SLG v James
[2021] VSC 364
•22 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 01277
| SLG (by her litigation guardian The Secretary to the Department of Health and Human Services) | Plaintiff |
| v | |
| DR JUDE JAMES | First Defendant |
| COBRAM DISTRICT HEALTH | Second Defendant |
| AMBULANCE VICTORIA | Third Defendant |
| JULIAN FREIDIN | Fourth Defendant |
| JOSEPHINE FRANCES McKEOWN | Fifth Defendant |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 May 2021 |
DATE OF JUDGMENT: | 22 June 2021 |
CASE MAY BE CITED AS: | SLG v James & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 364 |
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JUDICIAL REVIEW – Review of a decision of a Medical Panel – Jurisdictional error –Whether the Medical Panel failed to take into account a mandatory consideration – Whether ‘lying and thieving behaviour’ a subset of dysfunctional behaviour - Whether Medical Panel demonstrated active engagement with the relevant information – Contemporaneity of behavioural information necessary – Procedural Fairness – Onus of the Medical Panel to make enquiries – Unreasonableness – Permanency of improvement – Appeal allowed – Decision remitted to a differently constituted Medical Panel – Admissibility of additional evidence in a judicial review – Wrongs Act 1958 (Vic), s 28LN - Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied – Chang v Niell [2009] VSCA 151 considered – Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 considered – Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors [2014] VSC 664 considered – Schmael v Leach [2020] VSC 562 considered – Ucar v Nylex Industrial Products Pty Ltd (1985) 159 CLR 550 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Roslyn Kaye | HWL Ebsworth |
| For the Defendants | Robert Harper | K&L Gates |
HER HONOUR:
Background
In July 2011, when the plaintiff was just 21 months old, her mother died. The cause of the death of the plaintiff’s mother shortly after her admission to hospital is the subject of a separate cause of action in negligence against the health professionals involved in her care. That proceeding is brought on behalf of her children, including the plaintiff (negligence proceeding).[1]
[1]June Lynette Boswell & Ors v Dr Jude James & Ors (Supreme Court of Victoria, S CI 2014 03883, commenced 28 July 2014). The defendants in that proceeding are Dr Jude James, Cobram District Health and Ambulance Victoria.
As the plaintiff is a minor, she sues by her litigation guardian, the Secretary to the Department of Health and Human Services (now known as the Department of Families, Fairness and Housing).
In May 2019, child and adolescent psychiatrist, Dr Robert Adler, prepared a Certificate of Assessment of Degree of Impairment pursuant to s 28LN of the Wrongs Act 1958 (Vic) (Act). The certificate of assessment certifies that the degree of impairment met the threshold level under the Act.
Particulars described under s 28LT(2) of the Act were served on the defendants in the negligence proceeding on 6 May 2019 and the certificate of assessment served on 15 May 2019. On 4 July 2019, the defendants in the negligence proceeding referred a medical question in relation to the assessment of impairment to a medical panel (Panel) for determination.
The Panel, comprising the fourth and fifth defendants, was convened to answer the referred medical question.
The Panel’s determination was provided to the parties on 13 January 2020. The question and answer in the certificate of determination was as follows.
Question:
Does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level?
Answer:
The Panel determined that the degree of impairment resulting from the psychiatric injury to the claimant alleged in the claim does not satisfy the threshold level.
To conduct its assessment, the Panel was provided with the medical records of the plaintiff, including the report of Dr Adler and other medical reports. The Panel examined the plaintiff on 2 December 2019. The plaintiff was accompanied to the examination by Ms Leanne Wheat, a Department of Health and Human Services team manager, who was also interviewed by the Panel. Ms Wheat was familiar with the plaintiff’s history.[2]
[2]Medical Panel, ‘Reasons for Determination’, Filed in SLG (by her Litigation Guardian, the Secretary to the Department of Health and Human Services) v Dr Jude James & Ors, S ECI 2020 01277, 20 January 2019, 3 (‘Reasons for Determination’).
The Panel provided written reasons for its determination.[3]
[3]Ibid 2.
The nature of this proceeding
The plaintiff seeks judicial review in the nature of certiorari quashing the Panel’s certificate of determination and an order remitting the referred medical question to a differently constituted panel to be reconsidered in accordance with law.
Dr Adler’s assessment of the plaintiff
Dr Adler assessed and certified that the plaintiff met the threshold under the Act in his report of 29 January 2019.
Dr Adler concluded the most appropriate diagnosis for the plaintiff were as follows:
· Complex Trauma/Type II PTSD;
· Reactive Attachment Disorder;
· Possible ADHD;
· Oppositional Defiant Disorder (ODD)/Conduct Disorder (CD);
· Possible Foetal Alcohol Syndrome; and
· Possible Autism Spectrum Disorder.[4]
[4]Dr Robert Adler, ‘Confidential Psychiatric Report’, Filed in SLG (by her Litigation Guardian, the Secretary to the Department of Health and Human Services) v Dr Jude James & Ors, S ECI 2020 01277, 29 January 2019, 12-13.
In Dr Adler’s opinion, the death of a parent, particularly a primary caregiver is perhaps the most significant loss a young child can experience, even a child of less than two years. He also commented that the mother’s death “…led to the subsequent cascade of events that are major contributing factors” to the plaintiff’s behavioural and attachment problems and complex trauma.[5]
[5]Ibid 13.
Dr Adler’s report identified the plaintiff’s behaviour and recorded that the plaintiff’s paternal grandmother described the plaintiff as “a thief and compulsive liar”, that she can be “very defiant and throws tantrums when she does not get her own way” and that she sometimes wet herself and hid her underwear while denying she had wet herself.[6]
[6]Ibid 5.
At the assessment with Dr Adler, the plaintiff was accompanied by the plaintiff’s paternal aunt who was caring for her at the time of the assessment. The plaintiff’s aunt told Dr Adler of the following behavioural issues including that the plaintiff:
(a) likes to steal and had stolen make up from her daughter-in-law;
(b) had stolen something from Kmart the week prior to the assessment with Dr Adler;
(c) had been taken by the aunt down to the local police station so the consequence of thieving could be explained to her;
(d) was described by the aunt as “having an attitude”; and
(e) wets herself at school three or four times a week, and when she did, she usually denied it.
Using the Guide to the Evaluation of Psychiatric Impairment for Clinicians[7] (GEPIC) Dr Adler estimated that 20% of the plaintiff’s impairment was unrelated to the death of her mother, while the remaining 80% of her impairment is wholly or substantially attributable to the death of her mother. As for whole person impairment terms, Dr Adler considered that the plaintiff’s impairment was 25% and her pre-existing impairment was 10%.[8]
[7]M.W.N. Epstein, G. Mendelson, N.H.M. Strauss, The Guide to the Evaluation of Psychiatric Impairment for Clinicians, Victorian Government Gazette No 19, 8 May 2008, 997 (‘GEPIC’). The degree to which the GEPIC can be or ought to be adapted to children is a matter of clinical judgement.
[8]Dr Robert Adler, ‘Confidential Psychiatric Report’(n 4), 14.
Admissibility of additional evidence in a judicial review context
An affidavit made by Ms Wheat dated 24 March 2021 (Wheat Affidavit) was sought to be admitted into evidence. There was a preliminary question of the admissibility of the Wheat Affidavit, and if admissible what weight it should be given.
At the hearing, counsel for the defendants conceded that they did not oppose the admission of the Wheat Affidavit, rather they had earlier opposed it as they were unconvinced as to its relevance.
The plaintiff argued that the Wheat Affidavit was relevant and admissible because Ms Wheat deposed:
(a) that neither she nor the plaintiff were asked about the lying and the thieving; and
(b) as to what she would have said had she been asked about the plaintiff’s lying and thieving.
The defendants argued that the Wheat Affidavit could be admitted into evidence if the Court determined the Panel was required, as part of its statutory duty, to specifically ask Ms Wheat about the plaintiff’s current status of thieving and lying and had not done so.
The defendants agreed that the Wheat Affidavit was relevant to establish whether the Panel asked that question or not. Further, the defendants conceded that the Wheat Affidavit did assist in providing evidence that the Panel did not ask that question.
The defendants did take issue with its admissibility in terms of whether the Wheat Affidavit assisted in the question of whether the Panel was under a duty specifically to ask that question. The defendants argued that if asking that question was essential i.e. that it went to a mandatory consideration, then the Wheat Affidavit was admissible.
In part, the affidavit does no more than confirm what is apparent from the Panel’s reasons as to what was asked of Ms Wheat and of the child. On the submissions of the parties – that it goes to confirm an omission – it is admissible.
The Wheat Affidavit also expresses a view of what Ms Wheat would have said, if asked. That information is helpful in determining the question of whether there is in fact any utility in referring the matter back for reconsideration. I would not put the Wheat Affidavit as serving any purpose above and beyond being helpful in that sense. The task for me is not to make any findings in relation to the Wheat Affidavit (or the Berry Street report dated October 2019, which is referred to in the Wheat Affidavit).[9] Rather, this evidence confirms that a history of lying and thieving is amongst the behavioural issues, which are part of the plaintiff’s psychological or psychiatric state.
[9]Ms Leanne Wheat, ‘Affidavit’, Filed in SLG (by her Litigation Guardian, the Secretary to the Department of Health and Human Services) v Dr Jude James & Ors, S ECI 2020 01277, 24 March 2021, 2 [8(c)].
The defendants argued that Ms Wheat did not have direct knowledge of the current state of the plaintiff’s lying and thieving behaviour and in that respect she relied on the reports of others. This source of the information that she had was second or third hand either from the Berry Street report and the reference therein to viewpoints of family members.
The defendants criticised the plaintiff’s case in that there was no reference or evidence of thieving being a continuing problem and the Wheat Affidavit did not advance this.
For reasons which I refer to later, I am not convinced of the substance of this criticism. It is not necessary for me in this judicial review proceeding to be satisfied there is such evidence. It might be said that it is speculative as to whether or not the lying and thieving is an ongoing issue. This is the essence of the Panel’s error if the Court finds that consideration of this behaviour is a mandatory consideration. If it is a mandatory consideration, and no enquiry was made notwithstanding this history, there was no consideration or engagement with the behaviour by the Panel and the Panel has thus failed to undertake its statutory task.
It is not necessary for the Court to be convinced that a different decision would definitely be made. All that is necessary is that a different decision might be made.
I accept that there is relevance and utility in the material contained in the Wheat Affidavit and it will be admitted into evidence.
Failure to take into account relevant considerations – lying and thieving
The first issue raised by the plaintiff is whether the Panel failed to take into account the lying and thieving behaviour of the plaintiff.
Apart from the examination that the fourth and fifth defendants conducted on 2 December 2019, the Panel had access to Dr Adler’s report and the plaintiff’s supporting medical file and other relevant documents.[10] As such, the Panel was aware of the plaintiff’s history of behavioural problems.
[10]Reasons for Determination (n 2). Enclosure A to the Reasons for Determination includes a Schedule of Attachments, including records of: Wyndham House Clinic; Wilmot Road Primary School; Meadowglen Primary School; Albury Preschool; Child Protection; Goulburn Valley Health; SHIP; and Austin Health.
However, it is said that despite this, background enquiries were not made with the plaintiff or Ms Wheat about whether the plaintiff continued to demonstrate lying and thieving behaviour and whether this behaviour was ongoing.
It is apparent from the Panel’s reasons[11] that the plaintiff was asked about her physical problems but there was no reference to the plaintiff having been asked about the history of her lying and thieving. It was argued that the reasons did not disclose any attempt on behalf of the Panel to explore or take into account the history of lying and thieving when the plaintiff was examined by Dr Adler.[12] It was argued that on this basis the Panel failed to take into account or ignored a relevant material consideration and this was particularly important in circumstances where the plaintiff is a minor.
[11]Ibid 4.
[12]Ms Ballantyne attended the examination before Dr Adler and provided this information to him.
There is reference to a history of lying and thieving in the Panel’s reasons.[13] From my reading of the Panel’s reasons, I have concluded that the Panel’s consideration of this issue is limited to them recording it as part of the plaintiff’s medical history. It is clear there is no reference to the current status of this behaviour or its ongoing tendency. This conclusion is also supported by the Wheat Affidavit.
[13]Reasons for Determination (n 2), 7.
Was the lying and thieving behaviour a mandatory consideration?
The question of whether a matter is one which is a mandatory consideration is informed by the High Court decision in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:
·A mandatory consideration is a matter which the decision maker is bound to take into account.
·The question of whether a decision maker is bound to take a matter into account is determined by the statute which confers the discretion to be exercised.
·Where a mandatory consideration is not expressly stated in the statute, one looks at the subject matter, the scope and purpose of the statute to determine whether it is a mandatory consideration.[14]
[14](1986) 162 CLR 24 (‘Peko-Wallsend’).
Both parties accept that behavioural disturbance in the broad sense is a relevant consideration.[15] The issue is at what level of generality or specificity ‘behavioural disturbance’ needs to be defined to fall within the ambit of being a mandatory relevant consideration.
[15]Transcript of Proceedings, SLG (by her Litigation Guardian, the Secretary to the Department of Health and Human Services) v Dr Jude James & Ors (S ECI 2020 01277, Justice Quigley, 28 May 2021) 21 (Ms Kaye) (‘Transcript of Proceedings’).
In Chang v Neill, the Court of Appeal said:
A relevant consideration in the Peko-Wallsend sense is usually expressed at a significantly higher level of generality than a factual matter.[16]
[16][2009] VSCA 151(‘Chang’) [71].
This appears to be the submission that the defendants urge upon the Court here. The defendants say when applying Chang this specific question of lying and thieving does not rise to the appropriate level, rather it is ‘merely one of a myriad of potentially relevant facts’.[17]
[17]Ibid [58].
The defendants submitted that the specific enquiry into lying and thieving is not a critical enquiry that went to jurisdiction. It was argued it is not a relevant factor that goes to the central issue, but rather a non-essential feature of the valid exercise of the Panel’s statutory function and therefore is not a relevant mandatory consideration.
The defendants referred to the circumstances of the worker in Chang and the enquiry to be made that related to work capacity. The argument was that if there is an enquiry into work capacity the Panel ought to have asked more questions including whether the worker had applied for part-time work. That was a specific question that counsel for the defendants said needed to be raised.
The defendants concede that each case turns on its own facts but highlighted that in the Chang case, the finding that the question, if asked, might be relevant to the Panel’s deliberations was because it might have indicated that the worker did not consider herself able to perform full-time work during that initial period. However, the fact could not be regarded as critical. A comparison was drawn with Wei v Minister for Immigration and Border Protection,[18] where the plaintiff’s enrolment status was the sole basis of the delegate’s adverse decision. The precise nature of the applicant’s job applications in that case was merely one of a myriad of potentially relevant facts. In light of the Panel’s conclusion that the applicant had some mild intermittent depressive and anxiety symptoms, it is very unlikely that its answer to the medical question about her work capacity would have been different if it had enquired as to the precise nature of the job applications following her redundancy.[19]
[18](2015) 257 CLR 22 (‘Wei’).
[19]Transcript of Proceedings (n 15) 63 (Mr Harper).
In Chang, the Court held that the medical panel did not properly discharge its statutory function by failing to enquire about the precise nature of the applicant’s work prior to her redundancy or of the work for which she applied following her redundancy. For similar reasons, the panel failed to accord procedural fairness to the applicant by not making those enquiries.
The defendants sought to draw a parallel here with those cases. It was suggested that there was a myriad of other conduct issues which are referred to in the Panel’s reasons and in the documents before them, including Dr Adler’s reports which mentioned destruction of toys, throwing things and objects, threatening children if they did not play with her, threatening to organise her siblings to beat them up, defiance and throwing tantrums. It was suggested if the plaintiff’s logic was followed the Panel would be required to make specific enquiries to all of those matters. The defendants argued that to make such specific enquiries goes well beyond the statutory task required by it.
When the example given by the Court of Appeal in Chang is examined to better understand the level of specificity or generality which might elevate a consideration to a mandatory relevant consideration, the following emerges. There is a difference between the evidence or facts that concern a relevant consideration and the relevant consideration itself.
There is a spectrum of particularity to the questions the Panel could ask when it comes to enquiring about the plaintiff’s behaviour. At one end of the spectrum, questions may be so broad or general that they are meaningless to the psychiatric assessment task that the Panel has to undertake. At the other end of the spectrum, a question may be so specific that it is falls into the category identified by the authorities as being factual incidences or minutiae and does not go to the course of conduct and behaviour that is useful or relevant to the assessment.
The Court in Chang said that “the decision maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating the matter. The facts to be brought to mind are the salient facts which give shape to and substance to the matter: the facts of importance that, if they are not considered, it could not be said that the matter has been properly considered”.[20]
[20]Chang (n 16) [73]; citing Wei (n 18) 61 (Brennan J).
The defendants argued that what the plaintiff seeks to do is a very artificial process that suggests that the Panel should have just looked at the past behaviour and on the basis of the past behaviour found that the plaintiff was over the threshold.
I do not agree that that is the basis of the argument put on behalf of the plaintiff.
It is obvious from the reasons that the Panel did record a history of lying and thieving and other behavioural issues. However, this is not how the plaintiff argues the position.
I accept the evidence of lying and thieving was a salient fact and not just minutiae of the behaviour of the plaintiff. Lying and thieving is a category of behaviour of itself and not a specific incident or detail or example of the myriad and minutiae falling outside the requisite test.
It is a subset of behaviour but not such that it is at the end of the spectrum which would be properly classed as the minutiae of behaviour.
Dysfunctional behaviour illustrative of psychiatric disorder can manifest itself in a variety of behaviours. It seems inconsistent that the Panel could be said to have properly executed their task by considering some behaviour and not all behaviour which may affect their conclusion as to her psychiatric condition and its permanence.
The defendants argued that the lying and thieving behaviour was, at most, a relevant consideration but not a mandatory relevant consideration and that the detail of the type of behaviour was a subset of the mandatory relevant consideration, which was her behaviour more generally.
This submission by the defendants is one of semantics, not substance. The particular characteristic of lying and thieving amounts to anti-social behaviour. There will be gradations of the nomenclature used to describe behaviour or behavioural disturbance. At one end of the spectrum will be a particular factual, perhaps even a one-off example of an incident, and at the other an established course of conduct. In the context of a psychiatric assessment it is difficult to see how ignoring the type of behaviour, by not taking into account the lying and thieving, would be a proper exercise of the task to be undertaken. The Panel have ignored behaviour which demonstrates behavioural disturbance.
It is the significance and substance of the behavioural disturbance of lying and thieving which, in my view elevates it to something more than just a subset of behaviour or a factual matter which is a subset of what might be broadly described as of ‘behaviour’. This can be distinguished from the circumstances in the case referred to by both counsel of Chang.[21]
[21]Chang (n 16).
Jurisdictional error
It was also argued, and I accept, that even if it were not a mandatory relevant consideration, the failure to consider the behaviour was a failure to consider a relevant factual matter and that can also be jurisdictional error. A factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the task that is the statutory task of the decision maker.
In Chang, the Court of Appeal sets out a test of jurisdictional error which can occur where “the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material – properly construed – is an essential feature of a valid exercise of the function”.[22] If this path is followed, the question to be asked is whether the lying and thieving is an essential feature of a valid exercise of the function.
[22]Ibid [92].
I agree that it is and it has the prospect of playing a significant part in the proper assessment of the plaintiff’s psychological state.
I accept that the lying and thieving is a mandatory consideration, or in the alternative that it is an essential feature of the valid exercise of the function because it goes to analysing the condition of the plaintiff, the nature and degree of that condition and an analysis of the GEPIC of what degree of impairment she suffers.
There is a difference between what was before the Panel in terms of the current status of other earlier dysfunctional behaviour such as incontinence, behaviour at school, mood and temper restraint. The Panel had up to date information about those behaviours. Enquires were made, and were answered in respect of those aspects of behaviour.
The difference with the lying and thieving behaviour is that no specific question was actually asked. A broad question about general behaviour is asked according to the reasons and the Wheat Affidavit. The Wheat Affidavit provides material which demonstrates that she did not understand the general question to encompass the current status of the lying and thieving behaviour.[23]
[23]Transcript of Proceedings (n 15) 79-80 (Ms Kaye).
I note that there was no request to cross examine Ms Wheat.
The Panel’s lack of enquiry demonstrates a difference in approach to some particular behaviours compared to that of the lying and thieving.
I am satisfied that the failure to consider the behaviour, being a material consideration in the context of the child’s psychological or psychiatric diagnosis was an impermissible breach of the Panel’s obligation.
The process of active engagement with the information to form a view
Arguments raised by the parties
The plaintiff argued that once a mandatory consideration is identified the Panel is then required to engage in an active intellectual process in relation to that information or that consideration.
Reference was made to Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors in which Justice Cavanough stated:
In my view, the fact that, normally, the written submissions of the parties to the Medical Panel are included in the bundle of documents submitted to the Panel by the person or body referring the medical question pursuant to s 65(6B) of the Act does not, of itself, mean that every such submission, much less every part of every such submission, must be dealt with in the Medical Panel’s statement of reasons in such a way as to show that the decision-maker has engaged in an ‘active intellectual process’ in relation to the submission or part. The requirement to engage in an ‘active intellectual process’ is a requirement that applies only in relation to mandatorily relevant matters, factors or considerations. The identification of mandatorily relevant considerations for a statutory decision-maker depends on the terms of the relevant statute, not on the terms of whatever submission happens to be made to the decision-maker. Section 65(6B) of the Act does not make every submission, much less every part of every submission, a mandatorily relevant consideration for a Panel regardless of the terms of the submission. Further, as Wingfoot emphasises, it is not the function of a Medical Panel to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. Rather:
The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. [24]
[24][2014] VSC 664 [79] (citations omitted).
It was said that there was no active intellectual process undertaken by the Panel as the Panel:
·firstly, failed to take into account the past history of lying and thieving; and
·secondly, failed to take into account the current status of the lying and thieving.
The plaintiff submitted that the active intellectual process undertaken by the Panel only commences at page 9 of its reasons. That is where the Panel actively considers the various matters it had been told and uses that consideration to reach its diagnosis and to make its psychiatric assessment. The distinction is apparent in the wording of the paragraphs with the Panel ‘noting’ the plaintiff’s grandmother’s reports to various agencies of the plaintiff’s behaviour and of Dr Adler’s assessment. The Panel considered improvements to have been made with respect to aspects of the plaintiff’s behaviour.
The defendants submitted that the Panel clearly engaged in an active intellectual process as the Panel looked at behavioural and incontinence issues and arrived at conclusions, which, on a fair reading, demonstrated as much.[25]
[25]Transcript of Proceedings (n 15) 70 (Mr Harper).
The Panel’s reasons
The Panel in its reasons, quoted the plaintiff’s background in terms of foster care arrangements and the involvement of Child Protection.[26]
[26]Reasons for Determination (n 2) 9.
In paragraph 3 the Panel’s language changes from ‘noting’ certain matters to ‘considering’ the plaintiff’s consistently good achievement at school and that her social engagement indicated that she is not suffering from foetal alcohol syndrome or autism spectrum disorder. It was argued that this variation of language demonstrates an active consideration compared to a ‘noting’ or recording of certain factors.
Similarly, in paragraph 4, the Panel ‘considered’ that over the 12 month period with the improvement in incontinence, mood stability and behaviour there was no evidence of various other psychiatric conditions, namely oppositional defiant disorder, conduct disorder, attention deficit hyperactivity disorder or post-traumatic stress disorder.[27]
[27]Ibid.
Level of enquiry evidencing active intellectual engagement
It is observed that from this point onwards there is no reference to the lying and thieving. What was submitted by the plaintiff, and I accept, that what the Panel has done is recite various histories that have been given at various points but not engage in an active intellectual process about the history of lying and thieving.
That the Panel did not ask Ms Wheat or the plaintiff about the lying and thieving allows a conclusion to be inferred that the Panel omitted to engage in an active intellectual process about this matter. The Panel otherwise would have asked about it. It is the absence of enquiry that directs me to conclude the Panel’s omission of active intellectual engagement.
The Panel’s task required it to consider the GEPIC[28] and failing to engage with the lying and thieving behaviour potentially affects its assessment as measured against the GEPIC. The evaluation of the psychiatric impairment in the various factors that go to a mental function assessment such as intelligence, thinking and perception, includes behaviour. Behaviour that is destructive, distressing or aggressive is specifically noted in the GEPIC. There is little question that lying and thieving falls within the scope of disruptive behaviour. ‘Mild’ behaviour of that nature falls in the 10-20% category and ‘moderate’ falls in the 25-50% category, bearing in mind that if the plaintiff gets a score of 10% or more she would effectively meet the threshold in issue required pursuant to the Act.
[28]The Wrongs Act 1958 (Vic), s 28LI mandates that regard is to be had to the GEPIC.
The plaintiff submitted that once a matter is considered a mandatory consideration, the decision must be made on the basis of the most current information available.[29] Part of the criticism of the Panel’s lack of intellectual engagement was a lack of intellectual engagement with the current status of this behaviour. In this regard reliance was placed on the Wheat Affidavit. As previously noted, Ms Wheat deposes that she and the plaintiff were not asked about the plaintiff’s current status of lying and thieving.[30]
[29]Peko-Wallsend (n 14) [20].
[30]Ms Leanne Wheat, ‘Affidavit’, Filed in SLG (by her Litigation Guardian, the Secretary to the Department of Health and Human Services) v Dr Jude James & Ors, S ECI 2020 01277, 24 March 2021, [6].
The Panel’s reasons record that by contrast, the plaintiff is asked about her incontinence. Ms Wheat gives an updated history of the plaintiff’s temperament, her conduct with her sister, and how she is going at school. Ms Wheat confirms that the incontinence had not occurred in the past year. This is an active engagement by the Panel in relation to other aspects of the plaintiff’s behaviour that had previously been problematic. However, there is nothing of that nature in relation to the lying and thieving and that is confirmed by the Wheat Affidavit.
Contemporaneity of materials and assessment
One point of difference between Dr Adler’s assessment and that of the Panel was that the materials before Dr Adler in relation to the lying and thieving were much more contemporaneous to the date of his assessment. Dr Adler had seen the plaintiff in September/October 2018 and he obtained a contemporaneous history of the lying and thieving as being an ongoing problem. Dr Adler recorded that he had a discussion with the plaintiff’s paternal aunt who told him that the plaintiff likes to steal and had stolen make up, had stolen something from Kmart and had been taken to the police station. This lying and thieving was contemporaneous at the time Dr Adler saw the plaintiff. Dr Adler therefore had the current status before him.
However, by the time the Panel examined and interviewed the plaintiff over a year later the issue was not raised. It appears there was an assumption made, or an oversight by the Panel to interrogate this issue.
The Panel’s onus to make enquiries
I do not accept the submission made on behalf of the defendants that if the lying and thieving was a material matter Ms Wheat or the plaintiff would have raised the matter themselves without being asked about it. I do not accept it is the task of either the plaintiff nor her carer to ensure that the Panel’s task is properly undertaken by it. This proposition is supported by the Court of Appeal in Chang v Neill:
As a matter of common sense, where a medical panel requires a worker to attend an examination for the purpose of obtaining information to assist it to answer the medical questions referred to it, the panel must direct and guide the discussion with the worker to ensure that the information that the panel considers relevant is elicited from the worker. In such a case, the panel could not simply leave it to the worker to determine what information should be provided to the panel. Rather, the panel must ask such questions as it considers necessary to enable it to provide an informed professional opinion on the medical questions.[31]
[31]Chang (n 18) [52].
A similar observation was made in Schmael v Leach.[32] In that case, the worker had told the medical panel that she was booked in for an MRI but the Panel did not ask or try to obtain a copy of the result. Justice Richards said that whilst it may have been advisable for the worker to have provided the MRI results to the panel, “the Panel had a statutory function of providing an informed opinion answer to the referred medical questions.”[33] Because the Panel’s function was adjudicatory, not adversarial, it fell to the Panel to ensure that it was supplied with all relevant material. Parties before the Panel did not bear this onus of proof.
[32][2020] VSC 562 (‘Schmael’).
[33]Ibid [42].
I conclude it is for the Panel to determine whether it required further information to form its opinion; thus it was not for Ms Wheat or the plaintiff to volunteer the information absent questioning about it. Having concluded it was a material and relevant factor the onus was on the Panel to make the appropriate enquiry.
No requirement that the Panel would have come to a different determination
It is not necessary for the plaintiff to show that the decision would have been different had the information been taken into account. As Justice Macaulay held in Maribyrnong City Council & Anor v Malios & Ors:[34]
‘It is enough that, but for the error, the decision might have been different.’ (Original emphasis)
[34][2014] VSC 452 [32].
I reject the defendants’ submission that the lying and thieving behaviour is irrelevant to the psychiatric disorder (i.e. reactive attachment disorder) that the Panel diagnosed. I am unable to conclude on the evidence before me that lying and thieving behaviour is irrelevant to that psychiatric disorder. It is relevant to the impairment assessment but also to the Panel’s assessment of what psychiatric condition was manifest in the first place. It may be that a different psychiatric condition would have been diagnosed had lying and thieving been taken into account as the counsel for the plaintiff submitted.[35]
[35]Transcript of Proceedings (n 15) 36–37 (Ms Kaye).
Unreasonableness
The plaintiff argued that the Panel’s failure to enquire into the current status of lying and thieving constituted unreasonableness.
In Schmael v Leach, Justice Richards accepted that one form of legal unreasonableness was in making a decision “without attempting to obtain information that is obvious, readily available and centrally relevant to the decision to be made. Put another way, ‘a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could apply sufficiently to the outcome to constitute a constructive failure to exercise jurisdiction’.”[36]
[36]Schmael (n 33) [37] (citing Minister for Immigration and Citizenship v SZIAI [2009] HCA 39).
In Wei, Justice Nettle said that:[37]
….where it is obvious that material is readily available which is centrally relevant to the decision to be made and the decision-maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction.
[37]Wei (n 18) [49].
In the context of this proceeding, the significant history of past behaviour in relation to lying and thieving including involvement with the authorities was relevant to the plaintiff’s behavioural status.
The essence of this argument relies on the same factual basis as the failure to take into account a relevant consideration ground above.
Given my findings above, it is strictly unnecessary to consider this ground but there is much force in it.
Procedural Fairness
In the context of the lying and thieving basis, the plaintiff argued that there was a lack of procedural fairness in the Panel’s failure to ask Ms Wheat or the plaintiff about the current status of the lying and thieving.
Kioa v West is authority for the need to adopt fair procedures, which are appropriate and adapted to the circumstances of the relevant case.
Procedural fairness…conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements…[38]
[38](1985) 159 CLR 550, 585.
What is required to acquit procedural fairness will depend on the facts and circumstances of the particular case. As the plaintiff put forward, the failure to allow the plaintiff the opportunity to explain (or to have explained on her behalf by Ms Wheat) the current status of her behaviour in respect of the lying and thieving was a matter important to the Panel’s assessment.[39]
[39]SLG (by her Litigation Guardian, the Secretary to the Department of Health and Human Services), ‘Plaintiff’s Submissions in Reply’, Filed in SLG (by her Litigation Guardian, the Secretary to the Department of Health and Human Services) v Dr Jude James & Ors, S ECI 2020 01277, 24 March 2021, 7 [25] (‘Plaintiff’s Submissions in Reply’).
The factual situation in question here is the inverse of what is the more commonly argued case such as Barrett Burston Malting Co Pty Ltd v Kotzman,[40] to which the defendants have referred.
[40][2013] VSC 248.
The question of procedural fairness arises in such a case where a decision maker has diagnosed or concluded something that was unexpected and did not give the parties an opportunity to consider that diagnosis or conclusion or to comment on it prior to the Panel making its decision.
In this case before me, in effect, it is a failure to enquire and provide an opportunity to explain the current status which is argued to be the foundation of a breach of procedural fairness. If it is up to the Panel to effectively control the process and to ask the questions to elicit the relevant information and if they do not do so, it could be argued that the deprivation of an opportunity to be heard amounts to a breach of an obligation to afford procedural fairness.
In Ucar v Nylex Industrial Products Pty Ltd, Justice Redlich said that:
….assessment of whether the matter to which the procedural fairness relates could possibly have affected the decision. It will have done so where the procedural fairness went to an issue that was in controversy that was material to the decision. If such a connection is identified, it is immaterial what, if any, actual effect the procedural fairness had upon the decision-maker.
….once the applicant establishes “the possibility” of a different outcome had there not been a denial of natural justice, relief will only then be refused if it would be futile to grant a new hearing is the same outcome would be inevitable.[41]
[41][2007] VSCA 181, 520–521 [79]–[80].
The defendants argued that the procedural fairness ground reverts to the same key issues raised in the relevant consideration ground; i.e. that the Panel did not ask the very specific question. The defendants submitted that what the plaintiff was arguing was that for the Panel to have afforded procedural fairness it needed to ask the very specific question in relation to the current status of the plaintiff’s lying and thieving. The defendants criticise the plaintiff’s case that the Panel ought to have gone down to such specifics.
In my view, the category of behaviour being lying and thieving was at a level of more than generality that the Panel ought to have enquired about it specifically. The Panel had enquired about other specific behaviours so that it would not have been onerous or difficult to have asked about this behaviour also. The failure to ask or enquire into that behaviour deprived the plaintiff of an opportunity to have the current status, and ultimately the question of the correct diagnosis and the permanency of her psychological or psychiatric state to be properly assessed.
Error of Law
It was submitted that by not taking into account the lying and thieving, particularly as required under the GEPIC, the medical panel erred in law.
This ground was included in the plaintiff’s written submissions and was repetitive of what has already been outlined in this judgment.
Given what I have already concluded on the grounds set out above it is unnecessary to deal with this issue further.
Permanence of the Plaintiff’s condition
The second factual theme of the plaintiff’s argument which underpinned its grounds of review was whether the Panel took into consideration the permanence of the plaintiff’s continence and various other behavioural improvements that were reported to it.
The plaintiff argued not that the Panel should have asked Ms Wheat more about these issues but should have applied its expertise to the facts at hand; that is, that there had been past problems in these areas and that some of these problems have abated with the passing of time. The Panel should have applied its expertise in giving consideration to whether the abatement of some of those problems may or may not have been a permanent state of affairs.
The Panel asked the plaintiff about physical problems and they asked her about incontinence.[42] This issue was confirmed with Ms Wheat.
[42]Reasons for Determination (n 2) 7.
Ms Wheat was asked about the plaintiff’s general behaviour and she told the Panel that the plaintiff’s temperament was not too bad although she got upset at times, particularly in response to being attacked by her sister. She talked about the relationship between the sisters. She also said that at school the plaintiff was doing well and aside from speech difficulties, had made friends. There were no reports of misbehaviour or discipline problems or sexualised behaviours. The Panel had taken a history as to the present status of those matters that had been problematic previously. These problems had been previously significant for the plaintiff. This is evidenced by both the reasons and the material that were before the Panel.
Whilst the Panel considered, in reaching its diagnosis, the improvements in school, the social engagement and improvement in continence, the mood, stability, school behaviour and behaviour with carers, it does not record any reference to permanence or consideration of permanence of these improvements.
Permanence under the GEPIC
The plaintiff argued, and I agree, that the consideration of permanence is a mandatory relevant consideration that goes to jurisdiction. It is recorded specifically in the GEPIC as a consideration; that is, whether the behaviours are transient or persistent.
The GEPIC lists five categories of “Behaviour” based on an assessment of the percentage level of impairment of a subject.[43] The first category (0 to 5% impairment) is “normal to slight” and includes “transient disturbances”.
[43]GEPIC (n 7) 1010.
Under the second category which is mild (10 to 20%), reference is made to “persistent behaviour” and under the moderate category (25 to 50%) there is a reference to whether the conduct is ”occasional” or whether the antisocial behaviour is repeated.[44] The ideas of persistence or permanence of the behaviour permeate the assessment of behaviour under the GEPIC.
[44]Ibid.
In its submissions to the Panel, the defendants submitted that the plaintiff “has a psychiatric injury arising from [her mother’s] death, it is not clear whether that injury can be considered stable and permanent”.[45] The permanence issue was raised by the defendants and in the submissions in reply in this proceeding.
[45]Plaintiff’s Submissions in Reply (n 39) 10 [33].
Under s 28LB of the Act the definition of impairment is permanent impairment.
The question was raised (somewhat rhetorically by the plaintiff) as to how it could be that the Panel can determine the permanence of impairment if it does not consider the permanence of the underlying behaviours in conduct which form part of its assessment of that impairment?
The Panel did conclude that the degree of impairment resulting from the psychiatric or psychological injury is permanent but is not 10% or more.
I agree with the plaintiff’s submissions that the Panel ought to have considered the permanence or otherwise of those improvements in the relevant behaviours to consider whether there was any impermanence, which might give rise to an impairment. This is particularly so given that the plaintiff was (at the time of the assessment) a nine year old girl.
There is no obvious reference or discussion of permanence of the changes in behaviour save that in the ultimate conclusion the condition was permanent but was less than the 10% threshold. This strongly suggests to me that there is a lack of intellectual engagement as required with this issue of permanence or impermanence.
The attack by the plaintiff is against the Panel’s consideration to individually look at the different components which made up the examination of the plaintiff’s behaviour – incontinence, mood and capacity to moderate behaviour. There was no active consideration of whether these aspects were permanent. There is a gap in the assessment of the current condition in the context of the history and forming a belief or opinion as to permanence of the behaviours. Whilst there was a finding of overall permanence of her condition, the connection between the assessment and this finding is not possible to discern.
A medical panel’s reasons are not to be examined like a statute or with an ear attuned to error and a panel does not have to deliver reasons of perfection. There does however need to be a course of logic which can be discerned. It is difficult to see how the Panel could have formed a view about the permanence of the behaviours in the context of the GEPIC and make a sufficiently logical connection with their conclusion statement that the impairment is permanent but less than the threshold percentage.
Given the findings already made it is not necessary to consider this limb of the plaintiff’s grounds of review in depth.
I observe that as I intend to allow the application for review and quash the Panel’s certificate of determination and remit the referred medical question back to a differently constituted panel the observations about setting out the assessment of the panels’ assessment with greater reference or in the context of the GEPIC would provide greater reliability in the assessment task the legislation requires.
Remittance to a differently constituted panel
Counsel for the plaintiff argued that if the decision were quashed the matter should be remitted to a differently constituted panel.[46]
[46]Transcript of Proceedings (n 15) 51-54 (Ms Kaye).
This was not opposed by the defendants[47] and I am the view that this course is appropriate.
[47]Ibid 54-55 (Mr Harper).
Conclusion
The Panel’s reasons in this matter record information about the plaintiff’s behavioural history including reference to a history of lying and thieving as well as other behavioural issues. It is difficult to divorce a history of lying and thieving from other behavioural issues in coming to a conclusion about a psychological or psychiatric state. This is particularly given the applicability of the GEPIC notwithstanding any limitation in respect of its application to children as the tables, which identify behaviour are expected to be applied.[48]
[48]GEPIC (n 7).
The mere noting of particular history places the consideration of the plaintiff’s current state and an expression of opinion as to its permanence in an historic context. This is not the end of the task of the Panel. The Panel must take into account the history of the plaintiff, conduct an examination, consider the relevant medical records and reports of other medical practitioners and come to its own conclusion bringing to bear its own expertise.
Whilst the Panel records that it did those tasks, analysis of the reasons demonstrate the Panel was in error in the omission of addressing the impact of the history of the lying and thieving behaviour, the current status of this and the other problematic behaviours.
The Panel was also in error in failing to enquire as to the status of the problematic behaviours. The Panel must consider any and all of the dysfunctional behaviour, which is brought to its attention. It should actively engage with these issues and interrogate and form a view. This view should be expressed with sufficient legibility and reason such that a court on review can be satisfied that the Panel has engaged appropriately with the task at hand and can have confidence that all mandatory relevant considerations have been taken into account and the plaintiff has been afforded a reasonable opportunity to have her medical condition assessed in accordance with the legislation.
I am not convinced that this has occurred in this case. The Panel did not take into account whether or not there was an ongoing behavioural issue in respect of the history of lying and thieving nor did they appear to engage with an examination of whether this dysfunctional behaviour was ongoing such that a proper diagnosis could be made and that the question of permanence of this behaviour could be properly established.
In my view, the critical enquiry cannot be stated so generally as ‘behavioural issues’. To state the consideration so broadly as this opens the Panel up to risk of error as it is likely that the subsets of adverse behavioural issues, which do go to a proper assessment of the psychiatric or psychological state of the plaintiff will inevitably be overlooked, as has occurred here.
I do not regard the attack on the Panel’s findings and reasons as one of an attack on its medical expertise. The exploration of the manner of the task as it can be gleaned from the reasons cannot be properly categorised as a de facto merits review.
The application for review will be allowed on Grounds 1 and 2, being the failure to take into account relevant considerations and failure to accord procedural fairness. An order quashing the certificate of determination of the Panel comprised of the fourth and fifth defendants will be made and the referred medical questions will be remitted to a differently constituted panel to be reconsidered in accordance with law.
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