MZWW and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2022] AATA 2284

MZWW and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2022] AATA 2284 (18 July 2022)

Division:VETERANS’ APPEALS DIVISION

File Number:          2021/1406

Re:MZWW

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date:18 July 2022

Place:Hobart

The decision under review is set aside and the matter is remitted back to the decision-maker with the direction that a further specialist medical opinion be obtained that addresses all of the circumstances relevant to the applicant’s depressive symptoms, including those specifically identified in the Tribunal’s Decision.

.......................[sgd]...............................................
The Hon. Matthew Groom, Senior Member

Catchwords

DEFENCE RELATED CLAIMS – whether the Applicant’s depressive condition is a symptom of his post-traumatic stress disorder – whether the Applicant has major depressive disorder – post-traumatic stress disorder – alcohol use disorder – comorbidity of post-traumatic stress disorder and depression – relevance of Guidelines for Psychiatric Compensation Claims to medicolegal assessment – whether Guidelines are a directive or form part of the legislative scheme.

Legislation

Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988

Veterans’ Entitlements Act 1986

Case Law

Comcare and Levett (1995) 131 ALR 645;
Dalgleish and Comcare (Compensation) [2017] AATA 1325

Den Hartog and Comcare (Compensation) [2017] AATA 1164

Secondary Materials

Department of Veterans’ Affairs, CM7014 MRCC181-Guidelines for Psychiatric Compensation Claims (2019).

Samantha Angelakis and Reginald D.V.Nixon, ‘The Comorbidity of PTSD and MDD: Implications for Clinical Practice and Future Research’ (2015) Behaviour Change 32(1), 1–25.

Valerie A.Stander, Cynthia J.Thomsen, Robyn M.Highfill-McRoy, ‘Etiology of Depression Comorbidity in Combat Related PTSD: A review of the literature’ (2014) Clinical Psychology Review 34, 87–98.

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

18 July 2022

INTRODUCTION

1. This matter involves a review of a decision of the respondent made on 22 February 2021 to affirm an earlier decision declining the applicant’s claim for “depression and quality of life” under section 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the Act).

   BACKGROUND

2. The applicant is 66 years of age. He commenced his service with the Royal Australian Navy as a 15-year-old in October 1971 and served for approximately ten years. During his time in the Navy the applicant served on a number of ships including HMAS Leeuwin and HMAS Sydney. During this time, he was deployed to a number of international locations including  Vietnam in 1972 as well as the Persian Gulf, Southeast Asia and North America.

3. Following his time in the Navy the applicant operated a service station for a number of years, worked as a security guard for approximately seven years and then worked as an insurance company investigator before retiring from full-time work aged approximately 40. Since that time the applicant has performed a number of casual, part-time roles with the Australian Electoral Commission and the Australian Bureau of Statistics.

4. On 24 March 1998 the applicant made a claim for compensation for Post-Traumatic Stress Disorder (PTSD) under the Safety, Rehabilitation and Compensation Act 1998 (the SRC Act). The applicant claimed that his PTSD resulted from the trauma he experienced in connection with a series of sexual assaults that occurred during his service with the Navy in the early 1970s. The applicant’s claim for PTSD was ultimately accepted on 10 May 2017 with a date of effect of 10 February 1997.

5. On 14 October 1998 liability for PTSD was also accepted under the Veterans Entitlements Act 1986 (the VEA Act) with a date of effect of 17 October 1996.

6. On 8 May 2018 the applicant made a further claim for alcohol use disorder under the SRC Act. That claim was also accepted on 23 May 2018 with a date of effect of 1 January 2017.

7. On or about 15 April 2020 a claim was lodged in the applicant’s name seeking compensation for “depression and quality of life” under the SRC Act. It was claimed that the applicant suffered from a depressive condition which was caused by, contributed to, or aggravated by, the applicant’s experience of sexual assault during his naval service.

8. The applicant maintains that he did not personally lodge the claim, although he made clear to the Tribunal that he nonetheless wishes to pursue the claim through to its ultimate conclusion. The Tribunal proceeded with its review on that basis.

9. On 21 October 2020 the respondent rejected the applicant’s claim.

10. The applicant subsequently requested re-consideration of the claim and on 22 February 2021 the respondent affirmed its 21 October 2020 rejection.

11. On 10 March 2021 the applicant applied to the Tribunal for a review of the respondent’s decision of 22 February 2021 and that is the matter presently before this Tribunal.

    ISSUES

12. The issue for determination by the Tribunal is whether the applicant is entitled to compensation under section 14 of the SRC Act as a consequence of incapacity or impairment due to a depressive condition. Given that the circumstances said to give rise to the claimed liability occurred prior to the commencement of the SRC Act, in applying section 124 of the SRC Act the Tribunal must assess potential liability in accordance with the terms of the SRC Act predecessor legislation, the Compensation (Commonwealth Government Employees) Act 1971 (the CGE Act).[1]

    [1] See for example Comcare and Levett (1995) 131 ALR 645; Dalgleish and Comcare (Compensation) [2017] AATA 1325 and Den Hartog and Comcare (Compensation) [2017] AATA 1164.

13. More specifically, the Tribunal will need to determine:

    (a)whether the applicant suffers from a standalone depressive condition;

    (b)whether the condition constitutes a “disease” for the purpose of the CGE Act;

    (c)whether the applicant’s service with the Royal Australian Navy was a contributing factor to the contraction, aggravation, acceleration or recurrence of the disease; and

    (d)whether the disease has resulted in an incapacity for work or impairment.

    CONTENTIONS, EVIDENCE AND CONSIDERATION

14. It was put on behalf of the applicant that:

    (a)the applicant suffered a series of sexual assaults during the applicant’s naval service in the early 1970s when the applicant was just 15 to 16 years of age and the naval hierarchy failed to respond effectively to his complaints of the assaults (the sexual assault incidents);

    (b)the applicant has suffered serious trauma as a consequence of the sexual assault incidents;

    (c)the applicant has also suffered serious trauma as a consequence of experiences during his naval service more broadly, including in particular during his service in Vietnam;

    (d)following the trauma the applicant has suffered as a result of his naval service, the applicant has developed intense depressive symptoms that have had, and continue to have, a material adverse impact on his quality of life;

    (e)the applicant’s depressive symptoms meet the diagnostic criteria for a DSM-V major depressive disorder and constitute a separate condition that is comorbid with his PTSD and alcohol use disorder conditions; and

    (f)the major depressive disorder gives rise to liability for compensation under the SRC Act as a consequence of incapacity or impairment.

15. The applicant has subsequently claimed that his depressive condition has been further exacerbated by the experience of revisiting the sexual assault incidents through the course of preparing for and giving evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) and also by his treatment by the Department of Veterans Affairs (the Department) through the claims process itself.

16. In pressing his claims, the applicant has, in particular, relied on the medical opinion of his general practitioner, Dr Scott Macrossan. It is contended on behalf of the applicant that Dr Macrossan’s assessment of the applicant supports the existence of a standalone depressive condition. The applicant’s written submissions also place some reliance on the acknowledgement of clinical psychiatrist, Dr Geoff McDonald, that the likely original root cause of the applicant’s depressive symptoms is his sexual assault history. However, it is contended on behalf of the applicant that to the extent that Dr McDonald’s opinion does not support the existence of a standalone condition of depression, the opinion of Dr Macrossan, as the applicant’s long-time general practitioner, should be preferred.

17. In addition, the applicant’s written submissions make reference to a bundle of medical research literature that was before the Tribunal in further support of the applicant’s claim. More specifically, it was contended that the medical research literature strongly supports a conclusion that there is a high correlation between PTSD and depression, that a person who has experienced early trauma and subsequently developed PTSD is at a significantly higher risk of subsequently developing depression, and that approximately 50% of all people with a diagnosed PTSD condition are also diagnosed with a comorbid depressive condition. It was further contended that the medical research literature supports a conclusion that a person who has been exposed to military combat trauma is particularly vulnerable to PTSD and depression comorbidity.

18. The respondent does not dispute that the sexual assault incidents occurred or that the applicant has experienced serious trauma as a consequence of those incidents. That much has already been conceded by the respondent in its acceptance of liability for the applicant’s PTSD condition. However, the respondent continues to resist the applicant’s claim that he suffers from a standalone depressive condition. The respondent contends that the applicant’s depressive symptoms are properly understood as a feature of his previously diagnosed and accepted PTSD condition. The respondent relies on the opinion of consultant psychiatrist Dr Geoff McDonald. The respondent also refutes the contention put on behalf of the applicant that the medical opinion of Dr Macrossan supports the existence of a standalone depression condition. The respondent contends that to the extent of any inconsistency in the opinions of Dr Macrossan and Dr McDonald, that Dr McDonald’s opinion should be preferred given his specialisation as a consultant psychiatrist.

19. The Tribunal heard from the applicant directly at the hearing. The Tribunal found the applicant to be a highly credible and truthful witness. The Tribunal accepts the applicant’s evidence regarding his experiences while serving in the Navy as well as his description of his depressive symptoms. On the basis of the applicant’s evidence together with the broader evidence before the Tribunal, the Tribunal accepts that the applicant:

    (a)suffered a series of sexual assaults during his naval service in the early 1970s while he was just 15 to 16 years of age;

    (b)reported the assaults at the time and that the naval hierarchy failed to appropriately respond to his reports;

    (c)was significantly traumatised by those events;

    (d)suffered further trauma during his naval service more broadly including, in particular, during his service in Vietnam;

    (e)suffers from depressive symptoms and has done so at varying levels of intensity since around the time of the sexual assault incidents; and

    (f)has experienced other significant life events that have further exacerbated his depressive symptoms including the death of his father, his divorce, the revisiting of his sexual assault trauma through his involvement in the Royal Commission and also as a consequence of his dealings with the Department during the claims process itself.

20. In his direct evidence the applicant provided a brief description of the sexual assault incidents. He told the Tribunal that the first two incidents occurred in November 1971 while he was serving on HMAS Leeuwin as a 15-year-old. He was then subjected to a further sexual assault in 1972 while serving on HMAS Sydney en route to Vietnam.[2] On both occasions the applicant reported the incident to his superiors, but no action was taken in response and on each occasion, he was encouraged not to pursue the matter further.

    [2] Transcript, 18.

21. The applicant told the Tribunal that when he reported the first assault he was told to “man up” and that it just “didn’t happen”.[3] He described there being a code of silence in relation to such issues. He described being concerned that if he continued to press the issue his career in the Navy would be put at risk. The applicant told the Tribunal that when he reported the further sexual assault in 1972, he named the perpetrator and was subsequently approached by the perpetrator and warned not to pursue it. The applicant was then told by the reporting officer that there was no substance to his allegation and that no further action would be taken.

    [3] Transcript, 17.

22. The applicant told the Tribunal that in the immediate aftermath of the first two incidents he felt embarrassed and ashamed and considered “running away”.[4] He described feeling embarrassed to tell his father. His father was also a naval seaman and was very “militaristic” in his attitudes.[5] The applicant was concerned that his father would not believe him and would think he had just made it up to justify leaving the Navy. The applicant described being very confused and wanting to reach out to someone for help, but no help was forthcoming. The applicant told the Tribunal that after the 1972 assault he felt betrayed, scared and despondent at the thought that his complaint would not go anywhere. Following the second assault the applicant reported to the medical officer onboard, told him what had occurred and described feeling very unwell and very depressed. The applicant was prescribed an “aspro” to help calm him down but no further action was taken.

    [4] Transcript, 18.

    [5] Transcript, 18-19.

23. The applicant told the Tribunal that upon discharge from the Navy in 1981, he reported the sexual assaults to the naval authorities but again no action was taken. The applicant described the depression he was experiencing to the medical officer who assessed him during the discharge process, but in response he was told that he would “get over it”.[6]

    [6] Transcript, 17.

24. Sometime shortly after his discharge from the Navy the applicant saw his general practitioner, outlined the sexual assault incidents and described the symptoms he was experiencing including that he was feeling “depressed” and “down” and that the incident “was starting to play on my mind a lot”.[7] The applicant was then prescribed an anti-depressant. The applicant has continued to take antidepressants in the management of his depressive symptoms since that time.

    [7] Transcript, 21.

25. There is also evidence before the Tribunal that in around 2016 the applicant was approached by the Federal Police in relation to his previous claims of sexual assault and asked to give evidence before the Royal Commission. The applicant told the Tribunal that he found the process of revisiting the sexual assault incidents extremely confronting and that he began to increase his alcohol use quite significantly during this period.[8] He told the Tribunal that it was through the process of preparing for the Royal Commission and giving evidence that the memories of the sexual assaults started to “consume him” and that it still does to some degree. He told the Tribunal: “I thought it was all in the past but it’s not in the past anymore”. [9]

    [8] Transcript, 24.

    [9] Transcript, 22.

26. The applicant told the Tribunal that prior to the period leading up to the Royal Commission he had not been a particularly heavy drinker but had engaged in binge drinking. He described first starting to drink alcohol at around 17 years-of-age while serving in the Navy and that his drinking pattern was “somewhat bingey” but fairly typical amongst the crew.[10] He said that he would engage in drinking sessions while in port but never while at sea and that he always maintained a reasonable level of moderation. He did concede however that there were times when he would drink by himself a little bit when he was annoyed with himself or despondent or somewhat depressed.[11] He told the Tribunal that he felt particularly impacted when his father passed away and that he lost his sense of direction and felt let down during this period. However, it was only during the period immediately after the Royal Commission that he commenced drinking very heavily as a way of managing the memories of his sexual assault incidents that had been triggered through the process.

    [10] Transcript, 23.

    [11] Transcript, 24.

27. The applicant told the Tribunal that he continues to struggle with the effective management of the trauma from the sexual assault incidents. He explained that he continues to take antidepressant medication to help with his depressive symptoms, and goes to great lengths to avoid anything that can trigger memories of the incidents.

28. The applicant told the Tribunal that in addition to seeing his general practitioner he has also been seeing a psychiatrist over the course of the last 12 months who has confirmed that the antidepressant medication he takes continues to be appropriate.[12]

    [12] Transcript, 22.

29. When the applicant was asked whether he had ever suffered depression prior to his time in the Navy he told the Tribunal that he had experienced a difficult time as a younger child following the separation of his parents.[13] He told the Tribunal that his mother had left when he was around eight years of age and that had been forced to live with his father and did not feel happy during this period of his life. He told the Tribunal that he is not sure how to characterise the feelings he experienced during this time in his life, but he was not sure it was “depression”. He told the Tribunal:[14]

    “It was just teary staff as a boy growing up that every child probably goes through, that you miss your parent or affection and love and all the things that go into your childhood that I never, ever received. So if “depressed” is the right word for it, I’m not sure”.

    [13] Transcript, 24.

    [14] Transcript, 34.

30. There was also evidence before the Tribunal of other significant events in the applicant’s life that had adversely impacted the applicant to some degree. Those periods included the death of his father which occurred in around 1974, and also his separation from his former wife.

31. When asked whether or not there were any mental health issues in his broader family the applicant told the Tribunal that he was not aware of any members of his broader family suffering mental health issues although he was aware that his two sons had been through a form of counselling. He told Tribunal that he was not aware of the purpose of the counselling they had undertaken.[15]

    [15] Transcript, 25.

32. The applicant was first diagnosed with PTSD by Dr Alexander Murray in 1997.[16] The Tribunal materials included a report from Dr Murray dated 10 February 1997.[17] The applicant described his interaction with Dr Murray in his direct evidence. The applicant told the Tribunal that he went to see Dr Murray due to recurring nightmares that were more “aligned to being in Vietnam than […] the sexual assaults”.[18] He told the Tribunal:[19]

    “I’m not sure why those nightmares were happening but they did and they became prevalent in my life. He suggested I had PTSD, which was foreign to me. I’d never heard of it and I think it was in its infancy in those stages anyway. Again, he prescribed me more medication similar to Lovan, which I’ve continued to take”.

    [16] T-documents, 9-11.

    [17] T-documents, 9-11.

    [18] Transcript, 22.

    [19] Transcript, 22.

1. In his report Dr Murray makes no express mention of the applicant suffering depression although he does note the applicant’s description of feeling “nervous and edgy”[20] and having reported:

   …“impaired socialisation and a tendency to be a recluse. Crowds make him feel uncomfortable. He is troubled by irritability, a short temper and intolerance of others. His sleep is chronically broken and he attributes this to recurrent dreams”.[21]

   [20] T-documents, 9.

   [21] T-documents, 10.

2. Dr Murray describes the basis of his diagnosis of PTSD as being the trauma the applicant suffered as a consequence of the applicant’s military service and notes that he has “discussed with [the applicant] the possibility that he may benefit from a trial treatment with a specific serotonin re-uptake inhibitor and may also benefit from relaxation training and/or involvement in a PTSD in-patient treatment program”.[22] Dr Murray makes no mention of the sexual assault incidents in his report and it would appear that Dr Murray was not made  aware of the incidents, and in relying on the applicant’s military service as a basis for his diagnosis, he was referencing the applicant’s claims of trauma as a result of his Vietnam service specifically.

   [22] T-documents, 11.

3. The applicant’s current general practitioner, Dr Macrossan, undertook an impairment assessment of the applicant in connection with the applicant’s alcohol use disorder in July 2019. A copy of that assessment dated 29 July 2019 is included in the Tribunal materials. In the impairment assessment Dr Macrossan noted a number of mental health observations regarding the applicant including a “severe disturbance of thinking causing significant risk or actual harm to self or others”, “usual life stressors” causing “moderate distress” and a “need for modification of daily living patterns to reduce symptoms”, a substantial reduction in social interactions, a substantial reduction in most recreational pursuits.[23] The assessment also refers to the applicant suffering significantly from a mental distress perspective as a consequence of the alcohol use disorder.[24] In the assessment Dr Macrossan also lists “depression - 25%” in the section dealing with apportionment of known conditions impacting impairment.[25]

   [23] T-documents, 16-18.

   [24] T-documents, 21.

   [25] T-documents, 22.

4. The Tribunal materials also included two further letters written by Dr Macrossan in respect of the applicant. The first of those was addressed to “to whom it may concern” and is dated 28 January 2022. In that letter Dr Macrossan notes the applicant’s “long-standing history of depression” and states that the applicant saw a psychologist and a psychiatrist in his late 20s apparently for around three years and was prescribed an antidepressant at that time. Dr Macrossan notes that:[26]

   “[The applicant] has post-traumatic stress disorder which has been diagnosed by at least 2 specialist psychiatrists.

   He has depression symptoms which are ongoing and have been for many years.

   It can be argued that this is an inherent part of the symptomatology within the diagnosis of post-traumatic stress disorder.

   Whether depression is a separate diagnosis is something for a specialist psychiatrist to determine.

   I understand that this is a complicated area and whether there are two diagnosis at play or the post-traumatic stress disorder has caused the depression symptoms to me seems somewhat academic.

   It is important to treat the patient and his symptoms and whether the correct labels are put on him often do not really matter at the end of the day”.

   [26] Dr Macrossan letter dated 28 January 2022.

5. The second of Dr Macrossan’s letters is dated 18 February 2022 and prepared specifically for the purpose of answering a series of questions put to Dr Macrossan by the respondent’s lawyers. In his second letter Dr Macrossan states as follows:[27]

   [27] Dr Macrossan letter dated 18 February 2022. 

   “It is also important to note in paragraph 26 of the statement of facts issues and contentions of the respondent that the respondent clearly states that I referred to depression as a condition contributing to the applicant’s impairment and the respondent contends that the opinion of the specialist psychiatrist Dr McDonald should be preferred to that of myself due to the fact that Dr McDonald is a specialist in the field of psychiatry. I also note that in paragraph 27 the respondent notes that there is no indication of any diagnosis of depression by Dr Macrossan in his clinical treatment records in respect of the applicant.

   I explained to you that I am not a psychiatrist and I felt uneasy answering the questions raised in the report request however I agreed to follow your instructions and complete the report to the best of my ability.

   …

   My first consultation with [the applicant] was on 1 February 2017.

   Thereafter the consultations mainly dealt with continuing to prescribe his antidepressants, filling in DVA paperwork and treating him for various chest infections.

   From what I can ascertain the question at hand that needs to be determined is whether [the applicant] in fact has two DSM-V categorised diagnoses or one. Does he have major depression as defined by the DSM-V criteria or does he have post-traumatic stress disorder which inherently has depressive symptoms as part of the diagnostic criteria.

   There is no doubt that [the applicant] has had depressive symptoms for many years well before I started seeing him five years ago and it would appear from him and the expert specialist psychiatrists that have examined him that there is no doubt that his depressive symptoms primarily stem from his trauma during his time working for the Royal Australian Navy.

   At a recent consultation with [the applicant] we had a discussion about his mental health and there is little doubt that over the years he has had many of the multiple symptoms that would get him over the line to formulate a diagnosis of major depression under the DSM-V criteria. These symptoms have been present over the years but in recent times he has been much better and the fluoxetine treatment that he has been on and his commendable changes to his lifestyle in giving up alcohol have undoubtedly contributed significantly to this improvement.

   The symptoms which he has experienced over the years certainly include depressed mood most of the day nearly every day, markedly diminished interest and pleasure in most activities most of the day nearly every day, slowing down of thought, insomnia nearly every day which continues to be a feature, fatigue and loss of energy nearly every day, feelings of worthlessness, diminished ability to think nearly every day.

   I note that under the DSM-V criteria the symptoms must also not be as a result of substance abuse. The Department of Veterans Affairs is aware of [the applicant’s] claim for alcohol overuse due to his time in service and I will refer to an expert specialist psychiatrist to ascertain whether this would preclude a diagnosis of major depression being made.

   In answer to your specific questions you asked my opinion on the balance of probabilities as to what the factors are that have caused or contributed to the development of [the applicant’s] depression. I would prefer to say attributed to the development of his depressive symptoms since we are currently uncertain as to whether there is a diagnosis of major depression or whether he has PTSD with depressive symptoms. In any case the factors which have contributed to his symptoms is the recognised abuse that he suffered whilst in his former service with the Royal Australian Navy.

   This does not seem to be disputed in any of the documents from the expert specialist psychiatrists that I have read. The recurring theme is as to whether there are two separate diagnoses.

   I am unaware of any other factors that have contributed to his depressive symptoms as the service issues have been at the forefront of any aetiological discussion.

   The approximate date of the onset of his depressive symptoms is more likely than not around 1997 when he lodged the claim.

   I cannot emphasise enough however that differentiating between major depression and post-traumatic stress disorder can be an extremely difficult complicated task even in the hands of an experienced specialist psychiatrist.

   This is certainly not something I would begin to be confident in carrying out. It would be inappropriate for me to counter the expert psychiatrists as I do not have psychiatric qualifications.

   I would strongly recommend to the Australian Government Solicitor that further advice if needed should be sought from an experienced psychiatrist in this field”.

6. Consultant psychiatrist, Dr Geoff McDonald, assessed the applicant in around September 2020. Dr McDonald undertook his assessment by videoconference on 1 September 2020 and subsequently issued a report dated 21 September 2020.[28]

   [28] T-documents, 46-78.

7. In his report Dr McDonald set out a brief summary of the applicant’s history as described to him which includes, among other things, the applicant’s description of the sexual assaults, the lack of an effective response from the naval hierarchy and the applicant’s involvement in the Royal Commission. Dr McDonald notes the applicant’s description of being “terrified” while spending a month in Vietnam in 1972 and the concerns he had for his safety through the balance of his naval deployments although he does not explore these events in any great depth.[29] Dr McDonald also briefly notes the applicant’s description of other issues he has faced in his life including the breakdown of his marriage, his sexual dysfunction and his alcohol abuse. Dr McDonald also notes the applicant’s description of mood variation and other depressive symptoms including the applicant’s tendency to isolate socially, irritable mood state, at times being dependent on sedative medications, chronic sleep problems, experiencing nightmares, having variable energy levels, low mood and feeling anxiety triggered by a loud noise or other reminder of child sexual assault.[30] The report does not include a detailed description of how the applicant’s depressive symptoms have fluctuated overtime.

   [29] T-documents, 48.

   [30] T-documents, 48-49.

8. Dr McDonald’s report also provides a very brief description of the applicant’s current lifestyle, current treatment, previous psychiatric history, previous medical history, drug and alcohol history, social history and employment history as well as a summary of his mental state examination of the applicant.

9. In an annexure to the report Dr McDonald answers a series of specific questions put to him by the respondent.

10. On the basis of his assessment of the applicant, Dr McDonald diagnosed the applicant with PTSD and alcohol use disorder. While acknowledging that the applicant suffers depressive symptoms, Dr McDonald expressly excludes the applicant having a standalone depressive condition. In addressing the applicant’s depressive symptoms in this context Dr McDonald states that:

    “[The applicant's] depression is best categorised under PTSD and alcohol use disorder, because PTSD is the primary problem stemming from his assaults and the failure of the RAN to take any supportive action.

    The diagnosis of a separate depressive disorder is problematic in the context of PTSD and long-term alcohol abuse. DSM V specifies several examples of depressive symptoms common in PTSD. These include persistent negative beliefs; persistent negative emotional state; diminished interest in activities; estrangement from others; and inability to experience positive emotions.

    Another possible DSM V diagnosis is Alcohol-induced Depressive Disorder. However, in my opinion, this diagnosis is also not applicable because the likely original root cause of the depression in is his assault history, not the alcohol. Likewise, the likely root cause of the alcohol use disorder is also his assault history. This is why his alcohol abuse escalated during the Royal Commission”.

11. In his direct evidence Dr McDonald confirmed his opinion that while the applicant suffers from depressive symptoms he does not suffer from a standalone depressive condition and that the applicant’s depressive symptoms are best understood as being a feature of his PTSD condition. Dr McDonald told the Tribunal that central to his opinion is his observation that the applicant’s depressive symptoms are entirely consistent with and proportionate to the types of symptoms that he would expect to see in a person suffering PTSD and with the applicant’s sexual assault history.  Dr McDonald told the Tribunal that it would be remarkable if the applicant had not suffered depressive symptoms given what he has had to endure.[31] 

    [31] Transcript, 35.

12. Dr McDonald acknowledged the existence of extensive medical research literature that addresses the relationship between PTSD and depression including amongst combat veterans. However, Dr McDonald maintained that the medical research literature does not alter his view and that the literature reflects the complex relationship between PTSD and depression and the fact that medical specialists differ in their approach to the issue.

13. Dr McDonald acknowledged that the applicant has been diagnosed with a separate condition of alcohol use disorder but explained to the Tribunal that he considered this to be appropriately diagnosed as a comorbid condition given the extent of the applicant’s alcohol abuse which, at its peak, was extreme.[32]

    [32] Transcript, 39.

14. When the Tribunal questioned Dr McDonald directly as to whether or not the applicant suffers from PTSD as well as a separate depressive condition or PTSD with depression as a feature of the condition, Dr McDonald told the Tribunal “in my opinion he suffers from PTSD with depression as a feature of the condition”.[33] Dr McDonald explained that while the applicant’s symptoms could potentially justify a diagnosis of a number of different conditions, in his view each of the other diagnosis would not fully capture the condition the applicant is suffering and that in his view the most appropriate and complete diagnosis therefore is PTSD with depressive symptoms. Dr McDonald also noted that the approach to diagnosis in cases such as that of the applicant is difficult given the overlap of some symptoms of PTSD and depression as well as with a number of other conditions. Dr McDonald expanded further on the point as follows:[34]

    “… Could you argue .. that adding a standalone major depressive disorder ticks the boxes for [a DSM diagnosis]?

    Well, you probably could. It’s just that it doesn’t from a diagnostic point of view, as a psychiatrist, it doesn’t quite capture the post-trauma aspect of it. Could you diagnose that he’s got insomnia disorder? Well, yes, you probably could. He probably meets the criteria for a DSM insomnia disorder given his chronic insomnia. Could we diagnose a panic disorder? You probably could. He’s got panic attacks. Could you diagnosis social phobia and maybe an avoidant personality? Could you diagnose a generalised anxiety disorder? We could probably add about 10 DSM diagnoses. DSM is that kind of document. It’s just that it confuses the situation, it doesn’t simplify the situation, it confuses it so that when it comes to asking a psychiatrist who has done a lot of work with anxiety disorders and mood disorders and PTSD what is the right diagnosis here, in my opinion, it’s PTSD. It’s not a major depressive disorder”.

    [33] Transcript, 33.

    [34] Transcript, 34.

15. Dr McDonald emphasised that in reaching this conclusion he was not seeking to dismiss in any way the impact of the depressive symptoms the applicant has suffered and continues to suffer. Dr McDonald told the Tribunal that if the applicant had described to him distinctive depressive symptoms such as psycho-motor features of agitation, hospital admissions, treatments like electroconvulsive treatment (ECT) and maybe a broader history of depression or other developmental features that potentially predisposed the applicant to significant depression or a psychotic depression then he may have considered it more appropriate to diagnose the applicant with a separate major depression condition as well as PTSD.[35]

    [35] Transcript, 35.

16. The Tribunal accepts that the medical research literature presented by the applicant’s representatives makes clear that comorbidity of PTSD and depression is common and can occur in around 50% of cases.[36] The literature also supports the conclusion that trauma suffered in childhood, trauma suffered during military combat and a PTSD condition are all considered to be significant risk factors in the subsequent development of a depressive condition. However, in the Tribunal’s view, the literature also makes clear that the relationship between PTSD and depression is extremely complex and while it may be common for a person who has experienced childhood or military combat trauma or who has otherwise been diagnosed with PTSD to also be diagnosed with comorbid depression, there remains a very significant percentage of cases in which no separate depression diagnosis is made. There were a number of references in the literature to the fact that some symptoms of PTSD overlap with depression which can present challenges in making a diagnosis of each of the conditions. The Tribunal is satisfied that it is not inconsistent with the weight of the medical research literature for the applicant’s depressive symptoms to be viewed as a feature of his PTSD condition and not a standalone depressive condition as concluded by Dr McDonald. Nor would the weight of the literature be inconsistent with a conclusion that the applicant was suffering a standalone condition. In the Tribunal’s view, while the literature has been helpful in reinforcing the complex relationship between PTSD and depression it does not present a basis for reaching a conclusion one way or the other as to the existence of a standalone condition in the particular circumstances of the applicant’s case.

    [36] See for example, Valerie A.Stander, Cynthia J.Thomsen, Robyn M.Highfill-McRoy, ‘Etiology of depression comorbidity in combat related PTSD: A review of the literature’ (2014) Clinical Psychology Review 34, 87–98. See also, Samantha Angelakis and Reginald D.V.Nixon, ‘The Comorbidity of PTSD and MDD: Implications for Clinical Practice and Future Research’ (2015) Behaviour Change 32(1), 1–25.

17. The Tribunal is satisfied that there is no medical opinion currently before it that would support a conclusion that the applicant suffers from a standalone depressive condition. More specifically, the Tribunal does not accept the contention put on behalf of the applicant that Dr Macrossan has made a diagnosis that the applicant suffers from a standalone depressive condition. While Dr Macrossan has acknowledged that the applicant suffers from depressive symptoms and has also previously referred to the applicant’s “depression” as impacting his impairment, it is clear from Dr Macrossan’s correspondence of January and February this year that he retains a serious reservation in forming a view as to whether or not the depressive symptoms of which the applicant suffers constitutes a separate standalone depressive condition, or are better understood as a feature of the applicant’s PTSD.

18. The Tribunal is also satisfied that a conclusion that the applicant is suffering from a standalone depressive condition is not supported by Dr McDonald’s opinion. While Dr McDonald acknowledged that the question regarding the appropriate diagnosis was one on which medical specialists are likely to differ, it was clear from his evidence that in his view the applicant does not suffer from a separate depressive condition. The Tribunal is satisfied that there is no persuasive medical opinion before it that would support a conclusion that the applicant suffers from a standalone depressive condition.

    However, notwithstanding this conclusion, the Tribunal is not satisfied that it is appropriate in all of the circumstances to dismiss the applicant’s claim on the basis of Dr McDonald’s opinion. This is due to residual concerns the Tribunal retains with aspects of Dr McDonald’s assessment of the applicant and his report. The applicant’s representative has also raised a number of concerns regarding Dr McDonald’s assessment and report. The Tribunal addresses each of these issues below.

1. It was put on behalf of the applicant that Dr McDonald’s opinion should not be relied upon as a consequence of what was said to be Dr McDonald’s failure to comply with appropriate guidelines for the preparation of a psychiatrist report in the context of the applicant’s claim. The respondent appropriately acknowledged in post-hearing submissions that the Department has issued guidelines for psychiatric compensation claims including in respect of claims made pursuant to the SRC Act. Those guidelines are CM7014 MRCC181 - Guidelines for Psychiatric Compensation Claims (the Guidelines).[37]

   [37] Department of Veterans’ Affairs, CM7014 MRCC181-Guidelines for Psychiatric Compensation Claims (2019).

2. The applicant’s representatives allege that the manner in which Dr McDonald undertook his assessment of the applicant and prepared his report was materially non-compliant with the Guidelines and that therefore his report, and opinion more broadly, should not be relied upon by the Tribunal. The alleged non-compliance includes that Dr McDonald’s report did not comply with the suggested format for a psychiatric report and that his assessment and report did not adequately account for all of the applicant’s relevant history. More specifically, it was put that the method of assessing the applicant by way of a one hour video conference was inadequate and that Dr McDonald also failed to make enquiries of family and friends of the applicant that may have assisted in better understanding the applicant’s full history and circumstances.

3. The respondent conceded that the Guidelines were not provided to Dr McDonald for the purpose of his assessment of the applicant and preparation of his subsequent report. However, the respondent submitted that the Guidelines do not form part of the relevant legislative scheme, are not a directive and are therefore not strictly required to be complied with. The respondent contends that Dr McDonald’s report addressed the Guidelines in substance even if the subheadings of his report did not strictly correspond with those set out in the Guidelines. The respondent also contends that there is otherwise no material deficiency in the manner in which Dr McDonald undertook his assessment of the applicant or prepared his report that should cause the Tribunal to not rely on Dr McDonald’s opinion.

4. When giving his direct evidence Dr McDonald conceded that other than the Guidelines for Expert Witnesses, he had not referred to any specific sets of guidelines in undertaking his assessment of the applicant nor in preparing his report, but that he did have regard to his own significant experience as a medico-legal consultant in preparing reports.[38]

   [38] Transcript, 40.

5. The Tribunal is satisfied that the Guidelines are a relevant guide for the preparation of a psychiatric report for compensation claims of this kind. However, it accepts the respondent’s contention that they do not form part of the legislative scheme and are not a directive. Accordingly, there is no strict requirement for the Guidelines to have been complied with. In any case, the Tribunal does not accept that Dr McDonald’s opinion should not be relied upon due to some form of technical non-compliance with the Guidelines.

6. However, the Tribunal does accept the contention put on behalf of the applicant that Dr McDonald’s assessment and report did not consider it sufficient detail the applicant’s full psychiatric history, including the full scope of relevant stressful events he has experienced or other potential causal factors that may have contributed to the applicant’s depressive symptoms. Those stressful events would include the trauma the applicant experienced as a consequence of his service in Vietnam, the death of his father, his divorce, his alcohol use, his revisiting of sexual trauma through the Royal Commission process and his dealings with the Department in the context of the claims process itself. It may also extend to stressful events the applicant experienced as a consequence of the separation of his parents during his childhood. While Dr McDonald’s report addresses most of these issues in some form, it is clear from the report, as well as from Dr McDonald’s direct evidence, that the focus of his assessment of the applicant, together with his subsequent report, was the applicant’s depressive symptoms in the context of the applicant’s sexual assault history. Consequently, the applicant’s experience of other stressful events was dealt with in passing only and not as potentially independent causal factors contributing to his depressive symptoms. The Tribunal accepts the applicant’s contention that the absence of a more detailed consideration of the applicant’s full psychiatric history may have influenced Dr McDonald’s ultimate conclusion as to the appropriate diagnosis.

7. The Tribunal is also satisfied that Dr McDonald’s assessment and report did not consider in sufficient detail the applicant’s full history of depressive symptoms nor does the report consider in any real detail the manner in which those symptoms fluctuated over time, other than to make the very general observation that the applicant has experienced symptoms since around the time of the sexual assaults and that those symptoms did in fact fluctuate. The assessment and report also did not explicitly address each of the DSM-V criteria for a depressive disorder. In the Tribunal's view this is significant given Dr McDonald’s explanation that the basis of his diagnosis of the applicant was his perception that the applicant’s depressive symptoms were understandable by reference to, and proportionate to, the applicant’s history of sexual assault. Dr Macrossan acknowledged in his evidence that the applicant’s experience of depressive symptoms have fluctuated over time and have reduced notably more recently as a consequence of commendable lifestyle changes the applicant has made. For these reasons, the Tribunal is also satisfied that the absence of a more detailed consideration of the applicant’s full history of depressive symptoms and a more complete assessment against the DSM-V criteria may also have influenced Dr McDonald’s opinion as to the appropriate diagnosis.

8. The Tribunal’s conclusion in this respect is not intended to be unduly critical of Dr McDonald. Dr McDonald made clear in his evidence that he had undertaken his assessment and subsequent report on the understanding that the focus was intended to be the applicant’s depressive symptoms in the context of the sexual assault incidents. In that context, a failure to explore the applicant’s broader history more fully may be perfectly understandable. Nonetheless, in the Tribunal’s view the deficiency remains.

9. It was also put on behalf of the applicant that in circumstances where there is an incomplete or otherwise unsatisfactory diagnosis, the Guidelines place an obligation on the respondent to obtain a second medical opinion before determining a claim. 

10. While the Tribunal does not accept the contention that there is a strict requirement pursuant to the Guidelines for the respondent to have obtained a second specialist opinion, the Tribunal does accept that in all of the circumstances of the applicant’s case it would be appropriate to do so prior to rejecting the applicant’s claim.

11. For these reasons, the Tribunal is satisfied that in the circumstances of this case the appropriate course of action is for the decision under review to be set aside, for the matter to be remitted back to the decision-maker for reconsideration with a direction that a further medical opinion be obtained from an appropriately qualified consultant psychiatrist which addresses all of the applicant’s circumstances relevant to forming a view as to the existence of standalone depressive condition, including those specifically identified above as having not been fully considered in Dr McDonald’s assessment and subsequent report.

12. Given the time that has run, the Tribunal would request that such further consideration be undertaken as expeditiously as possible.

    DECISION

13. The decision under review is set aside and the matter is remitted back to the decision-maker with the direction that a further specialist medical opinion be obtained that addresses all of the circumstances relevant to the applicant’s depressive symptoms, including those specifically identified in the Tribunal’s Decision.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of the Hon. Matthew Groom, Senior Member.

............................[sgd]............................................

Associate

Dated: 18 July 2022

Date(s) of hearing:	3 May 2022
Advocate for the Applicant:	Ms Jemima Crewes
Solicitors for the Respondent:	Australian Government Solicitor