. In particular, she acknowledged the limited clinical history she had and the limited relevance of the studies to Ms McCutcheon’s particular conditions. Against that are a number of studies suggesting positive outcomes which also suffer from limited relevance to Ms McCutcheon’s particular conditions. In these circumstances, Ms McCutcheon’s lived experience is especially relevant.
The NDIA submits that Ms McCutcheon’s evidence of her “lived experience” is of limited probative value because s 34(1)(d) necessarily requires a degree of objectivity that is lacking in her evidence and that of Dr Young.
I do not think this argument can be sustained. Ms McCutcheon’s “lived experience”, which I understand to mean her first-hand knowledge, experience and understanding of her conditions and various treatments, will inevitably be subjective. How much weight “lived experience” should be given will depend on all of the available evidence. Where it is consistent with reliable, relevant, independent evidence, it will likely be given a good deal of weight. Where it is at odds with other evidence, it may be given less weight. Where reliable, relevant, independent evidence is lacking, evidence of “lived experience” may be particularly important.
Dr Sherry had no argument with the role of chiropractic treatment in maintaining Ms McCutcheon’s functioning. She questioned how much this was attributable to the psychological effect of Ms McCutcheon’s “faith” in the treatment but she did not question the role of that strong belief in achieving a benefit.
It is not suggested that Ms McCutcheon was not open and truthful. I have no reason to doubt her evidence or that of Dr Young that, from around 2007, she was able, with chiropractic treatment in combination with other treatments, to improve her mobility and manage for the most part without walking aids or a wheelchair. The evidence is that, from around April 2014 when her treatment became less regular, she experienced increasing problems with her mobility. From around the time she ceased chiropractic treatment altogether, she has become heavily dependent on a wheelchair and her ability to function in caring for her daughter, managing household tasks, and in social and work activities, is now seriously reduced.
The argument that Ms McCutcheon’s mobility continued to decline even while she was having chiropractic treatment has some force. However, I accept Dr Young’s evidence that the gaps in treatment from around April 2014, before it ceased in early 2015, have led to reduced mobility and required intensive sessions to get Ms McCutcheon back to where she was before the gap. Until recently, Dr Young has treated her regularly over approximately four years and I am satisfied she is well-placed to assess the effects and benefits of treatment.
In all the circumstances, Ms McCutcheon’s lived experience must be given very considerable weight. I am satisfied that there is sufficient independent evidence before the Tribunal to support the conclusion that, insofar as it maintains her mobility and functioning, chiropractic treatment will, or will likely be, effective and beneficial for Ms McCutcheon.
Taking all of the evidence into account, I am satisfied that continued chiropractic treatment for a period will be, or will likely be, effective and beneficial having regard to current good practice, and is a reasonable and necessary support for Ms McCutcheon.
Is chiropractic treatment most appropriately funded or provided through the NDIS?
The NDIS was based on the 2011 report of the Productivity Commission, Disability Care and Support, Report No 54, 31 July 2011 in which the Commission said it was:
generally accepted that disability services should not replace mainstream or other specialist services available to the broader population, or be expected to meet all the needs of people with disability. Indeed, a key policy goal is to move away from primary reliance on specialist disability services to the use of mainstream services or at least a mix of the two.
Further, the Commission said:
Access to generic services, such as health and housing, can affect demand for NDIS-funded services, and vice-versa. It will be important for the [NDIS] not to respond to problems or shortfalls in mainstream services by providing its own substitute services. To do so would weaken the incentives by government to properly fund mainstream services for people with a disability, shifting the cost to another part of government (such as from a state government to the NDIS, or from one budget ’silo’ to another). This ‘pass the parcel’ approach would undermine the sustainability of the scheme and the capacity of people with a disability to access mainstream services.
These policy considerations are reflected in the Act, the Rules and relevant Operational Guideline.
The Rules
Schedule 1 to the Rules sets out considerations that must be taken into account when deciding whether a support is most appropriately funded through the NDIS and is not more appropriately funded through other general service systems such as the health, education, employment and housing systems. Clause 7.3 states that “[f]or the avoidance of doubt”, Schedule 1 “does not purport to impose any obligations on another service system to fund or provide particular supports”.
In relation to health (excluding mental health) Schedule 1 states:
7.4The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment.
7.5The NDIS will not be responsible for:
(a)the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or
(b)other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or
(c) funding time-limited, goal-oriented services and therapies:
(i)where the predominant purpose is treatment directly related to the person’s health status; or
(ii)provided after a recent medical or surgical event, with the aim of improving the person’s functional status, including rehabilitation or post-acute care; or
(d)palliative care.
Operational Guideline
Further guidance is found in the Operational Guideline - Planning and Assessment - Supports in the Plan - Interface with Health which describes those health related supports that it is generally more appropriate for the NDIS to fund; those that, depending on their purpose, can be more appropriately funded by either the NDIS or other parties; and those that are generally more appropriately funded by other parties.
“Other parties” includes government departments and agencies, independent organisations funded by governments to provide services, and individuals and families: cl.13.
The relevant part of the Guideline states:
2.Therapeutic support, including assistance by allied health professions such as speech and language pathology, physiotherapy, occupational therapy, audiology and therapy delivered by a therapy assistant under the supervision of the therapist:
a.NDIS:
i.Maintenance care where the primary purpose is to provide ongoing support for a participant in order to maintain a level of functioning including long term therapy/support required to achieve small incremental gains or to prevent functional decline,
iito improve functioning in an early intervention context
b. Other parties: where it is a time limited intervention to improve functioning following an acute event, medical treatment or accident (e.g. to improve functioning immediately following a stroke or acquired brain injury)
The Guideline as to what is more appropriately funded through the NDIS reflects the language of Rule 7.4 above.
The NDIA submits that there is insufficient evidence for the Tribunal to be satisfied that chiropractic treatment is directly related to Ms McCutcheon’s ongoing functional impairment. Further, that there is insufficient evidence for it to be satisfied that chiropractic treatment enables Ms McCutcheon to undertake activities of daily living, or whether chiropractic treatment is integrally linked to the care and support she needs to live in the community and participate in education and employment. I do not agree. I am satisfied there is sufficient evidence of both.
I am satisfied that chiropractic treatment is directly related to Ms McCutcheon’s ongoing functional impairment and, in combination with other treatment or therapies, can improve her mobility and her level of functioning. I am satisfied on the evidence that, while chiropractic treatment cannot improve Ms McCutcheon’s condition in the sense of bringing about any long-term change in her condition itself, it can maintain her functioning and allow her a degree of mobility that will enable her to undertake activities of daily living such as housework and caring for her daughter. Further, that it is integrally linked to her ability to live in the community, have a social life and, it is to be hoped, participate in education by continuing her studies, and in employment.
Dr Young gave evidence that the housecleaning Ms McCutcheon was doing was “definitely” aggravating her shoulder condition because it involved working with her arms above her head. The NDIA submits that this raises the question whether treatment for her shoulder condition arises not as a result of her ongoing functional impairment but as a result of her employment. That may be but it does not exclude it arising also as a result of her ongoing functional impairment. The evidence is that her shoulder problems stem mainly from having to hold her arm out for long periods while undergoing nightly dialysis. She cleaned houses for a relatively short period but she continues to have nightly dialysis. Moreover, her shoulder is only one part of her body being treated. There is no dispute that her chronic thoracic pain is the direct result of the spinal fusion to correct her scoliosis. It is unclear whether, or how much, it is related to her spina bifida.
The NDIA submits that chiropractic treatment should properly be considered clinical treatment for Ms McCutcheon’s chronic pain, rather than the kind of support to which the NDIS is directed. In this regard, the NDIA refers to the Chronic Disease Management – Individual Allied Health Services under Medicare rebate and submits that the fact that support is available through Medicare for the provision of chiropractic treatment indicates that it is more appropriately funded by the health system.
Dealing with the first part of this submission, I accept that, if the treatment were solely for pain relief, it may well be clinical treatment of the kind most appropriately funded under the general health system. That said, it is not easy to draw clear lines around what is “clinical treatment of health conditions” for which the NDIS will not be responsible (Rule 7.5) and supports that meet the description in Rule 7.4 for which the NDIS will be responsible. Nor is it a simple matter to segregate chronic pain from the condition which is causing it.
The Chronic Disease Management – Individual Allied Health Services under Medicare program provides a Medicare rebate for up to five allied health services per patient each calendar year from eligible providers. Eligible Allied Health providers include, relevantly, chiropractors, exercise physiologists, osteopaths and physiotherapists. If the provider accepts the Medicare benefit as full payment for the service, there is no out-of-pocket cost to the patient; otherwise he or she pays the gap. The service must be directly related to the chronic medical condition. Only a general practitioner can decide whether the patient should be referred for these services, and the type and number required.
There is no dispute that Ms McCutcheon is eligible for five chiropractic treatments (or any other allied health service) under the Chronic Disease Management – Individual Allied Health Services under Medicare program. Accepting Ms Zahl’s opinion that five chiropractic treatments each year are insufficient to maintain her mobility is not a reason for the NDIS to provide additional treatments. The policy underlying the legislation is clear: that it is not for the NDIS to respond to shortfalls in mainstream services.
The fact that a Medicare rebate is available for a treatment might suggest that it is more appropriately funded by the health system than the NDIS, but not necessarily. The Operational Guideline states that “assistance” by allied health professions including physiotherapy and occupational therapy, both of which are covered by the Chronic Disease Management – Individual Allied Health Services under Medicare program, is more appropriately funded by the NDIS than other parties if it is maintenance care whose primary purpose is to provide ongoing support in order to maintain a level of functioning including long-term therapy/support to prevent functional decline. It may be that “assistance” connotes something different from “treatment” but, if so, it is not clear why the Guideline refers to “long term therapy/support”.
The NDIA accepts that physiotherapy (for which the Chronic Disease Management rebate is available) may be funded as a reasonable and necessary support but says it may only be funded for a specified number of sessions aimed at assessment and assisting a person establish home-based exercise, rather than treatment. If the first part of that is correct, I cannot see why chiropractic treatment is necessarily excluded from being a reasonable and necessary support. It is not clear from the Rule and the Guideline why funding for physiotherapy is necessarily limited as described but, even if it is, I cannot see a basis for not funding chiropractic for a purpose such as proposed by Dr Sherry.
Subject to the comments below, I am satisfied in all the circumstances, and taking into account the opinions of Dr Sherry, Dr Young and Ms Zahl, that chiropractic treatment for Ms McCutcheon is most appropriately funded by the NDIS and is not more appropriately funded through the general health system.
Conclusion
I am satisfied that chiropractic treatment will be, or will likely be effective and beneficial for Ms McCutcheon having regard to current good practice. I am also satisfied that, within the limits discussed below, it is most appropriately funded by the NDIS and is not more appropriately funded by the general health system. Whether chiropractic treatment is a reasonable and necessary support for any other participant will depend on all the circumstances of the particular case.
I accept Dr Sherry’s recommendation that treatment should not be stopped but rather that a collaborative approach should be taken by Ms McCutcheon’s treating team for a specified time. The objective in the short term will be to introduce other “self-management strategies”. Ms McCutcheon has indicated that she is not averse to that course. Dr Sherry recognises that a long term maintenance program may be “a reasonable compromise”. Whether such a program is needed, and whether it should be funded under the NDIS should be determined as and when Ms McCutcheon’s participant’s plan is reviewed.
Each participant’s plan must include a date by which it will be reviewed and may specify the circumstances in which it will be reviewed: s 48(5). As well, a participant may request a review at any time, and the CEO of the NDIA may conduct a review on his or her initiative at any time: s 48(4) and (5). These provisions reflect that a plan is a “living document” that may change according to a participant’s changing goals and aspirations, and needs for support. It will be important for Ms McCutcheon’s treaters to bear in mind that, if continuing effectiveness and benefits of chiropractic treatment, or any other treatment, cannot be demonstrated, it may no longer satisfy the requirements for funding as a reasonable and necessary support.
The decision under review is set aside and in its place the decision is substituted that chiropractic treatment is a reasonable and necessary support for Ms McCutcheon.
I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey. .............................................
Associate
Dated 24 August 2015
Date(s) of hearing 11 and 14 August 2015 Representative for the Applicant Rosalinda Casamento, Victorian Legal Aid Representative for the Respondent Mr Stephen Fagg, NDIA
8
1
1