MDMH and Secretary, Department of Social Services (Social services second review)

[2015] AATA 715

MDMH and Secretary, Department of Social Services (Social services second review) [2015] AATA 715 (15 September 2015)

Division	GENERAL DIVISION
File Number(s)	2014/4277
Re	MDMH
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	15 September 2015
Place	Perth

The Tribunal affirms the decision under review.

...(Sgd) CR Walsh.....................................................................

Senior Member CR Walsh

CATCHWORDS

SOCIAL SECURITY – disability support pension -  applicant in receipt of DSP for a mental health condition prior to being imprisoned – following his release from prison the applicant lodged a fresh claim for DSP – applicant’s DSP claim rejected – whether applicant’s mental health condition fully treated and stabilised – meaning of “reasonable treatment” – whether “compelling reason” for failure to undertake reasonable treatment – whether applicant’s mental health condition attracted at least 20 points under the Impairment tables as at the relevant period - decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 1158

Social Security (Administration) Act 1999 – s 13 - s 80 – cl 4 of Sch 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension Determination 2011 – s 3 – s 6(1) – s 6(2) – s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – s 11(4)

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48

SECONDARY MATERIALS

Guidelines to the Tables for the Assessment of Work- related Impairment for Disability Support Pension  

REASONS FOR DECISION

Senior Member CR Walsh

15 September 2015

INTRODUCTION

1. MDMH was imprisoned in correctional facilities in Queensland from September 2007 to 10 July 2013.  During his period of imprisonment, MDMH was transferred, on 17 December 2007, from the Arthur Gorrie Correctional Centre to the Maryborough Correctional Centre, where he remained until his release on 10 July 2013.

2. Prior to being imprisoned, MDMH was in receipt of disability support pension (DSP) for a mental health condition.  However, aas a result of his imprisonment, MDMH’s DSP was cancelled in accordance with s 1158 of the Social Security Act 1991 (SSA) and s 80 of the Social Security (Administration) Act 1999 (SSAA).[1]

   [1] Broadly, s 1158 of the SSA provides that DSP is not payable to a person in respect of a day on which the person is in gaol and s 80 of the SSAA provides that the Secretary must make a determination cancelling the payment of DSP to a person where DSP is not payable that person (for example, pursuant to s 1158 of the SSA).

3. Following his release from prison, MDMH relocated from Queensland to Western Australia (where his family lives) and, on 31 July 2013, he lodged a claim for DSP with Centrelink.  In his DSP claim form, MDMH stated his “disabilities, illnesses or injuries” as aphonia (no voice), depression and anxiety.

4. On 22 November 2013, a Centrelink officer rejected MDMH’s claim for DSP (Original Decision).  On about 18 December 2013, MDMH sought review of the Original Decision by a Centrelink Authorised Review Officer (ARO).

5. On 14 March 2014, an ARO affirmed the Original Decision (ARO Decision). In the ARO Decision, the ARO noted that MDMH suffers from adjustment disorder and mild anxiety and depressed mood, with onset being in 2006. In the “Reasons for decision”, attached to the ARO Decision, the ARO stated:

   ·This is a borderline case in terms of FDTS status and what appears to be a fairly impacting condition - however, on balance the condition is more likely than not still not fully diagnosed, treated and stabilised yet due to no current specialist evidence and intervention (i.e. the condition is not yet fully diagnosed, treated and stabilised for the reasons as indicated).

6. On 10 June 2014, MDMH applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO Decision.

7. On 22 July 2014, the SSAT affirmed the ARO Decision (SSAT Decision).  In affirming the ARO Decision, the SSAT stated:

   35.On consideration of the evidence, the Tribunal accepted [MDMH] had seen a psychiatrist and a psychologist on some occasions in the period from 2005 to 2007 (paragraphs 31 to 33).  However, [MDMH] had subsequently been incarcerated, and according to his written submission, had not been under the care of a psychiatrist during the period 2007 to 2013 (paragraph 28d).  On release from prison he had attended Dr Khan who wrote a MR for his application for DSP (paragraph 29).  Dr Khan had subsequently referred [MDMH] for a formal psychiatric evaluation at Inner City Mental Health Services and the referral had been accepted (paragraph 33).

   36.The Tribunal found that [MDMH] had received psychiatric care in the past, but for a substantial period prior to his claim for the DSP he had not been under specialist care.  As a result, his mental health condition was not fully treated and stabilized on the date he lodged his claim.  It was likely that re-engagement with specialist psychiatrist services, review of his medication and directed psychotherapy could result in functional improvement within the next two years. [Emphasis added]

8. On 19 August 2014, MDMH applied to the Administrative Appeals Tribunal (Tribunal) for a review of the SSAT Decision. MDMH’s stated “Reasons for Application” are as follows:

   1I think decision is wrong and my disability pension should have been resumed at least from July 10 2013

   2Errors of fact

   3Failure to consider all relevant evidence / facts

   4Flawed processed / lack of compassion

ISSUES

1. The relevant issues for consideration by the Tribunal are:

   (i)whether, as at 31 July 2013, or in the 13 weeks thereafter (i.e. 30 October 2013), MDMH had a physical, intellectual or psychiatric impairment:  s 94(1)(a) of the SSA.

   (ii)if so, whether the impairment attracted at least 20 points on the Impairment Tables: s 94(1 )(b) of the SSA; and

   (iii)if so, whether MDMH has a “continuing inability to work”: s 94(1)(c) of the SSA.

MEDICAL EVIDENCE

Job Capacity Assessment

1. On 21 August 2013, MDMH attended a Centrelink Job Capacity Assessment (JCA) with a Registered Psychologist (JCA Assessor).

2. The JCA Assessor found that:

   ·     MDMH suffers from an adjustment disorder with mild anxiety and depressed mood, onset 2006;

   ·     Past treatment included psychological counselling with psychologist Ms Samantha Aldridge in 2007 who advised that MDMH consulted with a psychiatrist at the time;

   ·     MDMH’s medications included endep 50mg, diazepam 2mg and temaze 10mg;

   ·     Current and future treatment is to continue medication. MDMH has also been referred to Inner City Mental Health Services, Perth for psychiatric treatment;

   ·     MDMH’s symptoms include inability to communicate (hysterical aphonia), panic attacks, anxiety, low mood, all of which affect ability to function, tremors of hands and legs, inability to concentrate;

   ·     MDMH’s condition is permanent as the treating doctors states it will continue to impact for greater than 24 months and prognosis is uncertain;

   ·     The treating doctor report is based on previous medical records from another state and the current GP has only met with MDMH on one occasion and has limited medical information available for assessment;

   ·     The condition is [sic] fully diagnosed because there is evidence of treatment in the past from a psychiatrist;

   ·     The condition is not fully treated and stabilised because MDMH has not had any treatment since 2007; and

   ·     Dr Khan (general practitioner) confirmed to the JCA Assessor that there is very little evidence that sufficient treatment has taken place.

3. The JCA Assessor also found that MDMH’s fully diagnosed, treated and stabilised work capacities are 30+ hours per week as he does not have any permanent, fully diagnosed, treated and stabilised medical conditions.

4. The JCA Assessor recommended delayed referral to “Stream 4” services whilst MDMH completes optimal treatment for his mental health condition.

Ms Conroy report

1. On 24 and 25 November 2014, MDMH was assessed by Ms Heather Conroy, Clinical Psychologist (Registrar).  In her report, dated 26 November 2014[2], Ms Conroy recorded that MDMH:

   ·     Presents with an 8 year history of depression and anxiety symptoms precipitated by a traumatic event, and associated psychological distress;

   ·     Has received psychological and psychiatric treatment in Queensland previously, however has been unable to access that care since his move to Western Australia in July 2013;

   ·     Scores 57 and in the severe category for depressive symptoms on the Beck Depression Inventory;

   ·     Scores in the extremely severe range on Depression, Anxiety and Stress scales;

   ·     Scores 78 on the Post Traumatic Stress Disorder (PTSD) Check List, which is higher than the score of 30 indicative of PTSD in the general and military populations; and

   ·     Is currently taking psychotropic medication as prescribed for anxiety and depressive symptoms and is accessing medical care.

   [2] This report is outside the Relevant Period:  refer to paragraph 24 below.

Dr Khan report

1. On 25 July 2013, Dr Khan completed a Centrelink “Medical Report” in support of MDMH’s DSP claim (dated 31 July 2013)  In her report, Dr Khan stated:

   ·     MDMH had been her patient since 25 July 2013;

   ·     MDMH had adjustment disorder with mild anxiety and depressed mood which has a significant impact on his ability to function;

   ·     The date of onset of MDMH’s condition was 2006;

   ·     The diagnoses of MDMH’s condition is supported by a psychologist and GP;

   ·     MDMH is currently being treated with Endep 50mg, Diazepam 2mg and Temaze 10mg and his history was obtained from previous records;

   ·     MDMH has future / planned treatment to continue medication; and

   ·     MDMH currently has hysterical aphonia, tremors of hands and legs, and an inability to concentrate.

2. Dr Khan described the impact of MDMH’s mental health condition on his "ability to function” as follows:

   Unable to communicate, panic attacks, anxiety, low mood which affect his ability to function.  His brother is his carer.

3. Dr Khan further reported that the impact of MDMH’s condition on his ability to function is expected to persist for more than 24 months and that the continued effect of his condition, within the next 2 years, on MDMH’s ability to function is “uncertain”.

Ms Aldridge report

1. On 15 May 2007, Ms Samantha Aldridge, Psychologist, reported[3] that:

   ·     MDMH suffers from hysterical aphonia, which involves loss of capacity for speech due to a traumatic stress response.  MDMH has had no voice since November 2006;

   ·     MDMH’s condition impacts significantly on his quality of life as it limits social interaction and impairs communication;

   ·     MDMH presents with symptoms of stress, including shortness of breath, agitation, tremulous hands and no speech;

   ·     MDMH’s depression symptoms are severe, and on the Beck Depression Inventory he scores 50, which is at the high end of the severe category; and

   ·     MDMH also consults with a psychiatrist and his general practitioner.

   [3] This report pre-dates MDMH’s period of incarceration.

Dr Seal report

1. In a Centrelink Medical Certificate, dated 19 May 2014[4], Dr Saumitra Seal, general practitioner, diagnosed MDMH with “Depression & anxiety associated with aphonia.”

   [4] This report is outside the Relevant Period:  refer to paragraph 24 below.

2. Dr Seal reported that this condition was “Permanent” and likely to persist for two years or more and that, in her opinion, MDMH:

   is/has been unfit for work/study from 19/05/2014 to indefinitely

3. Dr Seal’s report also noted that MDMH had been her patient, and a patient of her practice, since 1 October 2013.

Dr Ziukelis report

1. In a letter to MDMH’s legal representative, dated 7 July 2015[5], Dr Joseph Ziukelis, Consultant Psychiatrist, states:

   [MDMH] was seen [by me] on 211 occasions between 26.04.2005 and 02.07.2007.  Frequency of attendance was usually weekly at [MDMH’s] insistence…

   The reason for referral and attendance was his emotional decompensation following serious criminal charges for which he was convicted and served a prison sentence.  He was not seen on his release as he returned to Western Australia where his family live.

   Symptoms were those of anxiety and depressed mood as reflected in his reported insomnia, preoccupation and social withdrawal.  Mental state examination also revealed a degree of self-neglect, evidence weight loss and lack of motivation in terms of activity or physical pursuits.

   ……….

   A diagnosis was made of Adjustment Disorder with Mixed Anxiety and Depressed Mood.  Treatment was antidepressant amitriptyline as well as diazepam for anxiety and temazepan for insomnia.

   Some time after committal hearings and before his trial he developed aphonia (loss of speech).  This was ascertained to be psychological in origin as there was no evidence of abnormality of associated organs.

   ……..

   I am unable to comment on his present status, not having examined him since 02.07.2007.

   [5] Although this letter is outside the Relevant Period (see paragraph 24 below), it discusses MDMH’s medical condition prior to his period of incarceration.

Other medical evidence

1. MDMH has also provided a number of historical medical reports, including:

   ·     Prescriptions, dated 25 July 2013, showing that MDMH was prescribed Diazepam 2mg, Endep 50mg and Temaze 10mg;

   ·     Medical Certificates provided by Dr Cargill, general practitioner, dated 10 May 2007 and 22 May 2007, respectively;

   ·     Radiological report of Dr Peter Ross, dated 4 December 2006;

   ·     Pulmonary function test (undated);

   ·     Medical Certificate provided by Dr Olof Boschoff, general practitioner, dated 14 June 2008;

   ·     Medical Certificates provided by Dr Seal, dated 1 October 2013 and 7 October 2013, respectively.

ANALYSIS

Relevant Period

1. The relevant period for determining MDMH’s qualification for DSP under s 94(1) of the SSA (refer to paragraph 25 immediately below) for the purposes of this application for review is 31 July 2013 to 30 October 2013 (Relevant Period): s 13 of the Social Security (Administration) Act 1999 (SSAA) and cl 4 of Sch 2 of the SSAA.

Qualification for DSP – s 94(1) of the SSA

1. Section 94 of the SSA sets out the requirements for qualification for DSP, as follows:

   94       Qualification for disability support pension

   (1)       A person is qualified for disability support pension if:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)       one of the following applies;

   (i)        the person has a continuing inability to work;

   (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

1. Whether MDMH had a physical, intellectual or psychiatric “impairment” for the purposes of s 94(1)(a) of the SSA as at the Relevant Period?

1. The term “impairment” is defined in s 3 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension (Impairment Tables)) Determination 2011 (Impairment Tables Determination) as:

   a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.

2. It is not in dispute that MDMH suffers from an “impairment” arising from his mental health condition and, therefore, satisfies s 94(1)(a) of the SSA.

1. Whether MDMH’s impairment attracts an impairment rating of at least 20 points under the Impairment Tables for the purposes of s 94(1)(b) of the SSA?

1. A person’s level of impairment must be assessed on the basis of what the person can, or could do (i.e. based on functional impact), not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Impairment Tables Determination.

2. The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered: s 6(2) of the Impairment Tables Determination.

3. Importantly, s 6(3) of the Impairment Tables Determination provides that an impairment rating can only be assigned to an impairment if:

   (a)the persons’s condition causing that impairment is permanent; and

   ……..

   (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years. [Emphasis added]

4. Section 6(4) of the Impairment Tables Determination provides that for the purposes of s 6(3)(a) of the Impairment Tables Determination, a condition is “permanent” if::

   (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)       the condition has been fully treated;  and

   ………….

   (c)       the condition has been fully stabilised; and  

   ……….

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

5. The expression “appropriately qualified medical practitioner” is defined in s 3 of the Impairment Tables Determination to mean:

   a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition.

6. In relation to whether an impairment is “fully diagnosed” and “fully treated”, s 6(5) of the Impairment Tables Determination states:

   Fully diagnosed and fully treated

   (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a)       whether there is corroborating evidence of the condition;

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)       whether treatment is continuing or is planned in the next 2 years

7. It is not in dispute that MDMH’s impairment (i.e. his mental health condition) was “fully diagnosed” by an “appropriately qualified medical practitioner” as at the Relevant Period.  What is at issue is whether MDMH’s mental health condition was “fully treated” and “fully stabilised” and, therefore, “permanent” as at the Relevant Period.

8. In relation to whether an impairment is “fully stabilised”, s 6(6) of the Impairment Tables Determination states:

   Fully stabilised

   (6)For the purposes of s 6(4)(c) and s 11 (4) of the Impairment Tables Determination, a condition is fully stabilised if:

   (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)the person has not undertaken reasonable treatment for the condition and:

   (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment. [Emphasis added]

9. Section 6(7) of the Impairment Tables Determination, states that for the purposes of s 6(6), “reasonable treatment” is treatment that:

   (a)        is available at a location reasonably accessible to the person; and

   (b)        is at a reasonable cost; and

   (c) can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)       is regularly undertaken or performed; and

   (e)       has a high success rate; and

   (f)        carries a low risk to the person

10. In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48 the Full Federal Court considered what is meant by the expression “compelling reason” for the purposes of s 6(6)(b)(ii) of the SSA. The Full Court concluded that it is for the decision-maker (here, the Tribunal) to decide whether the reason concerned is “compelling”. The Full Court commented (at [30]):

    We accept the respondent’s submission that a “medical or other compelling reason” for a person not undertaking treatment covers more than a reference to the ‘risks and side-effects’ of the treatment.  There is also much force in the respondent’s submission that, in context, “other compelling reason” may include physical, legal and moral concerns, however it is not necessary for us to consider that issue here. [Emphasis added]

1. What is meant by the expression “compelling reason” (i.e. for not undertaking “reasonable treatment”) for the purposes of s 6(6)(b)(ii) of the Impairment Tables Determination is also considered in the Guidelines to the Tables for the Assessment of Work-related Impairment for DSP (from 1 January 2012) (Guidelines) state (at p14):

   There may be medical or other compelling and acceptable reasons for not proceeding with reasonable treatment, including where the person:

   ·     Has religious or cultural beliefs prohibiting treatment (e.g. blood transfusions);

   ·     Lacks insight or the ability to make appropriate judgments due to their medical condition and are unlikely to comply with treatment (e.g. a person with a severe psychotic illness or dementia).

   In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not to pursue further treatment, it may be reasonable to consider the condition stabilized.  The person’s views (the subjective test) and all information on treatment options, risks etc. (the objective test) must be considered by the assessor in such situations.

   If a person has not had reasonable treatment due to factors that are not of a compelling nature (e.g. lack of personal motivation that is not due to their medical condition), then their condition would not be considered permanent for DSP purposes, as it is not fully treated and stabilised. [Emphasis added][6]

   [6] The Tribunal must apply lawful ministerial policy, unless there are cogent reasons not to.  For example, its application tends to produce an unjust decision in the particular circumstances of the case:  see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.

2. The use of the word “including” in the Guidelines (i.e. in the extract set out above) means that the examples of “compelling reasons” provided in the Guidelines is not intended to be exhaustive.

3. It is clear from the available medical evidence that MDMH was receiving “reasonable treatment” for his mental health condition prior to entering prison in September 2007, including antidepressant and other medication and psychiatric care by an appropriately qualified medical practitioner:  refer to the discussion of Dr Ziukelis’ letter, dated 7 July 2015, in paragraph 22 above.

4. As stated in the “Introduction”, on 17 December 2007, MDMH was transferred from the Arthur Gorrie Correctional Centre (which he entered sometime in early September 2007) to the Maryborough Correctional Centre, where he remained until he was released from prison on 10 July 2013.

5. An admissions form for the Maryborough Correctional Centre, dated 17 December 2007, completed and signed by the “Registered nurse admitting inmate” (but unsigned by MDMH, although MDMH’s name is printed in the section of the form titled “Inmates name”), lists the following medical “services” as being “available” to inmates of the Maryborough Correctional Centre:

   Services available:    Doctors clinics twice weekly

   Refusal to attend without good reason will terminate appointment without re-bookings.

   Dentist clinic fortnightly

   Optometrist on request

   Psychiatrist Video Conference

   Counsellors, Psychologist

   Referral to external agencies, ie: Secure Unit, PA Hospital

   Necessity to transfer to another CC in Brisbane to facilitate some services. [Emphasis added]

6. The form then states that these services can be accessed by “Prisoner Request Forms:  Nurses’ Clinic, Doctors, Dentist etc.”

7. The available documentary evidence shows that on 5 September 2007, prior to being admitted to the Arthur Gorrie Correctional Centre, MDMH was assessed by Ms Linda Cebulski and that Ms Cebulski prepared an “Immediate Risk Needs” in relation to MDMH.  In that report, under the heading “Psychologist/Counsellor”, Ms Cebulski stated:

   Reports currently medicated for Depression/Anxiety and Aphonia.

   The prisoner denies any recent admission to a Mental Health Facility in the past 6 months.

   The prisoner reports feelings of depression due to not receiving his psychiatric medication in stable doses (reports at times they were late or forgotten) and this is not congruent with his presentation……Prisoner is reporting he is feeling better now, as he knows he will be receiving his medication in AGCC.  The prisoner reports that these are not impacting on his current coping ability.

8. There is also documentary evidence showing that at some stage during MDMH’s period of incarceration a “Psychologist Report V4.2.3” was prepared.  However, there is no other documentary evidence showing that MDMH utilised the available medical services (including, in particular, a psychiatrist video conference or a psychologist), referred to in paragraph 42 above, during his imprisonment.  Given that MDMH did not sign this form, it is unclear whether MDMH was aware that those services were available to him.

9. What the available medical evidence does show is a continuity of medication for the duration of MDMH’s imprisonment, including anti-depressants (Amytriptyline 50mg or Endep 50mg).  Based on the documentary evidence and MDMH’s (written) testimony at the hearing (which was read out), it appears that MDMH was not required to physically consult a doctor in order to obtain this medication but, rather, it was given to him as a matter of course by way of some sort of “rolling” script or order.  Various other medications also appear to have been prescribed to MDMH during his period of imprisonment. 

10. On 9 July 2013, the Maryborough Correctional Centre completed a “Discharge Health Report” which records “Aphonia (inability to speak anxiety)” as part of MDMH’s medical history and MDMH’s current medication as being “Endep” 50mg at night.

11. On 1 October 2013, being approximately three months after his release from prison, MDMH actively sought psychiatric care.  That is, he resumed “reasonable treatment” for his mental health condition (i.e. when MDMH became a patient of Dr Seal who referred MDMH to a clinical psychologist, Ms Conroy).  As set above (in paragraph 14), Ms Conroy assessed and treated MDMH for co-morbid anxiety and depression associated with aphonia on 24 November 2014 and 25 November 2014 (some four months following MDMH’s release from prison).  This would seem reasonable, particularly given that MDMH also relocated from Queensland to Western Australia (where his family lives) and transitioned from being a prisoner to a general member of the community during that period.

12. The Secretary’s position is that MDMH’s mental health condition was not “fully treated” and “fully stabilised” (and, therefore, “permanent”) as at the Relevant Period such that it did not attract an impairment rating of at least 20 points under the Impairment Tables and, therefore, MDMH did not satisfy s 94(1)(b) of the SSA as at the Relevant Period. 

13. According to the Secretary:

    18..….there is insufficient evidence regarding the Applicant’s treatment in the lead up to his claim for DSP.  Induction records indicate that there were a range of psychologist, psychiatric and counseling services that may have been made available to the Applicant in prison.  However, he submits that he was only seen sporadically by a government psychiatrist and further psychiatric consultations ceased when he moved between 3 facilities (para 8, Applicant’s submissions dated 24 November 2014).  On is release from prison, the Applicant only accessed treatment from his treating doctor prior to lodging his claim for DSP….

    19.The [Secretary] submits that, based on the evidence available, the Applicant had not undertaken reasonable treatment for his condition.[7]

    [7] “Submissions of the Respondent”, dated 9 July 2015.

14. In contrast, MDMH’s position is that he was physically restricted from accessing “reasonable treatment” (in particular, psychiatric care from a qualified medical practitioner) during his incarceration from September 2007 to July 2013 and that this constitutes a “compelling reason” (for the purposes s 6(6)(b)(ii) of the SSA) for not undertaking “reasonable treatment” in the period prior to his DSP claim (dated 31 July 2013).  It follows, according to MDMH, that his mental health condition can be considered as “fully treated” and “fully stabilised” (and, therefore, “permanent”) as at the Relevant Period for the purposes of s 6(4)(c) of the SSA.  Based on the available evidence, including MDMH’s own (written) testimony as read out at the hearing, I am inclined to agree. 

15. MDMH submitted both prior to and at hearing (i.e. in his written testimony which was read out at) that during his imprisonment he indicated to prison authorities that he required treatment by a psychologist or a psychiatrist (i.e. he asked to see both) but this treatment was not provided to him.  There is nothing in the available documentary evidence provided by MDMH and the Secretary to suggest otherwise.  According to MDMH, but for his incarceration, he would have continued psychiatric care.  MDMH contends that the fact that he did not undertake “reasonable treatment” during his imprisonment was something which was “out of his control”.  This contention finds support in the fact that MDMH actively sought psychiatric care within about three months of his release from prison, during which period he relocated from Queensland to Western Australia (where his family lives).

16. Consequently, the Tribunal finds that MDMH’s mental health condition was fully diagnosed, treated and stabilised and “permanent” as at the Relevant Period.  As such, the next issue for consideration by the Tribunal is whether MDMH’s mental health condition (impairment) attracted at least 20 points under the Impairment Tables as at the Relevant Period.

17. Under Table 5 of the Impairment Tables, a mental health condition can points ranging from zero to 30 depending on whether the “functional impact” of the person’s mental health condition is nil, mild, moderate, severe or extreme.

18. The relevant Impairment Table in MDMH’s case is Table 5 of the Impairment Tables, titled “Mental Health Function”.  The “Introduction to Table 5” states:

    ·There must be corroborating evidence of the person’s impairment.

    ·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

    oA report from the person’s treating doctor;

    oSupporting letters, reports or assessments relating to the persons’ mental health or psychiatric illness;

    oInterviews with the person and those providing care or support to the person.

    ·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.

19. The medical evidence relating to the Relevant Period (and, in particular, Dr Khan’s Centrelink DSP Medical Report, dated 25 July 2013, and the JCA report, dated 23 August 2013:  refer to paragraphs 11-13 and 15-17 above) is insufficient for the purposes of  assigning an impairment rating to MDMH’s mental health condition of at least 20 points (i.e. for “severe” functional impact) under the Impairment Tables.  Under Table 5 of the Impairment Tables if there is “severe” functional impact on mental health function.  This will be the case where the person has severe difficulties with “most” of the following:

    ·     self-care and independent living;

    ·     social/recreational activities and travel;

    ·     interpersonal relationships

    ·     concentration and task completion ;

    ·     behaviour, planning and decision-making; and

    ·     work/training capacity.

20. In his (written) testimony at the hearing (which was read out), MDMH explained that he presently lived with his mother who assisted him with everyday tasks, he rarely ever cooked for himself as he was often not hungry, that he did not drive a car as he has no driver’s licence and he had no social interaction.

21. The Tribunal finds that there is insufficient corroborating evidence before it in relation to the functional impact of MDMH’s mental health condition as at the Relevant Period to conclude that his mental health condition attracted at least 20 points under Table 5 of the Impairment Tables as at the Relevant Period.  That is not to say that MDMH would not qualify for DSP in the future, were he to make a fresh claim with sufficient supporting evidence that his mental health condition has a “severe” functional impact on him in the period relevant to his fresh claim for DSP.

22. Because the Tribunal finds that MDMH’s mental health condition did not attract at least 20 points under Table 5 of the Impairment Tables as at the Relevant Period, MDMH did not satisfy s 94(1)(b) of the SSA as at the Relevant Period.

1. Whether MDMH has a “continuing inability to work” because of his impairment for the purposes of s 94(1)(c) of the SSA.

1. Since the Tribunal finds that MDMH did not satisfy and s 94(1)(b) of the SSA as at the Relevant Period, it is unnecessary for it to consider whether MDMH has a “continuing inability to work” 15 hours per week or more because of his mental health condition for the purposes of s 94(1)(c) of the SSA.

   DECISION

2. For the above reasons, the Tribunal affirms the SSAT Decision.

I certify that the preceding 61 (sixty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

...(Sgd) A Tran.....................................................................

Administrative Assistant

Dated 15 September 2015

Date of hearing	2 September 2015
Representative for the Applicant	Ms A Pidgeon
Solicitors for the Applicant	Legal Aid WA
Representative for the Respondent	Ms M De Reus
Solicitors for the Respondent	Australian Government Solicitor