QFHY and National Disability Insurance Agency

QFHY and National Disability Insurance Agency [2023] AATA 98 (31 January 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2306
Re:QFHY
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Senior Member D. Connolly
Date:31 January 2023
Place:Sydney

The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
......................................[SGD]..................................
Senior Member D. Connolly
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports –Applicant designed and proposed therapeutic approach – effective and beneficial – whether a sex worker for exposure therapy and sexual education is a reasonable and necessary support
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
WRMF and National Disability Insurance Agency [2019] AATA 1771 (8 July 2019)
SECONDARY MATERIALS
Kendra Cherry, ‘Gynophobia: The Fear of Women’, Verywellmind (online) (2022) < Wotton, Sex workers who provide services to clients with disability in New South Wales, Australia (Master’s Thesis, University of Sydney, 2016)
Society of Clinical Psychology, Diagnosis: Specific Phobias; Treatment: Exposure Therapies for Specific Phobias (online) <
REASONS FOR DECISION
Senior Member D. Connolly
31 January 2023
BACKGROUND TO REVIEW

The Applicant is a 36-year-old man who became a participant of the National Disability Insurance Scheme (the NDIS) in 2018 on the basis of Autism Spectrum Disorder (ASD) (level 2) and a mild intellectual disability.[1] He also has a history of trauma and exhibits symptoms consistent with Post Traumatic Stress Disorder (PTSD).[2] He currently resides near Brisbane.[3]
[1] Tender Bundle (‘TB’) A6, p 2.
[2] T3, p 79.
[3] TB A6, p 12.
Consistently throughout his engagement with the National Disability Insurance Agency (the Agency) the Applicant has made it clear he wishes to build his social skills to improve his participation in the community. One of the Applicant’s specific goals is to develop interpersonal skills that might assist him to develop a romantic heterosexual relationship.[4] He faces challenges in socialising with women, associated with ASD, and can become highly anxious.[5] He has designed a therapeutic approach, the Pairing Intimacy Sexual Education Guide (the Guide), a combination of cognitive behaviour therapy (CBT) and exposure therapy, to address these challenges.[6] Part of his approach is to engage the services of a sex worker to practise the social and communication skills taught to him by his therapist, along with a sexual component.[7] He has stated that he does not expect the sex worker to provide any therapeutic intervention; nor does he expect to form a romantic connection with the sex worker.[8]
[4] Ibid, p 4.
[5] TB A5, p 4.
[6] TB A6.
[7] Ibid, pp 9-17.
[8] See TB A6 and TB A7, p 1.
While the Applicant initially sought funding for four hours per month for a sex worker[9], at the hearing and in his closing submissions he has confirmed that he now seeks three hours per month.[10] He also seeks funding for a support worker to drive him to and from the sessions and to wait for him while he is with the sex worker.
[9] T2, p 73.
[10] Closing Submission, filed by the Applicant on 10 December 2022, p 5.
On 18 March 2021 the internal reviewer concluded four hours per month for a sex worker was not a reasonable and necessary support.[11] Instead the internal reviewer funded 15 hours for a sex therapist, 12 hours for an occupational therapist, 12 hours for a speech therapist and 50 hours for relationship capacity building support. As the internal reviewer was not satisfied funding for a sex worker was a reasonable and necessary support, she did not agree to fund the support worker to drive and accompany the Applicant for the purpose.
[11] T2, p 73.
On 6 April 2021 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal), pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act), for review of the internal reviewer’s decision.[12]
LEGISLATIVE FRAMEWORK
[12] T1, p 1.
The NDIS statutory framework
The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. The Applicant has drawn particular attention to subsection 3(e) which states one the objects of the NDIS Act is to enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports. Subsections 4(8) and (9) also emphasise that people with disability have the same rights as other members of Australian society to determine their own best interests, including the right to exercise choice and control, and that people with disability should be supported so their capacity to exercise choice and control is maximised.
This tenet is essentially repeated at section 17A of the NDIS Act, which sets out the principles relating to the participation of people with disability and includes that people with disability will be supported in their dealings with the Agency so that their capacity to exercise choice and control is maximised, and that the NDIS is to respect the interests of people with disability in exercising choice and control about matters that affect them.
The Applicant also seeks to rely on the references to innovation in the NDIS Act to support his proposal, at paragraph 3(1)(g) and subsection 4(15).
A participant’s NDIS plan must include a statement of participant supports, approved in accordance with the NDIS Act, and any rules made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants Rules).[13]
[13] National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) ss 33(2) and (5).
Subsection 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the statement of participant supports under subsection 33(2), must have regard to several factors including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied the supports are reasonable and necessary.
Subsection 34(1) of the NDIS Act provides, with respect to reasonable and necessary supports, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The term ‘reasonable and necessary support’ is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) Mortimer J observed, at [91], with respect to the term:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied criteria under subsection 34(1) are met in respect of a requested support.
The Supports for Participants Rules, made pursuant to subsection 35(1) of the NDIS Act, provide further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Paragraph 33(5)(d) requires that the CEO must apply any rules made for the purposes of section 35. Pursuant to section 209 of the NDIS Act, the rules are a legislative instrument and are therefore binding on the Tribunal.
The Tribunal notes the observations of Mortimer J in McGarrigle at [43] in part as follows:
The [Supports for Participants Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded...
The relevant rules in this case are as follows:
3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Issue
The issue to be decided in this case is whether the funding for a sex worker (and associated support worker costs) is a reasonable and necessary support pursuant to subsection 34(1) of the NDIS Act. In deciding whether factors in subsection 34(1) of the NDIS Act are satisfied, I must also consider whether the relevant rules, set out above, are met, as required by paragraph 33(5)(d) of the NDIS Act.
CONSIDERATION OF the EVIDENCE
Material before the Tribunal
The evidence before the Tribunal includes the Applicant’s NDIS plans approved on 17 April 2020, 11 November 2020 and 18 March 2021 filed by the Respondent and the Tender Bundle filed by the Respondent on 8 November 2022.
The Tender Bundle comprises seven statements by the Applicant, including documents describing in detail the Guide, a letter and a review of the Guide by Dr Y, the Applicant’s psychologist, a report prepared by Mr A, a general and psychosexual counsellor, a letter from Ms W, psychologist, and a Master’s thesis titled ‘Sex workers who provide services to clients with disability in New South Wales, Australia’ by Ms Rachel Wotton. The Applicant has also filed two submissions in response to submissions from the Respondent, and an email from Professor Tony Attwood, psychologist.
The Respondent’s material includes documents provided to the Tribunal by the Applicant, as required by section 37 of the Administrative Appeals Tribunal Act1975 (Cth) (the T Documents), an expert report by Dr R, a consultant forensic psychiatrist who undertook an independent assessment at the Respondent’s request, along with summonsed material including clinical notes made by Dr Y. The Respondent has also provided a statement of facts, issues and contentions.
The Tribunal has also been provided with a report from Dr Y dated 26 July 2021, filed by the Applicant on 29 July 2021.
A hearing was held by video conference on 15 November 2022. The Applicant (accompanied by his support person, Mr A) and Dr R gave oral evidence at the hearing.
The supports sought by the Applicant
The Applicant has developed a therapeutic approach, the Guide, a combination of CBT and exposure therapy, to address fears and challenges he faces in communicating with and relating to women. He has provided various statements and documents describing the support he seeks and explaining its rationale. In a statement dated 12 May 2020 the Applicant described the two therapies, his social deficits associated with autism, his cognitive deficits, his psychosocial issues, and what he hopes to achieve from his approach.[14]
[14] TB A1.
The Applicant’s proposal involves four steps. He summarised his approach in an email to Professor Tony Attwood, psychologist, in part as follows:
…I have come up with the therapy that combines cognitive behaviour therapy and exposure therapy. My regular clinical psychologist calls the exposure therapy component in vivo and graded exposure based on the 4 activities I have come up with.
The unconventional part is I would be using a qualified sex worker at a registered Brothel as my test subject.
The cognitive behaviour therapy would be done with the clinical psychologist and both psychologist and sex worker would be working in their respective industries[.] The exposure therapy would be conducted by the sex worker…
The sex worker would be representing your everyday woman in form of role playing, in activities that [I think are the] basic fundamentals of interaction and courting the opposite sex.
1.Learning to introduce oneself and practice engaging in small talk
2.Practicing asking a woman out for coffee or lunch and simulating having coffee or having lunch
3.Practice asking a woman out for dinner and simulating said activity
4.sexual component…[15]
[15] Email from the Applicant to Professor Tony Attwood, dated 26 October 2021.
In response Professor Attwood stated:
Thanks so much for your intriguing email and your unconventional therapy for autistic men has the potential to be of considerable psychological benefit to autistic individuals. I think it is a very good idea to include in your suggestions a clinical psychologist who can review not only the CBT but also a range of issues related to such therapy.
Due to my age and clinical commitments, I am not able to provide guidance with regard to your therapy, however, I would be very interested in the outcomes and any publications.[16]
[16] Email from Professor Tony Attwood to the Applicant, dated 2 November 2021.
At the hearing the Applicant confirmed that he is seeking three hours with the sex worker, as one three-hour session, and two hours for the support worker for transport to and from the destination (five hours in total).[17] He already has funding for his psychologist for CBT, whom he sees twice a month. He is seeking the five hours once a month for ten months.[18]
[17] Transcript of Proceedings (15 November 2022), p 29.
[18] Ibid.
The Applicant admits to having difficulties with comprehending social cues, small talk, reading body language and emotions, and building and maintaining close friendships and relationships.[19] He has trouble regulating his emotions and adapting to change.[20] He is a concrete thinker and has comprehension issues.[21] He has PTSD from being bullied and rejected and can experience mild paranoia when stressed.[22] He lacks confidence.[23] His anxiety can present as aggression.[24] He has had only one sexual experience, when he was 18.[25] He does not suffer from any sexual dysfunction.[26]
[19] TB A1, p 7.
[20] Ibid.
[21] Ibid.
[22] Ibid, p 8.
[23] Ibid.
[24] Ibid.
[25] Closing Submission, filed by the Applicant on 10 December 2022, p 13.
[26] TB A10, p 4.
In statements the Applicant explained that he is a visual and hands-on learner and a moderate to poor auditory learner.[27] He questions the efficacy of the Respondent’s approach – that he work with four different therapists: a sex therapist, an occupational therapist, a speech therapist and an improved relationships capacity building provider.[28] He questions how, given his learning impairments, he is supposed to remember what those therapists have taught him and understand what they are teaching without any practical education or hands on experience.[29]
[27] TB A5, p 12 and TB A10, Appendix 2, p 12.
[28] Closing Submission, filed by the Applicant on 10 December 2022, pp 13-15.
[29] TB R1, p 13.
In his written submissions the Applicant referred to the case WRMF and National Disability Insurance Agency [2019] AATA 1771 and provided various excerpts from the Tribunal’s reasons for decision and the subsequent judgment by the Full Court of the Federal Court of Australia (together, WRMF).[30] The facts in this case are set out and discussed in detail under my consideration of the evidence. In one of his statements the Applicant said:
I have something in common with this woman that is she has a disability and I have a disability that makes it very difficult to meet love interest[s] in the community[.] She has [multiple sclerosis] (MS) [a] debilitating condition that impacts on the mental and physical state of her being[.] This would be a huge burden on a partner who has to look after her so that reduces her ability to meet people, because 95% of people don’t want the burden of looking after another adult, the other 5% who would be caring are like trying to find a needle in a haystack[.]
As for myself well my condition speaks for itself[,] autism spectrum disorder[,] a complex neurological/developmental disorder [the] main component of that is compromised ability[,] communication and interaction with other human beings[.] That said this condition also makes it very difficult to meet partners in the community and as for the sex, am I expected to make my partner pleasure herself like “hey babe so my occupational therapist taught how to pleasure myself like this” and my sex therapist if you do that it maximizes your orgasm “hun I want you to have sex with me”, “I’m too scare[d] to I don’t know what to do I have had no practical experience”.[31]
[30] National Disability Insurance Agency v WRMF [2020] FCAFC 79.
[31] A10, Appendix 2, p 14.
Dr Y’s reports
The T Documents include a report from Dr Y dated 18 November 2019 confirming the Applicant’s diagnosis of ASD (level 2), a mild intellectual disability and symptoms of PTSD associated with a history of trauma. In her view he has substantially reduced functional capacity in social interaction and experiences extreme anxiety when engaging with other people due to hypervigilance for potential negative feedback.[32] She advised that treatment had explored different ways for him to increase his social interaction. She recommended further psychological support to address the Applicant’s difficulties.[33]
[32] T3, p 79.
[33] T3, p 81.

Dr Y also provided a report dated 26 July 2021 in which she set out the following information.[34] One of the Applicant’s goals is to have a romantic partner. He has reported extreme anxiety regarding his perceived ability to approach a potential partner or develop a romantic relationship. Social isolation deprives him of opportunities to casually meet a potential partner. He has reported that his anxiety substantially increases when he is around women. The contested supports are requested to help him address his anxiety. His problem-solving skills are vastly improved when he is provided detailed explanation and context. He learns best by demonstration and guidance. He has proposed using sex workers to assist him to practise the skills taught in therapy. He does not have the capacity to apply his knowledge about sex in a real-world situation and seeks support to implement those skills in ‘real life’. Dr Y opines that exposure therapy will provide the Applicant with a more practical approach, which will most likely support his learning capacity, result in faster gains and thus reduce his need for therapy regarding this goal.
[34] Report from Dr Y, filed by the Applicant on 29 July 2021.
With respect to the exposure component of the approach, Dr Y acknowledged that the Applicant could engage in the theory component with his counsellor and then implement the exposure component in his own community. However he reported that he has attempted this with no benefit. In her view the exposure component is necessary as the Applicant struggles to transfer theoretical knowledge into practical application without guidance “in the moment”[35]. He cannot practise his sex-related knowledge and skills with his health team because of the ethical boundaries. Thus he proposes using sex workers to practise his skills. He wishes to build his confidence in engaging with females, develop his skills in dating and then progress to intimacy with a female in a graded exposure model.
[35] Ibid, p 3.
In a letter dated 20 April 2022 Dr Y explained that she is writing to support the Applicant to explain the purpose of his proposal, specifically referencing the recent report by Dr R, and provided the following information.[36] She indicated the Applicant is representing himself for approval to engage in “his own therapy”[37]. She confirmed the Applicant wishes to engage the services of a sex worker to practise his social and communication skills taught to him by his therapist but does not expect the sex worker to provide therapeutic intervention. Nor does he expect to establish a romantic connection with the sex worker. She accepted the proposed therapy does not have any outcome measures. She agreed that good practice involves monitoring the effectiveness of any intervention and so the Applicant would be encouraged to utilise outcome measures with his therapist by self-reporting.[38]
[36] TB A6.
[37] Ibid.
[38] Ibid.
Ms W’s letter
The Applicant provided a letter[39] from Ms W, psychologist, dated 25 April 2022, prepared at his request to provide clarification on information in Dr R’s report. Ms W also described the Applicant’s approach as “his own therapy (exposure-based intervention)”[40]. She confirmed the Applicant had attended 11 sessions with the health care provider for whom she worked, focusing on implementing strategies to cope with anxiety associated with his review application. She stated the Applicant does not intend for the sex worker to replace the role of his psychologist, medical practitioner or psychiatrist. Rather his therapy program entails engagement in exposure-based skills development with a sex worker in conjunction with ongoing regular psychotherapy with a psychologist and/or psychiatrist. The purpose of the engagement with the sex worker is to provide him with “the opportunity to practice and engage in social and sexual interactions to help increase his confidence and be provided the opportunity to learn coping skills to manage his anxiety through invitro exposure.”[41] Ms W stated the engagement with the sex worker will also provide an opportunity to practise the social and anxiety management skills learnt in therapy with a psychologist. She stated he does not expect to develop a romantic connection with the sex worker.
[39] TB A7.
[40] Ibid, p 1.
[41] Ibid.
Ms Rachel Wotton’s Master’s thesis
In support of his application the Applicant has provided a thesis[42] titled ‘Sex workers who provide services to clients with disability in New South Wales, Australia’, by Ms Rachel Wotton. The study involved sex workers completing a questionnaire, answering questions relating to the location, frequency, type and range of, and barriers to providing, sexual services to clients with disability. The stated aim of the thesis was to identify the nature and extent of sexual services provided to clients with disability. Her findings confirm that sex workers in New South Wales (NSW) provide a wide range of sexual services to clients with disability, in a range of locations. The disabilities span physical, cognitive, acquired and congenital disabilities. The study records that clients with autism and anxiety disorders use sexual services in NSW.
[42] TB A10, Appendix 1.
Ms Wotton examined the motivating factors for clients with disability which she stated are often the same as the general client population. She cited another study reporting they include “positive influences on quality of life, self-esteem and confidence that result from fulfilment of a range of emotional, psychological, sexual and social needs.”[43] She noted other motivating factors include “learning about their sexual capacities after a significant injury or illness, increasing their experience, knowledge and acceptance about their own bodies, gaining confidence and social skills before embarking on the dating scene, finally having the opportunity to experience the touch of another in a sensual way and lose their virginity.”[44] However Ms Wotton’s thesis did not indicate that those clients were accessing the services as a form of exposure therapy. Ms Wotton acknowledged in her thesis that there is a significant gap in the academic literature specifically looking at the use of sexual services by clients with disability and how sex workers view those clients.
[43] Ibid, p92.
[44] Ibid.
Dr R’s evidence
Dr R is a consultant forensic psychiatrist, an accredited fellow of the Royal Australian and New Zealand College of Psychiatrists (RANZCP), a registered medical practitioner and has qualifications in forensic behavioural science.[45] She has a private practice and has worked as a complex care and recovery psychiatrist.[46]
[45] TB R2, p 2.
[46] Ibid.
In preparation for the independent assessment Dr R was provided with the Applicant’s statements and written descriptions of his therapeutic approach, and clinical material including reports by Dr Y and a former treating psychologist, Dr G.
Dr R assessed the Applicant by video conference for 90 minutes and reported as follows.[47] He displayed well-organised thought processes, normal in rate. He was expansive, providing lengthy responses to questions. He reported his mood as frustrated. She formed the view he conveyed mild irritability. There was no evidence of perceptual disturbance such as hallucinations or symptoms of dissociation. In her view his cognitive function in general “demonstrated an adequate level of attention, concentration, memory and comprehension through the assessment and he was able to relay a cogent history.”[48] The Applicant reported to Dr R a history of being bullied at school. His asthma condition impacted on his attendance at school. On leaving school he worked in various jobs, as a labourer. Dr R agreed with the diagnoses of autism and generalised anxiety disorder (GAD) and formed the view his GAD may be exacerbated in undertaking interactions with women.
[47] TB R2.
[48] TB R2, p 3.
With respect to the Applicant’s proposal to use a sex worker for exposure therapy, Dr R stated the Applicant provides
a rather hopeful but ultimately simplistic theory on what therapeutic value sex workers can provide in psychiatric care. Firstly, they are not trained therapists and would not necessarily be able to work with any acute anxiety [the Applicant] would experience in the session. Secondly, he has voiced a clear desire to form relationships and intimacy, (“support/education of pairing, intimacy and sexual relations with another person”) which are at best artificially generated between a sex worker and customer. There is no sustained relationship and [the Applicant] learns nothing of his subjective desirability or ability to connect with someone and how to read cues of desire and/or rejection.[49]
[49] TB R2, p 10.
Dr R noted the proposal does not have any outcome measures and his application
does nothing to address the potential harms caused by establishing and then abandoning a brief, artificially intimate ‘relationship,’ any ‘transference’ (which he describes inexactly) to be experienced by [the Applicant], and the ultimate issue that his connecting with women in the real world cannot be addressed by this modality, which is no validation to his worth or desirability.[50]
[50] Ibid, p 11.
Having regard to his request for a sex worker for the purposes of theoretical application to practise dialogue, and ultimately sexual intercourse, and his proposed step-by-step plan for the four[51] meetings, Dr R commented that sex workers are not trained therapy providers, despite the Applicant’s claims they would have the expertise of the four professionals suggested by the Agency. She formed the view his proposal did not meet the standard of care in managing or treating either condition, neither ASD nor GAD. She cited Ian Freckelton QC who stated, “there are important differences between the provision of surrogate partner therapy (for a price) by well-meaning, unqualified providers, and more traditional therapy by registered health practitioners…”.[52]
[51] At the time of Dr R’s report, the Applicant was proposing four sessions with the sex worker, and 12 hours for a support worker to drive him to and from sessions: TB R2, p 8.
[52] Ibid, p 12.
Dr R discussed other therapies, such as psychodrama and stated:
psychodrama is an evidence-based role-play that is undertaken by trained clinicians that assists patients, through role-play, to gain insight into their lives through actions rather than words alone. Evidence for psychodrama suggests it can lead to significant improvements in social skills and overall life satisfaction. The duration and specific goals of such therapy for [the Applicant) would need to be discussed with the appropriately trained clinicians.[53]
[53] Ibid.
Dr R took into account the Applicant’s preference for hands-on learning but formed the view his anxiety would be better treated with CBT and medication. She noted he had trialled an antidepressant with little effect but formed the view he should trial other medications.
Dr R also reported:
while there is no RANZCP guideline for autism, social skills training is a well-established intervention for individuals with ASD, to help address social deficits. There is no appreciable difference in effect between face-to-face or technological platform delivered training. This training is usually delivered by an occupational therapist or speech pathologist. In some clinics with specialty in ASD, they have psychologists addressing social skills. Referral to such a service may uncover the duration of suggested therapy after specialised assessment.[54]
[54] TB R2, pp 12-13.
In her oral evidence Dr R explained, with respect to a concern raised by the Applicant that she had not spent sufficient time with him, that 90 minutes is not an unusual amount of time for an assessment of this nature.[55] She had seen other material prior to the assessment.[56] She believed the Applicant was able to express himself in a way that made him understood.[57]
[55] Transcript of Proceedings (15 November 2022), p 21.
[56] Ibid, p 22.
[57] Ibid.
Dr R explained that she understood the Applicant is seeking graded interaction with a sex worker, that initially includes verbal communication and culminating in sexual activity (as well as the support worker transporting him to and from the service).[58] She confirmed that she was not aware of any recognition of this approach in the literature.[59] In her view she does not support it as an efficacious treatment.[60] She stated:
the proposal is rather simplistic in terms of what therapeutic intervention takes place between the Applicant and the worker. They’re not a trained therapist or treatment provider. And also in terms of transference and countertransference, which is essentially what we work with in therapeutic spaces, so that’s a redirection of feelings about a specific person onto someone, I think that at best I guess they’re performatively generated or artificially generated between a paid service provider and [the Applicant], and I don’t believe that will teach him anything about organic social cues, his desirability and how to manage situations leading on from those social interactions.[61]
[58] Ibid.
[59] Ibid.
[60] Ibid.
[61] Transcript of Proceedings (15 November 2022), p 23.
When asked if there is any prospect of harm if the approach is engaged, Dr R stated:
when you introduce such an artificial relationship and then eventually remove it, that rejection can be experienced quite significantly if a hope and attachment have been placed on the interaction. And it further probably - well, it possibly could further widen the chasm between [the Applicant’s] understanding of his desirability and how to interact in the real world, so to speak, with women and how they respond to his cues. If he displays behaviour or language and the paid worker responds positively, that might reinforce that that language or behaviour is appropriate. It may very well be the case that it is not and a woman acting of agency and autonomy would respond to it completely differently.[62]
[62] Ibid.
Dr R explained why she preferred pharmacological and psychological behavioural interventions. She noted the Applicant had engaged in
a brief course of CBT, which he explained helped him to be able to now attend a cafe and order something without experiencing that heightened anxiety. So, again a cognitive behavioural approach is first line as per our guidelines for any anxiety or even depressive illness, as well as SSRI or SNRI basic medications indicated for those conditions. If you’re able to control some of the symptoms of anxiety, it then makes someone more able to participate in psychological behavioural therapies.”[63]
[63] Ibid
With respect to Ms Wotton’s Master’s thesis, Dr R confirmed she had read it and stated that nothing in the thesis had caused her to change her view.[64] She formed the view the thesis had been written from an ethical or humanitarian perspective rather than as a clinical or evidence-based document.[65] Dr R confirmed she was not aware of any sex workers with training in CBT or other psychological treatments.[66]
[64] Ibid, p 24.
[65] Ibid.
[66] Ibid.
Dr R confirmed she is not an expert in autism, but she has expertise in forensic psychiatry.[67] She has not been involved in any trials with disabled people and sex workers.[68]
[67] Ibid.
[68] Ibid.
Regarding evidence-based role play, such as psychodrama, she stated it is always undertaken by a trained clinician, to assist people to gain insight into their lives through actions, rather than just words.[69] She stated psychodrama is often done by allied mental health staff. She doubted it would involve sexual activity, as this would be unethical and probably illegal depending on their code of conduct.[70] She stated, to engage in any role play therapy, there needs to be established a frame of safety, a therapeutic relationship, and a space where anxieties, fears, and desires can be explored.[71] She stated she does not believe it would ever take place with an untrained person, in three[72] sessions, as suggested in the Applicant’s proposal.[73]
[69] Transcript of Proceedings (15 November 2022), p 25.
[70] Ibid.
[71] Ibid.
[72] Note that the Applicant’s proposal, as addressed by Dr R in her report, was for four sessions, not three.
[73] Transcript of Proceedings (15 November 2022), p 25.
Dr R described therapeutic approaches that result in patients finding “a more stable internal sense of acceptability or self-acceptability which they can then put out into the world. I don’t see that being achieved in the way [the Applicant] proposes the therapy to run.”[74]
[74] Ibid, p 26.
Mr A’s report
In support of his request the Applicant provided a report prepared by Mr A, a general and psychosexual counsellor, who attended the hearing with the Applicant as a support person and told the Tribunal he had provided the Applicant with 15 counselling sessions using the funding provided in the Applicant’s plan dated 18 March 2021.[75]
[75] Ibid, p 38.
In his report dated April 2022[76], provided after Dr R’s assessment, Mr A opined the Applicant exhibits some symptoms of gynophobia and he associated that with his not being able to develop and enjoy a romantic heterosexual relationship. He claimed the Applicant developed the Guide with Dr Y, as a blueprint for achieving this goal. Mr A stated:
whilst it is in the public domain that other NDIS participants have been approved to have funding for sexual services as part of their Plans, [the Applicant] has convinced the writer that this is not the case for him. What he seeks is a service frequently offered by sex workers, known as the ‘girlfriend (GF) experience’. He considers (and again the writer concurs), that this would be his best option for learning to understand ‘how women work’ in the safe and legislatively controlled environment of a legal brothel.[77]
[76] TB A6.
[77] TB A6, p 6.
Mr A stated he provided psychosexual counselling to the Applicant, both face-to-face and by Zoom sessions, and education and advice around consent, sexual responses and sexual physiology. In his view the funding could arguably have been better spent supporting the Applicant to seek the girlfriend experience, rather than talking about it.
Mr A commented that the Respondent was not able to find an expert on ASD to provide a report and so Dr R was asked to provide an independent expert opinion. He noted summonses for material were issued, presumably to assist Dr R, which the Applicant objected to. He claimed the Applicant had reported to him there had been fallout from the summonses as none of the other professionals working with him regarding this matter would agree to provide him with further written reports. He claimed the Applicant reported some factual errors in Dr R’s report and that the Applicant was of the view the duration of the consultation was insufficient to build a rapport and express himself adequately.
Mr A took issue with Dr R’s view that the Applicant’s approach is hopeful but ultimately simplistic. From his perspective as a general and psychosexual counsellor, he is aware that “many individuals who visit sex workers are purchasing social, rather than sexual intercourse. To suggest that sex workers ‘are not trained therapists’ is also somewhat disingenuous of Dr R.”[78] He believes they would quickly learn these skills ‘on the job’, but he acknowledges not all sex workers would have the emotional intelligence to provide this service in accordance with the Applicant’s needs and ideals and in a way that ensures his wellbeing.[79]
[78] TB A6, p 14.
[79] R6 page 14
Regarding the benefits of other therapies, Mr A stated that the Applicant has tried CBT and other therapies and they have assisted him to some extent. He later claimed there has been little measurable outcome from those therapies, and the Applicant’s approach “may well both allow him to learn about intimacy with women and overcome his fear of them, with the ultimate goal of being able to sustain a romantic relationship.”[80]
[80] TB A6, p 16.

Mr A stated that the Applicant cites WRMF as “mirroring his request for support”[81] and presumes the therapy the Applicant seeks meets the standard of care in WRMF. In the Applicant’s view WRMF bears strong similarities to his case.
[81] Ibid, p 8.
Mr A raised concerns about interactions between the Applicant and the Agency during the internal review process that led to a misunderstanding about the supports being sought.[82] I am satisfied those concerns have been addressed by the review process, as the Applicant has now been given the opportunity to clarify the nature of the supports sought and why the supports are reasonable and necessary.
[82] See TB A6, pp 4-5.
The Applicant’s oral evidence
At a directions hearing the Applicant raised concerns about having to give oral evidence. These were discussed with him at that hearing, and again at the final hearing. I reassured him that the hearing would be conducted informally, that he could ask for breaks and signal to me if his anxiety was interfering with his capacity to give oral evidence. He indicated to me at the end of the hearing that, while a little nervous, he was able to express himself. Having considered his oral evidence and engagement during the final hearing, I am satisfied the Applicant had a meaningful opportunity to give his oral evidence and present arguments as to why he believes the supports sought are reasonable and necessary.
At the hearing the Applicant told me that he has proposed four activities, graded in nature from the least difficult to the most difficult, coinciding with greater exposure to a woman.[83] He explained that he would be doing the psychological therapy with the psychologist and the exposure therapy would be done with the sex worker.[84]
[83] Transcript of Proceedings (15 November 2022), p 17.
[84] Ibid.
The Applicant explained that the sex worker does not need to be a therapist,
she just needs to act like a woman, a general woman that I would meet in any other place where adults meet. So, that I can practice to be able to, firstly, interact with them, engage and practise small talk, learn about appropriate personal space, learn about appropriate eye contact, and be sensitised to how women act and speak in various manners. I’m not suggesting that the sex worker is a more appropriate person than the therapist themselves. I’m suggesting that to me, it would make more sense if I want to become more confident in interacting with a woman of the opposite sex, I need to be exposed to a woman who can dress, act and speak differently [as] opposed to a therapist.[85]
[85] Transcript of Proceedings (15 November 2022), pp 17-18.
The Applicant explained that he has previously had CBT with Dr G, psychologist, which allowed him to eventually go into the community and not be in fear of being bullied or subjected to abuse by the general public.[86] He explained having CBT would help him build confidence.[87]
[86] Ibid, p 18.
[87] Ibid.
The Applicant told me that he did not think the 90 minute video consultation with Dr R was anything more than “just a background check and a psych evaluation”[88]. He noted there were inaccuracies and irrelevancies in Dr R’s report.
[88] Ibid, p 19.
The Applicant told me that he has not been using sexual services to date. He visited a brothel
…to experiment to see whether my anxiety would be provoked, which it [was], and I conducted a business proposition or appointment with the brothel manager…Being in a brothel, for one, that’s kind of nerve-racking but at the same time even though I was suffering from anxiety I was still able to fully function and ask the questions that I desired to ask.[89]
[89] Ibid, pp 29-30.
The Applicant confirmed he has not located a sex worker who has disability training but has found a sex worker who has autism.[90]
[90] Ibid, p 30.
With respect to the effective and beneficial requirement, I explained that I need to have regard to current good practice, and that it is not enough that a support might be helpful.[91] The Applicant stated that as far as he is aware there is no other form of like therapy in Australia, but his proposal could be ground-breaking.[92] He is not concerned about suffering any harm.[93] He is aware of transference.[94] He does not believe therapists can provide everything he needs because, in the general public, not every woman dresses, speaks and acts like a therapist.[95] He suspects it would put a lot of pressure on the therapist if transference were to occur.[96] He understands that having an intimate relationship with a therapist is not permitted whereas “if transference occurred with the sex worker, after that therapy is completed, it wouldn’t matter because in that regard there’s no ethical guidelines that a sex worker has to walk. To a degree, there’s ethical guidelines that a sex worker has to follow, but not in a therapeutic sense.”[97]
[91] Ibid, p31.
[92] Transcript of Proceedings (15 November 2022), p 31.
[93] Ibid.
[94] Ibid.
[95] Ibid.
[96] Ibid.
[97] Ibid, pp 30-31.
The Applicant explained he is not suggesting the sex worker provide therapeutic support, only assist with the exposure therapy by role play.[98] He stated “I just want some practical experience with a woman and I feel that the sex workers are most appropriate considering that all she has to do is act like herself, like a woman, like every other woman that is here in Australia.”[99]
[98] Ibid, p 32.
[99] Ibid.
With respect to the Applicant’s reference to WRMF, I explained that I might find the facts in that case were different to the Applicant’s circumstances.[100] I also noted WRMF was already using sexual services when her matter was reviewed, and that she demonstrated to the Tribunal that the service was effective and beneficial, and that her sex worker had experience in dealing with physical disabilities. I also noted WRMF wanted the support for the purpose of sexual release, not exposure therapy. I explained that I might distinguish the Applicant’s case from WRMF. The Applicant stated that he understood the facts in that case.[101] However he has level 2 autism, a condition which makes it difficult to meet and interact with potential partners, which is the same as WRMF’s situation.[102] He referred to articles indicating the benefits for disabled people from interactions with sex workers.[103]
[100] Ibid.
[101] Ibid.
[102] Transcript of Proceedings (15 November 2022), pp 32-33.
[103] Ibid.
I raised with the Applicant Dr R’s concern that a paid sex worker may respond positively to the Applicant, compared with a woman with agency and autonomy, and this might be misleading for the Applicant.[104] I also raised the concern that paid sex workers may be accommodating and positive in their responses to the Applicant but this might not reflect a real life situation. I indicated I might find that this ultimately will not be effective and beneficial for the Applicant. The Applicant stated in part that:
not only will the sex worker act in a positive way, but there are certain situations that I am being rejected from the sex worker. That’s the way that I can be exposed in various ways to being rejected and I can learn ways for myself on how to cope with those rejections…That being said, for an autistic person, one of the greatest flaws that we have or greatest difficulties that we have is that we’re not impressed with situations - we’re happy with situations that are predictable. Where we don’t function terribly well is where the situations are unpredictable. What I’m suggesting with my therapy proposal is that providing ways of seeing situations that are unpredictable and being able to learn to address them appropriately…I’m aware of some of the flaws of my autism, I’m trying to remedy that through the therapy proposal. Part of that is my anxiety. Another part of it is the unpredictable nature of socialising and being in front of it and in person in the moment allows me to learn in a practical way. Simply by talking to me I don’t know how it - how I’m going to learn it without seeing it…I’m a visual learner. I learn by doing things. I’m not academically strong…my strengths in learning are in practical ways...[105]
[104] Ibid, p 33.
[105] Ibid, pp 33-34.
The Applicant confirmed he has not considered psychodrama, an option raised by Dr R.[106] He does not think he needs the ‘safety net’ this form of role play provides. In his view he does not think the sex worker needs to be a therapist. He believes women can sense when a male is interacting with them as to whether they are nervous.[107]
[106] Ibid, p 34.
[107] Ibid, p34.
The Applicant noted that the objects and principles of the NDIS Act refer to innovative ideas.[108] He notes his approach is innovative so there is not going to be literature or research as to whether it is good practice. He stated “no-one knows what this is able to do because it’s a brand new idea. It’s a straightforward idea. And it includes two therapies that have been scientifically proven. I have attempted to establish on how to use these therapies that fits my needs.”[109]
[108] Ibid, p 35.
[109] Transcript of Proceedings, pp 35-36.
The Applicant explained that Dr Y’s reference to graded exposure is referred to in the literature.[110] He stated it is “the same line of exposure therapy to help address the fear of spiders.”[111] In further describing his four step approach the Applicant stated in part:
…the fourth activity would be the sexual component, which makes more sense with the sex worker than a sex therapist[112], considering I’ve only had sex once in my life. That was 17 years ago. I don’t know what problems I have when it comes to sex. I need to be able to do it in order to find out what problems I have with sex.…I said to [the sex therapist], “Do you help autistic people have sex?” She said, “No. We talk about different types of problems such as erectile dysfunction, premature ejaculation and those types of problems.[113]
[110] Ibid, p 36.
[111] Page 36
[112] The Applicant’s response to the Respondent’s Statement of Facts, Issues and Contentions dated 29 July 2022 includes a statement that he saw a sex therapist before he consulted Mr A: TB A10, Appendix 2, p 2.
[113] Transcript of Proceedings, p 37.
He explained that the sex therapist was useless to him because she deals with problems such as erectile dysfunction and premature ejaculation, and he does not have those problems.[114] He refuted Dr R’s conclusion that his approach may cause harm, because he is not using the sex worker for mental health support and he has a psychologist for that purpose.[115] In his view the Respondent’s plan to fund four different therapists is not practical.[116] Given his speech and processing delays he does not believe he will remember what he has been taught when he is in a practical situation.[117]
[114] Ibid.
[115] Ibid.
[116] Ibid.
[117] Ibid.
Evidence filed by the Applicant after the final hearing
After the final hearing, but before closing submissions were filed, the Applicant provided further evidence, articles on the use of exposure therapies for specific phobias[118] and therapies for treating gynophobia[119].
[118] Society of Clinical Psychology, Diagnosis: Specific Phobias; Treatment: Exposure Therapies for Specific Phobias (online) <
[119] Kendra Cherry, ‘Gynophobia: The Fear of Women’, Verywellmind (online) (2022) <
The article on the use of exposure therapies refers to phobias such as fear of spiders, animals, flying, water, heights and claustrophobia. In his email the Applicant stated “replace phobia of spiders, animals, flying etc with women and based on said literature and evidence I believe it can still work.”[120]
[120] Applicant’s email to the Tribunal dated 18 November 2022.
The article on gynophobia suggested treatments such as exposure therapy, CBT and medication. With respect to the use of exposure therapy it was recommended
the process may start with being prompted to think about women or by looking at images of women. During the exercise, your therapist will guide you in practicing relaxation techniques to help ease anxiety symptoms that arise. The process would continue step-by-step, progressing to more anxiety-producing stimuli, such as hearing audio of women talking, watching videos of women, and, finally, going places where women are present.[121]
[121] Kendra Cherry, ‘Gynophobia: The Fear of Women’, Verywellmind (online) (2022) <>
I gave the Respondent an opportunity to comment on these articles before providing closing submissions.
The Respondent’s position
Essentially, the Respondent’s position is that paragraph 34(1)(d) of the NDIS Act is not met because rules 3.2 and 3.3 are not satisfied.[122]
[122] Closing Submission, filed by the Respondent on 28 November 2022, p 10.
In opening submissions during the hearing the Respondent drew attention to the Applicant’s approach not being
a form of therapy that has been recommended to him by a psychologist or psychiatrist. It is a new and innovative form of therapy that he has developed and explained in the documents that he has prepared, drawing in part from ideas of other established therapies. But so far as the Respondent is aware, there is no established practice of this therapy being used at all or in particular being used in connection with people with autism.[123]
[123] Transcript of Proceedings (15 November 2022), p 13.
The Respondent also submitted in part that “the support that [the Applicant] wishes the agency to fund is one that he has developed…it’s not a recognised form of therapy or treatment. There’s no scientific literature capable of justifying the support; indeed, there’s not even any lived experience capable of justifying the support.”[124] The Respondent also noted Dr R formed the view it presents an unacceptable risk of harm.[125]
[124] Ibid, p 14.
[125] Ibid.
The Respondent then concluded that it is not sufficiently likely that the support will assist the Applicant to pursue goals, objectives and aspirations or that it will assist in undertaking activities so as to facilitate his social or economic participation, so the support cannot represent value for money, and therefore paragraphs 34(1)(a), (b) and (c) are not met.[126]
[126] Ibid.
In their closing submissions[127] the Respondent noted the proposed treatment has been developed by the Applicant himself. The Respondent noted the Applicant did not call his witnesses to give oral evidence at the hearing but relies on documents filed with the Tribunal. It was argued, as no witnesses gave oral evidence for the Applicant, the weight I give their reports should be limited, to the extent there is any inconsistency or dispute between their views and those of Dr R. With regard to Dr Y, it was noted her letter of 20 April 2022 essentially records matters the Applicant wants emphasised, rather than providing a professional opinion.[128] Attention is drawn to her comment that the Applicant “is representing himself for approval to implement his own therapy”[129].
[127] Closing Submission, filed by the Respondent on 28 November 2022.
[128] Ibid, p 4.
[129] Ibid, p 7.
With respect to Mr A’s report the Respondent submitted that given
his report is, at least in part, tendentious and laced with subjective opinions of a non-professional kind, [and so his views] should be accorded little, if any, weight.
Moreover, there is little in the report that rises to the level of expert opinion. Large sections of the report recite what would appear to be the evidence of the Applicant. Other parts of the report concern questions of law in respect of which [Mr A] is unqualified to opine.[130]
[130] Closing Submission, filed by the Respondent on 28 November 2022, p 8.
The Respondent submitted that Ms W’s report largely represents clarifications by the Applicant to matters raised in Dr R’s report, and notes she records that the Applicant accepts that the work with a sex worker would result in an “artificially generated”[131] relationship but will assist him to practise his skills learned in conventional therapy.[132]
[131] Ibid.
[132] Ibid.
With respect to the information provided after the hearing the Respondent submitted the following: the material is unverified, general in nature and has not been examined, explained or endorsed by any expert witness; the Applicant has not been diagnosed as suffering from gynophobia, or any other phobia, so the material is irrelevant; and, the Applicant seeks to define the therapy he has devised as a form of ‘exposure therapy’ but he is not qualified to make that assessment.[133]
[133] Ibid, p 9.
The Respondent submitted that the Applicant’s
…thesis proceeds on the false assumption that because various forms of therapy appear to be simplistic and easily replicable, they are in fact capable of being devised and/or performed by unqualified individuals. There is real danger in that assumption. Therapies are designed and tested by highly qualified professionals bound by professional and ethical obligations. All psychiatric and psychological therapies are rigorously scrutinised before being accepted by the profession as appropriate. And they are administered by properly trained professionals and para-professionals. All of that is because real harm can result from untested or poorly designed or poorly administered therapies.[134]
[134] Ibid.
The Respondent drew attention to rules 3.2 and 3.3 requiring the CEO to consider: published and refereed literature and any consensus of expert opinion; the lived experience of the participant or their carers; anything the Agency has learnt through delivery of the NDIS; and expert opinion.[135]
[135] Closing Submission, filed by the Respondent on 28 November 2022, p 10.
The Respondent concluded that the support sought is a hypothesised form of therapy that has been devised by the Applicant, who has no relevant professional qualification or training, and while he may have developed it with input and assistance from others there is no published and refereed literature before me that demonstrates the proposed therapy has recognised therapeutic value.[136] Attention is drawn to Dr R’s concerns that there are methodological flaws in the proposal, inherent risks and no measurable outcomes.[137]
[136] Ibid.
[137] Ibid.
The Respondent submitted that WRMF is distinguishable from this case as there is an absence of professional opinion and a “sharp distinction”[138] in the facts.
[138] Ibid, p 11.
The Applicant’s comments on the Respondent’s closing submissions
The Applicant provided the following comments on the Respondent’s closing submissions, prepared by Mr A with the Applicant.[139] He raised concerns about the Respondent “preventing innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports.”[140] The Applicant also made various comments about the Respondent’s conduct and their views on his capacity. He repeated his submissions that his proposal will “help me with interacting with women, this will boost and stabilise my confidence, which in turn will reduce my anxiety, something which I am targeting. I don’t need drugs, I just need to become more confident in myself when it comes to interactions with the opposite sex, to whom I am attracted.”[141] He submitted that increased confidence would lead to less reliance on psychologists.
[139] Closing Submission, filed by the Applicant on 10 December 2022.
[140] Ibid, p 5.
[141] Ibid, pp 6-7.
The Applicant argued that his proposal would involve less engagement with therapists and behavioural specialists. He believes his “proposal would possibly open a new support stream for disabled people, decreasing the burden on speech and occupational therapists, who are in short supply…”[142]. He calculated his proposal will be cheaper than his current plan.
[142] Closing Submission, filed by the Applicant on 10 December 2022, p 7.

Regarding the requirement that the support be effective and beneficial, the Applicant provided links to articles, quoting and emphasising one in particular on exposure-based therapy, as follows:
Exposure therapies are thus designed to encourage the individual to enter feared situations (either in reality or through imaginal exercises) and to try to remain in those situations. The selection of situations to try typically follows an individually-tailored fear hierarchy that starts with situations that are only mildly anxiety-provoking and builds up to the most feared encounters…[143]
[143] Society of Clinical Psychology, Diagnosis: Specific Phobias; Treatment: Exposure Therapies for Specific Phobias (online) < in Closing Submission, filed by the Applicant on 10 December 2022, p 9.
With respect to the Respondent’s comment that, “somewhat unusually, the idea for the use of a sex worker in conjunction with therapy has originated from the Applicant and not from one of his treating doctors or psychologists”[144], the Applicant submitted his evidence shows “a fear of spiders, or of flying, or of getting a vaccine, provokes anxiety similar to my own when interacting with a woman I am attracted to. Exposure therapy would reduce my anxiety to a feared stimulus...”[145]. He submitted that he did his homework and got Dr Y to check it. She then named it “in vivo graded exposure”[146] which is mentioned in the literature. He submitted he has provided literature to demonstrate how exposure therapy works.
[144] Closing Submission, filed by the Respondent on 28 November 2022, p 2, in Closing Submission, filed by the Applicant on 10 December 2022, p 9.
[145] Closing Submission, filed by the Applicant on 10 December 2022, p 9.
[146] Ibid, p 10.
The Applicant raised his concern that Dr R is not an expert in ASD and that she could not read Dr G’s handwritten notes (which were summonsed but illegible).
With respect to the Respondent’s concern that the Applicant did not call witnesses, the Applicant submitted Dr R did not produce any significant evidence, merely assertions and assumptions.
The Applicant disputes the sense in his consulting a sex therapist because he is not currently having sex and he has sufficient sexual knowledge regarding consent and safe sex. He does not believe a speech therapist is necessary and does not need the support of a behaviour specialist because he is aware of the need to be respectful with women. He believes he can address his issues with a sex worker. He is not interested in consulting an occupational therapist for assistive technology guidance.
The Applicant stated he has been working with therapists for eight to ten years. He is not fearful of therapists and they do not usually provoke his anxiety. But he questions how he will remember what four different therapists and his psychologist have taught him, when applying that knowledge in the real world. He believes what is likely to happen is, while attempting to interact with a woman, his stuttering will return because of his anxiety from trying to remember what he has learnt. He also questions whether women in general dress, act and communicate like therapists. In his view a sex worker can be more versatile in how they act, dress, and communicate, whereas a therapist is predictable. He submitted he will instruct the sex worker to reject him so he can, in real time, in an appropriate manner, cope with rejection and/or discuss coping mechanisms and strategies he can utilise with his psychologist.
The Applicant takes issue with the Respondent’s reference to Mr A’s report being tendentious and submits Mr A’s opinions are “in line with the profession he works in as a professional sexologist and is promoting sex and disability in the same sentence…”[147]. He submits the purpose of Mr A’s report was to provide background and context from the Applicant’s perspective and that of a ‘reasonable person’.
[147] Closing Submission, filed by the Applicant on 10 December 2022, p 17.
The Applicant is of the view the role play he hopes to participate in with a sex worker is analogous to role playing “generated in training of retail staff, nurses and possibly doctors, practically anybody including therapists in their training in their chosen profession.”[148]
[148] Ibid, p 19.
With respect to the Respondent’s submission that the Applicant does not have gynophobia, the Applicant states:
I am not implying I have gynophobia, I am merely presenting to the Respondent that for a condition such as gynophobia, the article that is written states the form of treatment to be used is cognitive behaviour therapy and exposure therapy. I have, for the most part, anxiety about interacting with women, which still translate[s] to fear of interacting with feared stimuli but on a smaller scale [as] oppose[d] to those who are inflicted with gynophobia.[149]
[149] Closing Submission, filed by the Applicant on 10 December 2022, pp 19-20.
He reiterated that he has provided literature explaining how exposure therapy works and provided a description of how he envisages in vivo exposure and graded exposure will be applied.
The Applicant submits his therapy is cheaper than the Respondent’s plan, shorter in duration, involves only two people as opposed to four therapists and he has provided literature on exposure therapy supporting its use for treating anxiety. He also refers Professor Attwood’s email, praising him on his therapy proposal.
The Applicant clarified the support he is seeking: one hour driving to the destination; three hours at the destination; and one hour driving home, that is, five hours in total, once per month for ten months.
The Applicant referred to the principles and objects promoting the provision of innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community. He referred to WRMF and the following statement by the Court:
We see no reason why sexual activity and sexual relationships would not be regarded as included within the activities listed in s 24(1)(c) (in particular sub-para (ii)); nor why the way an impairment may affect a person's ability to engage in sexual activity and sexual relationships would not be within the concept of 'social … participation' in s 24(1)(d). Members of the Australian community can choose to engage in lawful, consensual, sexual activity and sexual relationships; or, they can choose not to. For some people, such activities and relationships will fulfil important human needs; for others they may be less important. That is the case with many kinds of social participation in which individuals engage - sport, music, hobbies, political or religious activities. Nevertheless, they are all part of the spectrum of interaction between individuals within a community. The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual's particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in s 17A of that Act…[150]
[150] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [141] in Closing Submission, filed by the Applicant on 10 December 2022, pp 28-30.
The Court noted the NDIS Act and rules do not expressly exclude sexual services being funded. With respect to the Respondent’s view that in this case there is no relevant ‘lived experience’ as was the case in WRMF, the Applicant questioned whether the Respondent wants the Applicant to go to a sex worker to see how effective the proposal will be.
The Applicant submits that Multiple Sclerosis (MS) and ASD are conditions that make it difficult to obtain an intimate partner for the purposes of a relationship. He proposes
utilising [a] sex worker so that I may practice socialising and interacting with a woman of interest in a role playing scenario which also includes sexual release because sex is part of intimate relationship...So that I can gain practical experience and utilise what I have learnt while I am out in the community as such by utilising a sex worker [which] would help decrease my anxiety and overcome issues associated with my level 2 Autism.[151]
[151] Closing Submission, filed by the Applicant on 10 December 2022, p 32.
He asserts he is not able to utilise the supports funded by the Respondent because they have not taken into account his cognitive impairments and learning style.
The Applicant set out some background information relevant to the review application explaining the difficulties he faced in navigating the process and the stress this caused him. He submitted that he could have used his core funding of $45,346 to visit a brothel to achieve his goal of having the girlfriend experience but he is honest and sincere and wishes to pursue what he believes is his right.
Effective and beneficial
I am mindful of the requirements of sections 3, 4 and 17A of the NDIS Act, concerning the objects and principles. I have taken into account the expectation that the Applicant will be able to exercise choice and control in pursuing his goals, and that high quality and innovative supports will be provided. The NDIS Act also anticipates that the Applicant, so far as is reasonable in the circumstances, has capacity to determine his own best interests.
I am also bound by subsection 34(1) of the NDIS Act, which requires that I must be satisfied of all the matters set out in paragraphs 34(1)(a) to (f) in relation to the funding or provision of a support. Accordingly it is not necessary to consider those matters in any particular order. The Respondent has argued the support sought is not effective and beneficial so I have first considered whether I am satisfied that the support will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice, as required by s 34(1)(d).
Paragraph 33(5)(d) requires me to apply any relevant Supports for Participants Rules. In this case, when considering whether the support sought will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice, rule 3.2 requires me to consider the effectiveness of the support for others in like circumstances. It specifies that evidence may include published and refereed literature and any consensus of expert opinion; the lived experience of the Applicant; and anything the Respondent has learnt through delivery of the NDIS. Rule 3.3 is also relevant and requires me to take into account expert opinion.
I must have regard to current good practice in deciding whether the support will be, or is likely to be, effective and beneficial.
There is no dispute that the Applicant has a goal to develop interpersonal skills that might assist him to develop and sustain a romantic heterosexual relationship. To achieve this, he has developed the Guide, which will include both CBT and exposure therapy. His intention is that the exposure therapy arm will involve engaging the services of a sex worker to practise the social and communication skills taught to him by his therapist. He has designed a four step approach, the fourth step being the sexual component. He has stated that he does not expect the sex worker to provide any therapeutic intervention; nor does he expect to form a romantic relationship with the sex worker.
On the evidence before me I am satisfied that the Applicant is the architect of the Guide. I accept the Applicant’s statement that he did his homework and got Dr Y to check it. I note however that he has designed the graded exposure therapy, not Dr Y or Ms W.
Dr Y appears to have been initially supportive of the Applicant’s approach as indicated in her report dated 26 July 2021. She expressed a view in that report that exposure therapy with a sex worker will provide the Applicant with a more practical approach, which will most likely support his learning capacity, result in faster gains and thus reduce his need for therapy regarding this goal. I note however that she does not refer to any published and/or refereed literature regarding the use of a sex worker for exposure therapy. Since then, her written evidence, provided to support the Applicant with his explanation of the therapy, referencing Dr R’s report, has made it clear that the Applicant wishes to implement “his own therapy”. She has not continued to explicitly advocate the approach’s efficacy. She was not called to give oral evidence at the hearing so it is not clear to me whether she continues to support this approach. On the evidence before me I am not persuaded Dr Y continues to support the engagement of a sex worker for the purposes of exposure therapy to address the Applicant’s anxiety around women.
Similarly, Ms W’s evidence makes it clear that the Applicant wishes to implement “his own therapy (exposure-based intervention)”[152]. She reported the engagement with the sex worker will provide an opportunity for the Applicant to practise social and anxiety management skills. She does not purport to have formulated this approach herself. She does not refer to any published and/or refereed literature on the subject.
[152] TB A7, p 1.
Neither Dr Y nor Ms W purport to have knowledge of this approach, engaging a sex worker for exposure therapy to deal with anxiety associated with ASD when around women, being used in similar circumstances. This is relevant to my consideration of the effectiveness of the support for others in like circumstances. Neither party provided to me evidence indicating that a support of this nature has been used for other participants in similar circumstances. Dr R was not aware of any recognition of the Applicant’s approach in the literature. On the evidence before me I am not aware of any published and refereed literature on the subject of using exposure therapy in the Applicant’s circumstances, for the reasons the Applicant wishes to see a sex worker. For reasons given below I am not satisfied the circumstances in WRMF mirror the Applicant’s circumstances.
Accordingly I do not have before me evidence of published and refereed literature or information about the effectiveness of this particular support, engaging a sex worker for exposure therapy, for others in like circumstances.
I have considered the Applicant’s published evidence on exposure therapy and I accept it can be an appropriate therapy for a range of phobias. However I am not satisfied fear of spiders, animals, flying, water, heights and/or claustrophobia are analogous to the fears and anxiety the Applicant suffers when trying to communicate with women. The Applicant’s anxiety stems from trying to navigate the nuances and unpredictable nature of interpersonal relationships given the challenges he faces associated with ASD.
I have considered the evidence the Applicant has provided regarding treatment for gynophobia. However I note the Applicant’s own statement that he is not implying he has gynophobia, he is merely presenting evidence that conditions such as gynophobia can be treated with CBT and exposure therapy. While I am not satisfied the Applicant has gynophobia, I note the article he provided does not suggest using a sex worker for exposure therapy in the way in which the Applicant intends. The article discusses graded exposure that includes hearing audio of women talking, watching videos of women, and, finally, going to places where women are present. It also states “your therapist will guide you in practicing relaxation techniques to help ease anxiety symptoms that arise”[153], suggesting the therapist is present during the exposure therapy.
[153] Kendra Cherry, ‘Gynophobia: The Fear of Women’, Verywellmind (online) (2022) <>
I am not satisfied the published evidence on exposure therapy, provided by the Applicant, supports his assertions that his four step approach, engaging a sex worker for exposure therapy, will be effective and beneficial.
I have considered Professor Attwood’s email and note he agrees with the Applicant that he has developed an “unconventional therapy for autistic men”[154]. While I accept Professor Attwood expressed a view that the Guide has the potential to be of considerable psychological benefit to autistic individuals, I am not satisfied this reaches the threshold required, that the support will be, or is likely to be, effective and beneficial. I am of the view Professor Attwood’s response strongly suggests the approach needs to be researched.
[154] Email from Professor Tony Attwood to the Applicant, dated 2 November 2021.
I have taken into account the Applicant’s views that his therapy is innovative and therefore should be supported in accordance with the objects and principles of the NDIS Act. On his own evidence his proposal could be ‘ground-breaking’. However I am not satisfied the references to innovative supports in paragraph 3(1)(g) and innovation in subsection 4(15) of the NDIS Act were intended to include supports that have not been researched, reviewed and tested. I note paragraph 3(1)(g) of the NDIS Act also refers to supports being ‘high quality’ and subsection 4(15) refers to ‘contemporary best practice’. Most significantly paragraph 34(1)(d) requires the CEO to have regard to current good practice. I am of the view it is not possible to consider whether a support is high quality, contemporary best practice or current good practice if it has not been tested and reviewed by qualified professionals. While I accept the Applicant’s proposal is innovative and might be effective, I am persuaded by the Respondent’s submission that therapies need to be “tested by highly qualified professionals bound by professional and ethical obligations. All psychiatric and psychological therapies are rigorously scrutinised before being accepted by the profession as appropriate. And they are administered by properly trained professionals and para-professionals.”[155]
[155] Closing Submission, filed by the Respondent on 28 November 2022, p 9.
The Applicant has indicated a view that I should not rely on Dr R’s opinion because she is not an expert in autism. I am not persuaded by this. I have taken into account Dr R’s qualifications as a consultant forensic psychiatrist with expertise in the use of various therapies. She also stated in her oral evidence that many of her own patients experience anxiety, and have ASD, and other conditions prohibiting them from living the authentic way that they wish to live.[156] I am satisfied Dr R has the appropriate knowledge, experience and expertise expected of an expert witness. I am satisfied her opinion is relevant to the consideration required by rule 3.3.
[156] Transcript of Proceedings (15 November 2022), p 26.
The Applicant has expressed concerns that he did not spend sufficient time with Dr R. I note from her report that the Applicant displayed well-organised thought processes, normal in rate, and was expansive, providing lengthy responses to questions. In her view his cognitive function “demonstrated an adequate level of attention, concentration, memory and comprehension through the assessment and he was able to relay a cogent history.”[157] Dr R’s report demonstrates the Applicant was able to describe his relevant history and his proposal. Having regard to her written and oral evidence I am satisfied the Applicant had an adequate opportunity to give his views and arguments regarding his proposal. I am not satisfied the Applicant spending any longer with Dr R would have persuaded her that his approach is good practice, or will be, or is likely to be, effective and beneficial.
[157] TB R2, p 3.
For the reasons given above I accept that Dr R is qualified to give an expert opinion and undertook an independent assessment on which I can rely. Accordingly I have taken into account her views about a number of concerns arising in this case, as discussed below.

I have concerns about how realistic the Applicant is about the efficacy of this approach. The Applicant explained he is not suggesting the sex worker provide therapeutic support, only assist with the exposure therapy by role play. He does not think he needs the ‘safety net’ that psychodrama provides. However I am persuaded by Dr R’s view that if the Applicant engages in role play to deal with extreme anxiety there should be established a frame of safety, a therapeutic relationship, and a space where his anxieties, fears, and desires can be explored. I am not persuaded that this should take place with an untrained person, as proposed by the Applicant.
I also note from the Applicant’s evidence that he feels “sex workers are most appropriate considering that all she has to do is act like herself, like a woman, like every other woman that is here in Australia.”[158] I have also taken into account his comments that, in the general public, not every woman dresses, speaks and acts like a therapist. I am not satisfied that intimate human interaction is predictable and formulaic and can be learned in the sessions as proposed by the Applicant. I agree with Dr R’s view that if a “paid worker responds positively, that might reinforce that [the Applicant’s] language or behaviour is appropriate. It may very well be the case that it is not and a woman acting of agency and autonomy would respond to it completely differently”.[159]
[158] Transcript of Proceedings (15 November 2022), p 32.
[159] Transcript of Proceedings (15 November 2022), p 23.
I also have concerns about the analogy the Applicant draws, with his approach and role playing “generated in training of retail staff, nurses and possibly doctors, practically anybody including therapists in their training in their chosen profession.”[160] I am not satisfied these examples are as complex, unpredictable and nuanced as intimate personal relationships.
[160] Closing Submission, filed by the Applicant on 10 December 2022, p 19.
Dr R confirmed that she was not aware of any recognition of the Applicant’s approach in the literature. In her view it is not an efficacious treatment. She expressed concern that the exposure component of the approach was not going to be conducted by a trained therapist. She was concerned about transference and countertransference. She did not believe the proposal would teach the Applicant about organic social cues, his desirability, or how to manage situations leading on from those social interactions. I note the Applicant’s view – that he suspects it would put a lot of pressure on the therapist if transference were to occur, as he understands that having an intimate relationship with a therapist is not permitted. However I am concerned about his statement that “if transference occurred with the sex worker, after that therapy is completed, it wouldn’t matter because in that regard there’s no ethical guidelines that a sex worker has to walk. To a degree, there’s ethical guidelines that a sex worker has to follow, but not in a therapeutic sense.”[161] I am of the view this suggests some ambiguity in relation to the Applicant’s expectations of the engagement.
[161] Transcript of Proceedings (15 November 2022), pp 30-31.
I take into account the Applicant’s statement in part that:
not only will the sex worker act in a positive way, but there are certain situations that I am being rejected from the sex worker. That’s the way that I can be exposed in various ways to being rejected and I can learn ways for myself on how to cope with those rejections…That being said, for an autistic person, one of the greatest flaws that we have or greatest difficulties that we have is that we’re not impressed with situations - we’re happy with situations that are predictable. Where we don’t function terribly well is where the situations are unpredictable. What I’m suggesting with my therapy proposal [is] providing ways of seeing situations that are unpredictable and being able to learn to address them appropriately…I’m aware of some of the flaws of my autism, I’m trying to remedy that through the therapy proposal. Part of that is my anxiety. Another part of it is the unpredictable nature of socialising and being in front of it and in person in the moment allows me to learn in a practical way. Simply by talking to me I don’t know how it - how I’m going to learn it without seeing it…I’m a visual learner. I learn by doing things. I’m not academically strong…my strengths in learning are in practical ways...[162]
[162] Transcript of Proceedings (15 November 2022), pp 33-34.
In considering this I note Dr R raised concerns about the prospect of harm if the approach is engaged, in that the Applicant may experience rejection at the end of the artificial relationship. In her view “that rejection can be experienced quite significantly if a hope and attachment have been placed on the interaction….it possibly could further widen the chasm between [the Applicant’s] understanding of his desirability and how to interact in the real world, so to speak, with women and how they respond to his cues.”[163] I am guided by her opinion and have formed the view that there may be a prospect of harm if the approach is engaged. I have concerns that the support sought might cause harm and this raises doubts as to whether it can be considered ‘good practice’.
[163] Ibid, p 23.
The Applicant has asserted that WRMF mirrors his request for support and bears strong similarities to his case. I disagree with this view. The facts in that case are distinguishable from the Applicant’s. As the Tribunal in that case stated, the circumstances affecting WRMF were very unusual. WRMF’s disability was associated with MS and other physical medical conditions. As reported by the Tribunal, WRMF sought the services of a specially trained sex therapist, as
a partner from the community would be unlikely, because of special features of the case, to be willing or able to provide the kind of services the applicant requires in order to obtain sexual release. Nor, if she ever found a partner, would she be able to sexually stimulate the partner, because of matters referred to in the confidential reasons. Her condition also prevents her from masturbation.[164]
[164] WRMF and National Disability Insurance Agency [2019] AATA 1771 (8 July 2019) at [7].
This is not the case for the Applicant. He has asserted that he wants to engage the services of a sex worker to ultimately assist him to enter a romantic intimate relationship. His reasons for engaging a sex worker are very different to those of WRMF, who essentially sought sexual release. Dr R reports that the Applicant denies any problems achieving or maintaining erections and that he masturbates. The Applicant has not asserted that he has any physical condition that prevents him from achieving sexual release independently. The Applicant seeks the support to engage in exposure therapy. This bears no similarity to WRMF’s reasons for seeking the support.
WRMF had lived experience of her proposed support, relevant to rule 3.2(b). She gave evidence of her use of specialised sex workers. The Applicant in this case does not have lived experience of using a sex worker for his proposal. He hopes that the proposed support will improve his interpersonal skills and reduce his anxiety around women. I note he visited the brothel once to make arrangements and admits that it was nerve-racking. I am not satisfied the Applicant has lived experience of his proposed support, as WRMF did.
I gave the Applicant an opportunity to comment on the concern that WRMF may be distinguished from his case. In response he indicated that he understood the facts in that case but his autism makes it difficult to meet and interact with potential partners, which is the same as WRMF’s situation. He referred to articles indicating the benefits for disabled people from interactions with sex workers. Having regard to Ms Wotton’s Master’s thesis I accept that there may be benefits for disabled people from interactions with sex workers. However I am not satisfied her report, or any other articles provided by the Applicant, demonstrate there may be benefit from working with a sex worker to engage in exposure therapy for the purpose the Applicant has stated.
I have considered Dr R’s expert opinion and find it to be persuasive. I have formed the view that, while the support sought to facilitate the exposure therapy component of the Applicant’s Guide might be innovative and reflect choice, I am not satisfied a sex worker would necessarily be able to work with any acute anxiety the Applicant experiences. I am concerned that the Applicant would not be provided with the standard of care in managing his anxiety should it be exacerbated by the proposed exposure therapy. I am not satisfied the Applicant will learn anything about his desirability or ability to connect with a woman intimately from an artificially generated relationship. I am concerned about his view that if transference occurred with the sex worker, it would not matter because in that regard there are “no ethical guidelines that a sex worker has to walk.”[165] I am not satisfied the Applicant’s proposal will prepare him to negotiate the challenges and nuances of intimate relationships with women with agency and autonomy. I am also concerned that his proposal lacks measurable outcomes.
[165] Transcript of Proceedings (15 November 2022), pp 31-32.
Overall, for the reasons set out above, I am not satisfied engaging a sex worker for the graded exposure therapy component of the Guide, designed by the Applicant, will be, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice. Accordingly I am not satisfied s 34(1)(d) is met.
CONCLUSION
As I am not satisfied a factor in s 34(1) is met, I am not satisfied the support sought by the Applicant, funding for a sex worker to engage in exposure therapy to provide assistance in developing skills and confidence, is a reasonable and necessary support. Accordingly I am not satisfied the support sought to facilitate this, a support worker to drive him to and from the sessions, is a reasonable and necessary support.
DECISION
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. Connolly

....................................SGD....................................
Associate
Dated: 31 January 2023

Date(s) of hearing: 15 November 2022

Date final submissions received: 10 December 2022

Counsel for the Respondent: Mr M Costello

Solicitors for the Respondent: Mr K-W Kim

[2023] AATA 98

31 January 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Expert Evidence

Standing

Statutory Construction

Date(s) of hearing:	15 November 2022
Date final submissions received:	10 December 2022
Counsel for the Respondent:	Mr M Costello
Solicitors for the Respondent:	Mr K-W Kim