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

[2016] AATA 759

Powell and Secretary, Department of Social Services (Social services second review) [2016] AATA 759 (29 September 2016)

Division	GENERAL DIVISION
File Number	2015/0959
Re	Kristian Powell
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President F J Alpins
Date	29 September 2016
Place	Melbourne

The decision under review is affirmed.

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

Deputy President F J Alpins

SOCIAL SECURITY – disability support pension – mental health condition – condition – whether applicant’s impairment was of 20 points or more under the Impairment Tables during the relevant period – whether applicant’s condition permanent – whether applicant’s condition had been fully stabilised – whether a medical or other compelling reasons for applicant not to undertake reasonable treatment – whether pharmaceutical treatment of mental health condition reasonable treatment

Legislation

Acts Interpretation Act 1901 (Cth)

Legislative Instruments Act 2003 (Cth) ss 5, 13

Social Security Act 1991 (Cth) ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth) ss 39, 41, 42, 179, Sch 2 cls 3, 4

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 3, 5, 6

Cases

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389

De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Harris v Secretary of Employment and Workplace Relations (2007) 158 FCR 252

King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184

Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617

Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Re Shields and Secretary, Department of Social Services [2015] AATA 759

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Suntory (Aust) Pty Ltd v Federal Commissioner of Taxation (2009) 177 FCR 140

Whittaker v Comcare (1998) 86 FCR 532

Secondary Materials

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

REASONS FOR DECISION

Deputy President F J Alpins

29 September 2016

INTRODUCTION

1. This application for review concerns the respondent’s decision dated 27 August 2014 to reject the claim of the applicant, Mr Kristian Powell, for a disability support pension (“DSP”) under the Social Security Act 1991 (Cth) (the “Act”).

2. Mr Powells’ claim was rejected on the basis that his impairment did not satisfy s 94(1)(b) of the Act, in that it did not meet the impairment rating of 20 points or more under the Impairment Tables, being the tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the “Determination”).

3. A Centrelink authorised review officer (“ARO”) affirmed the decision to reject Mr Powell’s claim, on several grounds, including that an impairment rating could not be assigned to his impairment as his condition causing that impairment, which was accepted as being “an adjustment disorder with depressed and anxious mood”, was not permanent as it had not been fully treated and fully stabilised for the purposes of the Determination. Mr Powell’s appeal to the Social Security Appeals Tribunal was unsuccessful; consequently, he then made this application for review (see s 179 of the Administration Act).

4. The issue in this proceeding is whether Mr Powell was qualified for DSP at any relevant time. As he made his claim for DSP on 22 July 2014, it follows that the relevant period for assessment of his qualification for DSP is the period commencing on that day and ending 13 weeks thereafter (the “relevant period”) (ss 39(3), 41, 42 and cls 3(1) and 4(1) of Sch 2 to the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”)).

   LEGISLATION AND RELEVANT PRINCIPLES

   Section 94 and the Determination

5. It is convenient to commence by setting out the relevant legislative provisions and general principles germane to the Tribunal’s decision. Section 94 of the Act relevantly provides:

   “(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;

   ....”

6. The term “Impairment Tables” referred to in s 94(1)(b) is defined to mean the tables determined by an instrument under s 26(1) of the Act (s 23 of the Act). As I have indicated, that instrument is the Determination, which contains tables relating to the assessment of work-related impairment for DSP and the rules that are to be complied with in applying them for the purposes of ss 26(1) and 26(3) of the Act respectively.

7. Relevantly, s 6 of the Determination provides:

   “6        Applying the Tables

   Assessing functional capacity

   (1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

   Applying the Tables

   (2)The 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.

   ...

   Impairment ratings

   (3)An impairment rating can only be assigned to an impairment if:

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

   ...

   Permanency of conditions

   (4)For the purposes of paragraph 6(3)(a) 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.

   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; and

   (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.

   Fully stabilised

   (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.

   ...

   Reasonable treatment

   (7)For the purposes of subsection 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.

   …”

8. The term “condition” is defined for the purposes of the Determination to mean a medical condition; the term “impairment” is defined to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” (s 3).

9. As the Determination is a form of delegated legislation, it is to be construed in accordance with general principles of statutory interpretation (Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398, applying King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195 per Dixon J; Whittaker v Comcare (1998) 86 FCR 532 at 543).

10. Furthermore, as the Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth) (the “Instruments Act”) (see s 5), the Acts Interpretation Act 1901 (Cth) applies to the Determination as if it were an Act and as if each provision of the Determination were a section of an Act (s 13(1)(a)) of the Instruments Act). Also, expressions used in the Determination have the same meaning as in the Act (s 13(1)(b)). Moreover, the Determination is to be read and construed subject to the Act (s 13(1)(c)).

11. In Shields and Secretary, Department of Social Services [2015] AATA 759 at [39] - [41], I considered the proper construction of ss 6(5) and 6(6) of the Determination, which concern whether a condition has been fully diagnosed, fully treated and fully stabilised for the purposes of s 6(4) which, as I have indicated, governs the permanency of conditions. It is apt to set out the following passages from that decision:

    “Section 6(5) of the Determination, by employing the expression “the following is to be considered”, enumerates matters to which regard must be had in determining whether a condition has been “fully diagnosed” and “fully treated” for the purposes of s 6(4)(a) and (b) respectively and is thus “permanent” on those accounts for the purposes of s 6(3)(a) of the Determination. Paragraphs (a) to (c) of s 6(5) raises questions of fact (see Harris v Secretary of Employment and Workplace Relations (2007) 158 FCR 252 at [20] per Gyles J). In my view the terms “fully diagnosed” and “fully treated” nevertheless bear their ordinary meaning, having regard to their context and purpose. In other words, while the matters to be considered for the purposes of s 6(5) of the Determination are exhaustively enumerated, they are not definitive as to whether a condition has been fully diagnosed and fully treated for the purposes of s 6(4)(a) and (b).

    The immediate context with respect to the statutory meaning of those terms (especially the use of the word “fully”) includes the fact that s 6(5)(c) confines the requisite focus to treatment planned in the ensuing period of 2 years, which accords with the prescribed time periods in ss 6(3)(b) and 6(6) of the Determination. (I note that, while s 6(5)(b) refers to both past treatment and rehabilitation, s 6(5)(c) refers only to continuing and planned treatment, and not to such rehabilitation.) The wider context includes the fact that those expressions bear upon whether the prerequisites to the assignment of an impairment rating for the purposes of s 6(3) of the Determination are met and thus bear upon qualification for DSP under s 94(1)(b) of the Act (see also s 5(2)(a) of the Determination).

    By way of contradistinction, in my view s 6(6) is exhaustively definitive as to the circumstances in which a condition is “fully stabilised” for the purposes of s 6(4)(c) of the Determination, although I note that s 6(4)(c) in fact requires that a condition “has been” fully stabilised. Paragraphs (a) and (b) of s 6(6), like the paragraphs contained in s 6(5), raise questions of fact (see Harris at [20]). Consonantly, s 6(4), being the overarching provision which employs each of the expressions to which I have referred, is exhaustively definitive as to whether a condition is “permanent” for the purposes of s 6(3)(a) of the Determination.”

12. The terms of s 6(6) of the Determination are mutually exclusive in their application – the bifurcation is between circumstances in which the person has undertaken “reasonable treatment” (as defined in s 6(7); para (a)) and those in which they have not (para (b)). As indicated above, in the latter circumstances a condition is nevertheless “fully stabilised” if one of two requirements are satisfied, the latter one being that “there is a medical or other compelling reason for the person not to undertake reasonable treatment” (s 6(6)(b)(ii)).

13. Given the focus of the parties’ submissions, it is important to note that in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen (2008) 166 FCR 428 at [39], the Full Federal Court held, construing a predecessor provision (contained in the former Sch 1 B to the Act, since replaced by the Determination) in relevantly similar terms to s 6(6)(b)(ii), that the expression “other compelling reason” employed therein gave rise to the following question:

    “[T]he appropriate question for the decision-maker to ask is, ‘Am I satisfied that there is a reason that compels … [the person in question] … not to undertake treatment?’  Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each.”

14. In my view, the Full Court’s reasoning also bears upon the application of s 6(6)(b)(ii) of the Determination. In any event, I note that the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension acknowledge the dual subjective and objective aspects of that provision, stating that the decision-maker should have regard to both “the person’s views” and “all available information on treatment options, risks etc.” respectively. 

15. It is appropriate for the Tribunal to have regard to the policy expressed in those guidelines in reviewing the respondent’s decision; however, the Tribunal is not bound by it, as the law lies in the statutory text rather than in the policy (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-70 per Bowen CJ and Deane J). In any event, in my view the relevant parts of the guidelines provide assistance in the application of s 6(6)(b)(ii) of the Determination.

    Relevant period and evidence

16. It is also apt to set out the following passages from Shields, which concern temporal aspects of qualification for DSP and their significance in evidentiary terms (at [42] – [47]):

    “It is implicit in the terms of s 39(3) of the Administration Act, which concerns circumstances where a person makes a claim for a social security payment and (only) subsequently becomes qualified for that payment within the period of 13 weeks thereafter, that a person may become qualified for DSP within 13 weeks of having made a claim for it (De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368 at [12] per Mortimer J).

    As much is also implicit from the following provisions of the Administration Act. A social security payment becomes payable to a person on the person’s start day, being the day worked out in accordance with Sch 2 to the Administration Act (ss 41, 42 of the Administration Act). That start day will, according to the general rule, be the day on which the claim is made (cl 3 of Sch 2), but in cases where the person becomes qualified within the period of 13 weeks after the day on which the claim is made, the claim is taken to be made on the first day on which the person is qualified (cl 4 of Sch 2) (see Harris at [1] per Gyles J).

    It follows that the requirement in s 6(3) of the Determination that a person’s condition causing the relevant impairment be “permanent” “is a requirement which applies as at the date the claim for a pension is lodged, or a period up to 13 weeks thereafter” (De Vries at [12]).  Accordingly, any “subsequent change in a [claimant’s] health is irrelevant to the questions which arise ... except insofar as it may cast light on the position at the relevant time” (Harris at [1]).   Therefore, evidence which came into existence after the 13 week period following the making of a claim for DSP, such as medical reports prepared after that period, is relevant only to the extent that it bears upon a claimant’s qualification for DSP during that period (Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [31], [35]).  The nature of the decision under review and the terms of the provisions to which I have referred which govern the temporal aspects of qualification for DSP evince a legislative intention the Tribunal’s consideration of such evidence be confined in such a manner (see Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [43], [99]).

    While the language of ss 6(5) and 6(6) of the Determination has prospective aspects, particularly in the questions as to whether treatment “is planned” (s 6(5)), whether any further reasonable treatment “is unlikely” to result in significant functional improvement (s 6(6)(a)) and whether significant functional improvement “is not expected” to result (s 6(6)(b)(i)), those questions are to be answered according to the time of the claim and the ensuing 13 week period, not according to an analysis based on hindsight and direct reliance on evidence of treatment and its efficacy after the relevant period. Evidence which comes into existence after the relevant period is only relevant to the extent that it is probative with respect to the claimant’s circumstances during the relevant period (Re Fanning at [33]-[35]).

    It is worthwhile to note that, while the permanency of a claimant’s condition is to be assessed for the period of 13 weeks commencing when the claim for DSP is made, that does not mean that the period preceding that period is irrelevant.  As I have indicated, the questions to be addressed in determining whether a person’s condition is “permanent” for the purposes of s 6(3) of the Determination are whether that condition “has been” fully diagnosed, fully treated and fully stabilised for the purposes of s 6(4).  Those expressions, by use of the present perfect tense, indicated by the expression “has been” preceding the relevant requirements, evince a legislative intention that a condition can properly be said to be “permanent” if each of the constituent elements of that provision has been satisfied at some indeterminate point of time in the past (cf Suntory (Aust) Pty Ltd v Federal Commissioner of Taxation (2009) 177 FCR 140 at [37] and Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 at 661), even if it precedes the relevant period.

    That much is apparent from the fact that, in considering whether a condition is permanent as at the date the claim is made, it will necessarily be the case that the condition could only have been “fully diagnosed”, “fully treated” and “fully stabilised” at a time preceding the commencement of the relevant period.”

    CONSIDERATION

17. It was not in dispute that Mr Powell had an impairment within the terms of s 94 of the Act and the Determination during the relevant period. I find, based on the reports of Dr Richard Prytula dated 30 January 2012 and other reports before the Tribunal to which I refer below, that the relevant condition from which he suffered for the purposes of the Determination that caused that impairment was an adjustment disorder with anxious and depressed mood.

18. Furthermore, it was not in dispute that Mr Powell’s condition had been “fully diagnosed by an appropriately qualified medical practitioner” during the relevant period for the purposes of s 6(4)(a) of the Determination.

19. It is convenient to set out the respondent’s contentions first. The respondent contended that Mr Powell’s condition was not “permanent” at any time during the relevant period for the purposes of s 6(3) of the Determination because had not been “fully treated” for the purposes of s 6(4)(b), nor had it been “fully stabilised” for the purposes of s 6(4)(c). In substance, the respondent contended that, as the requirements of s 6(3) are conjunctive, it followed that no impairment rating could be assigned to Mr Powells’ impairment and that, accordingly, s 94(1)(b) of the Act was not satisfied.

1. The respondent focussed particularly on his contention that Mr Powell’s condition was not “fully stabilised” at any time during the relevant period as he could not be said to have undertaken reasonable treatment (as defined in s 6(7)) for his condition and s 6(6)(b) was not otherwise satisfied. In particular, the respondent submitted that, while Mr Powell had refused to take antidepressant medication after undertaking a brief trial, there was not a “medical or other compelling reason”’ for Mr Powell not to take medication or other treatments options as recommended by medical specialists for the purposes of s 6(6)(b)(ii).

2. In the alternative, the respondent contended that Powell’s impairment did not attract an impairment rating of 20 points or more under the Impairment Tables and so s 94(1)(b) of the Act was not satisfied in any event during the relevant period. Further, the respondent contended that s 94(1)(c) was not satisfied at any time during the relevant period.

3. In contrast, Mr Powell contended in substance that during the relevant period his condition had been “fully treated” and “fully stabilised” for the purposes of s 6(4) of the Determination, including when he lodged his claim for DSP, and that he otherwise satisfied the requirements of s 94 during the qualification period.

4. The gist of Mr Powell’s case is that he was entitled to DSP notwithstanding his refusal to take antidepressant medication because he should not be required to take it or to undergo other recommended treatment, given that he preferred to confine his treatment to psychotherapy and given the reaction he had had to the anti-depressant medication he had taken in a trial.

5. At the hearing, which was conducted by telephone, Mr Powell told the Tribunal about his experiences and his current lifestyle and state of mind, and expressed strong views about his preferred course of treatment.

6. It is convenient to summarise the relevant aspects of the medical reports in evidence before the Tribunal, in chronological order.  In a report dated 30 January 2012, Dr Richard Prytula, psychiatrist, opined that, while Mr Powell’s condition had arisen during 2009 in the context of a workplace dispute, that did not appear to have been the initial cause of his psychiatric condition.  He further opined that while Mr Powell was seeing a psychologist, that was not adequate treatment, as he required referral to a consultant psychiatrist for assessment of his mood and provision of suitable medication.

7. In a report dated 31 January 2012, Dr Zeeshan Arain, general practitioner, noted planned treatment of ongoing psychology sessions and antidepressant medication. 

8. Dr Peter Graf, psychiatrist, in a report dated 14 May 2012, opined that Mr Powell “is currently in need of treatment with anti-depressant medication and ongoing counselling”. 

9. In a report dated 13 June 2012, Dr Alex Chau, general practitioner, stated that the current impact of Mr Powell’s adjustment disorder, depression and anxiety on his ability to function was expected to persist for less than two years and its effect during that time on that ability was uncertain.

10. Dr Louise Seward, consultant psychiatrist, in a report dated 20 November 2012, stated as follows:

    “He has now been off work for over twelve months but there has been little improvement in his condition. … He had a trial of antidepressant medication and had to discontinue the medication, Lexapro, because of side effects. …

    He requires ongoing treatment of his psychiatric condition specifically Major Depressive Disorder.  He should resume seeing his psychiatrist as he needs further trials of antidepressant medication. …

    …

    His psychological impairment is not permanent.  He has not had adequate treatment of his psychiatric condition and is therefore not stabilised.  I would recommend review in twelve months following appropriate treatment by his psychiatrist.” 

11. In a further report, dated 20 March 2013. Dr Prytula opined that Mr Powell’s condition is “under treated and not stable”.  He opined that it “is almost certainly likely to take from 6 to 12 months” for his condition to improve and said that “[h]is condition has been possibly made less amenable to treatment by the ongoing lack of treatment ….”

12. In a report dated 2 August 2013 prepared by Mr Powell’s treating psychiatrist, Dr Peter Graf, Dr Graft noted that Mr Powell’s condition was expected to persist for more than two years and to fluctuate.

13. In a report dated 4 November 2013, Dr Hilloi Das, consultant psychiatrist, opined that:

    “He should continue to see his current psychiatrist and there is a need for him to consider medications as well as psychotherapy.  In future, with a gradual improvement likely to occur on such treatment, he would probably be able to consider options such as retraining in a bid to prepare to eventually return to the workforce albeit, in a self-employed capacity.”

14. There were various medical certificates before the Tribunal dated from 2 March 2012 to 18 March 2015 prepared by Dr Chau certifying that Mr Powell was unfit for work, in which he stated that his symptoms were likely to show considerable improvement within two years and that his condition was temporary.

15. In a report dated 24 January 2014, Dr Stephen Stern, consultant psychiatrist, stated that Mr Powell’s “psychiatric state has stabilised at the present time”.

16. In a later report, dated 15 December 2014, Dr Graf stated that:

    “So far [Mr Powell] has been treated only with psychotherapy.

    This has resulted in gradual improvement in his condition over the last 2 ½ years.”

17. He then opined, after referring to ongoing psychotherapy as the future planned treatment, that it “is indeed my opinion that [Mr Powell] has reached maximum improvement from the future work capability point of view” and opined that Mr Powell was unemployable because of “his personality dysfunction”, involving a lack of trust in relation to employers, that dysfunction being “permanent” given, amongst other things, the lack of progress “on this front despite intensive efforts in psychotherapy over a prolonged period of time”

18. Dr Michael Duke, psychiatrist, in a report dated 21 April 2015, in recounting Mr Powell’s history, noted that:

    “There was a trial of a single anti-depressant drug being Lexapro but this actually made him suicidal.  He felt like walking out into the traffic as well as physical symptoms such as sweaty palms.  There has been no trial or any other mood elevating or stabilising drug and he refuses to take any.

    …

    Given Mr Powell’s refusal to contemplate pharmaceuticals it is rather difficult to move forward.  There are other physical methods of treatment for depression which do not involve chemicals.  These include trans-cranial magnetic stimulation, electroconvulsive therapy or vagal nerve stimulation.  This latter is an operative treatment involving the implantation of a stimulator.  … Were of any [sic] these to be tried then there is a prospect of further improvement in mental state”.

19. In recounting Mr Powell’s medical history, Dr Duke noted that “[h]e is allergic to Lexapro which gave him suicidality and sweaty palms”.

20. Dr Peter Graf, consultant psychiatrist, stated in a report dated 18 May 2015 that he had been Mr Powell’s treating psychiatrist since 8 March 2012.  He opined:

    “[Mr Powell] first presented with an Adjustment Disorder with anxious and depressed mood resulting from bullying in his former workplace.  However as time has gone one it has become clear that the trauma of this whole experience has had a major effect on his personality functioning too.  It is the latter that is not the major impediment to a successful return to work.”

21. In a later report, dated 9 June 2015, Dr Seward stated:

    “I note that I previously considered he was not stabilised.  It is two years since I have seen him.  He is not willing to take antidepressant medication.  He has continued to be treated by Dr Graf.   I would consider that his psychiatric has stabilised, taking into account the nature, course and duration of his symptoms and his treatment.

    …

    He continues to suffer from a Major Depressive Disorder, of moderate severity … his condition has worsened since my initial review over two years ago …

    …

    Mr Powell is significantly ill …

    He should continue to be treated by his treating psychiatrist, Dr Graf.  … I note that Dr Graf did attempt to put him on antidepressant medication but he discontinued the medication after two weeks.  Since that time he has refused to have antidepressant medication and prefers to manage by himself.  It is important that the issue of antidepressant medication is rediscussed with him.  I spent some time discussing the issue with him today, emphasising the importance of commencing treatment with an antidepressant medication, given his current symptoms.  I suggested to him that he may be better with an antidepressant that provides night sedation and improves his sleep pattern.  The deterioration in his condition since the initial assessment is a concern”.

    CONSIDERATION

22. I am not satisfied, based upon the evidence before the Tribunal, that Mr Powell’s psychiatric condition was permanent for the purposes of s 6(3) of the Determination at any time during the relevant period; accordingly, no impairment rating can be assigned to his impairment caused by that condition and so s 94(1)(b) was not satisfied. Accordingly, he did not qualify for DSP at any time during the relevant period. That is at least so because his condition had not been “fully stabilised” for the purposes of s 6(4) of the Determination; given the conjunctive requirements of that provision, it is unnecessary to consider whether his condition had been fully treated.

23. Based upon the medical evidence before the Tribunal and the opinions expressed as to the benefits to be gained by Mr Powell from anti-depressant medication, despite his adverse reaction to a particular kind after a trial, I am satisfied that treatment by anti-depressant medication other than that trialled by Mr Powell constituted “reasonable treatment” within the terms of s 6(7) and for the purposes of s 6(6)(b). Although Dr Duke suggested other forms of treatment as alternatives, the evidence before the Tribunal is insufficient for me to be satisfied that the other forms of treatment he proposed constituted reasonable treatment satisfying s 6(7).

24. I do not consider that there is a medical or other compelling reason for Mr Powell not to undertake pharmaceutical treatment for his condition. I have taken into account his strong personal views about the matter and the fact that they are based, at least to some extent, on his adverse reaction to the medication he tried. I have weighed his views against the medical evidence, bearing in mind that the question posed is to be assessed according to the requirement that his condition was required to be “fully stabilised” for the purposes of s 6(4) of the Determination during the relevant period. Some of the medical reports preceded that period, and some follow it.

25. However, the weight of the evidence supports the conclusion that anti-depression medication will improve his condition, while if he does not take it, then it will not improve. It is in that context that references are made in reports to the condition being “permanent” or having “stabilised” – such statements cannot be taken as bearing upon satisfaction of provisions of the Determination employing such words; rather, their import is that is condition will get no better, given his refusal to take anti-depressant medication.

26. Put in terms of the question posed by the Full Court in Jansen, I am not satisfied that there is a reason that compels Mr Powell not to undertake treatment. It may be accepted that there is a reason that compels him not to take the particular medication to which he reacted adversely, but that does not justify him abstaining from taking anti-depression medication at all, given that the weight of the medical evidence establishes that is essential for the improvement of his mental health. I infer from the medical evidence that, despite his adverse reaction to trial of a particular medication, there are alternative pharmaceutical treatments available to him. Accordingly, s 6(6)(b)(ii) of the Determination was not satisfied. I am also satisfied, based on the medical evidence, that s 6(6)(b)(i) of the Determination, being the alternative provision of s 6(6)(b), was not met.

    CONCLUSION

27. Mr Powell is entitled to choose to disregard the medical advice he has been given, leaving aside the question of whether that is a wise decision to make in the circumstances. However, his decision to eschew pharmaceutical treatment necessarily has consequences for his qualification for disability support pension. Yet in saying that, it cannot be assumed that the choice he has made is determinative with respect to his qualification for DSP, as Mr Powell must also meet the other requirements of s 94 of the Act. For the above reasons, it is unnecessary in the circumstances for the Tribunal to reach a conclusion about such matters.

28. For the above reasons, the Tribunal will affirm the decision under review.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins

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

Associate

Dated 29 September 2016

Date of hearing

1 December 2015

Date final materials received

Applicant

12 January 2016

In person

Solicitor for the Respondent

Ms A Short, Sparke Helmore