Spencer and National Disability Insurance Agency
[2024] AATA 3507
•2 October 2024
Spencer and National Disability Insurance Agency [2024] AATA 3507 (2 October 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2022/5934
Re:Peter Spencer
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member K Buxton
Date:2 October 2024
Place:Brisbane
Pursuant to paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that the Respondent take into account the reports of Psychiatrists, Dr Oo, dated 17 February 2023 and Dr Chalk, dated 4 May 2023, Professor Steadman, Orthopaedic Surgeon, dated 21 March 2023 and Dr Campbell, Neurosurgeon, dated 6 March 2017 (with attached further statement), and any other evidence on which the Applicant wishes to rely.
...................................[SGD].....................................
Senior Member K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – Harman undertaking – procedural fairness – decision under review set aside and remitted for reconsideration with directions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Mental Health Act 2016 (Qld)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
Aged Care Quality and Safety Commissioner v Double Bay Aged Care Pty Ltd [2024] FCA 242
Blandon and Comcare [2018] AATA 4614
BQRW and Federal Commissioner of Taxation [2014] AATA 410; (2014) 63 AAR 503
Commonwealth of Australia v Beale [1993] FCA 294; (1993) 30 ALD 68
Confidential and Commissioner of Taxation [2013] AATA 382
Control Investment Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
FBJV and National Disability Insurance Agency [2021] AATA 913
Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Hearne v Street [2008] HCA 36
JLZT and National Disability Insurance Agency [2022] AATA 541
Johnson and National Disability Insurance Agency [2023] AATA 1989
Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57
Minister for Immigration & Multicultural Affairs v Perth City Mission [2000] FCA 397
National Disability Insurance Agency v Davis [2022] FCA 1002
QDKH by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189Schwass and National Disability Insurance Agency [2019] AATA 28
Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286
Superannuation Warehouse Australia Pty Ltd and Australian Securities and Investments Commission [2019] AATA 88TMVJ and National Disability Insurance Agency [2022] AATA 2053
REASONS FOR DECISION
Senior Member K Buxton
2 October 2024
INTRODUCTION
In this application Mr Peter Spencer (“the Applicant”) seeks review of a decision of the National Disability Insurance Agency (“the Respondent”) declining his request for access to the National Disability Insurance Scheme (“the NDIS”).
The Applicant is 44 years of age and lives in Queensland. In March 2022 he made a request to become a participant in the NDIS. The request was declined and in April 2022 he sought internal review of that decision. Following a review under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”), a delegate affirmed the earlier decision on 6 July 2022. The Applicant applied to the Tribunal for review and contends that he meets the access criteria prescribed under section 21 of the NDIS Act.
LEGISLATION RELEVANT TO THE ACCESS REQUEST
To become a participant in the NDIS, a prospective participant must satisfy the access criteria, which are set out in subsection 21(1) of the NDIS Act:
21 When a person meets the access criteria
(1) A person meets the access criteria if:
(a) The CEO is satisfied that the person meets the age requirements (see section 22); and
(b) The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) The CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
There is no dispute that the Applicant meets the age requirements in section 22 of the NDIS Act and the residence requirements in section 23 of the NDIS Act. The Applicant did not submit that his circumstances met the early intervention access criteria set out in section 25 of the NDIS Act and there was no evidence before the Tribunal that would indicate that the Applicant met the criteria. Therefore, the issue for determination by the Tribunal is whether the Applicant meets the access criteria that is set out in section 24 of the NDIS Act.
Section 24 of the NDIS Act states:
24 Disability requirements
(1) A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
The Minister may make rules prescribing matters pursuant to subsection 209(1) of the NDIS Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (“the Access Rules”) form part of the legislative scheme. Operational Guidelines written by the Chief Executive Officer of the Respondent also assist staff to make decisions in accordance with the NDIS Act.
The Access Rules provide guidance about when an impairment is permanent or likely to be permanent as is required by subparagraph 24(1)(b) of the NDIS Act. Rules 5.4 to 5.7 provide as follows:
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
These provisions are concerned with the permanence of the “impairment” rather than the condition necessarily.[1] Difficulty accessing treatment, including its affordability, does not necessarily mean that the treatment is unavailable for the purposes of rule 5.4 of the Access Rules.[2] However, in National Disability Insurance Agency v Davis (‘Davis’),[3] Justice Mortimer stated that, whilst affordability was not the only feature determining whether a treatment was “available”, it was a relevant consideration in determining whether the treatments were available to a particular individual,[4] and “whether a person can afford a treatment will form part of the factual circumstance a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access”.[5]
[1] Schwass and National Disability Insurance Agency [2019] AATA 28 [32], [35].
[2] Ibid [46]-[47].
[3] [2022] FCA 1002.
[4] Ibid [138].
[5] Ibid [139].
Rule 5.4 of the Access Rules requires the Tribunal to be positively satisfied of a negative before it can be satisfied of permanency. In other words, there must be evidence before the Tribunal that positively demonstrates that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.[6]
[6] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), rule 5.4.
SUBSTANTIVE ISSUE
The criteria set out in subsection 24(1) of the NDIS Act are cumulative, meaning that all requirements must be met for a person to become a participant in the NDIS.
The Applicant has stated that he has a complex sequalae of mental health issues and, in his access request, he identified post-traumatic stress disorder (PTSD) as his main disability with, adjustment disorder, dyslexia, and attention deficit/hyperactivity disorder as other disabilities that substantially affected his life. In his review application, lodged with the Tribunal on 11 July 2022, the Applicant identified the following reason why he claimed that the reviewable decision was wrong: “I have recently come off an ITO due to my mental health. I required access to service in order to live a normal and fulfilling life”. An ITO is an involuntary treatment order made under the Mental Health Act 2016 (Qld) (“the Mental Health Act”) and, as the evidence before the Tribunal demonstrates, the Applicant was subjected to such an order in early July 2022. Consistent with the content of his review application, the evidence made available to the Tribunal during the hearing, including the Applicant’s own oral evidence, focussed on his mental health, rather than any physical disabilities or conditions.
There are five mandatory requirements that a prospective participant must satisfy in order to meet the “disability requirements” as set out in paragraphs 24(1)(a) to (e) of the NDIS Act (reproduced below). The Respondent accepted that the Applicant meets the requirements in paragraphs 24(1)(a) in that he has an unspecified psychosocial impairment. However, the Respondent did not accept that there is any definitive diagnosis of PTSD, adjustment disorder or ADHD, or that the Applicant has satisfied section 24(1)(a) in relation to any recognised and diagnosed disorder. The Respondent contended that the Applicant does not meet subparagraphs 24(1)(b), (c) and (e) of the NDIS Act for any impairment. The Respondent further contended that the Applicant does not meet section 24(1)(d) in relation to any permanent impairment.
Although there were a number of aspects to the Respondent’s case, at the heart of that case was the contention that the Applicant was likely suffering from a schizoaffective disorder and that any impairment arising from this condition was not permanent because the Applicant had not explored all known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. The Respondent submitted that the treatment not yet explored was twofold: firstly, ceasing the use of prescription cannabis, and secondly, trialing medication variously described as anti-psychotic or psychotropic. The Applicant stated that he did not have a schizoaffective disorder, that he would not cease using medicinal cannabis and that he would not trial anti-psychotic or psychotropic medication. He submitted that he had PTSD, and other issues affecting his mental health, that gave rise to a permanent impairment, and that he otherwise met all the disability requirements under section 24 of the NDIS Act.
PROCEDURAL ISSUE
A hearing took place on 30 and 31 July 2024, 1 August 2024 and 12 August 2024 via the electronic platform Microsoft Teams. The Applicant was self-represented and the Respondent was represented by counsel. The Tribunal was invited by the parties to consider the oral and documentary evidence received during the hearing together with a hearing bundle (‘HB’) filed by the Respondent following consultation with the Applicant, which included the documents provided by the Respondent under section 37(1) of the Administrative Appeals Tribunal Act (Cth) 1975 (“the AAT Act”) and some, but not all, of the documents lodged by the parties with the Tribunal. The Tribunal was also invited to consider additional documents, hear from additional witnesses, and consider various written submissions including those filed after the hearing.[7]
[7] Hearing Bundle (HB) filed on 16 July 2024; Applicant’s written submissions filed 12 August 2024, 24 August 2024; Respondent’s written submissions filed 16 August 2024, 3 September 2024, 20 September 2024. The Respondent’s post-hearing submissions do not appear to have been settled by counsel.
It is necessary to traverse three pertinent aspects of the conduct of this review that have left the Tribunal in a position where, at the conclusion of the hearing, it is not able either to affirm the reviewable decision or to set it aside and substitute its own decision. These are:
(a)The failure by the Respondent to include four medical reports in the hearing bundle, two relating to the Applicant’s psychosocial issues and two relating to physical conditions;
(b)The failure by the Applicant to bring to the attention of the Tribunal physical conditions which he asserted met the access criteria until after the evidence in this case had closed; and
(c)The capacity of the Applicant to have represented himself.
The question arises whether, in the circumstances that have unfolded before and during the hearing, the Tribunal should now re-open the evidence in this case. Alternatively, the Tribunal has also considered whether the correct or preferable outcome in this case is to set aside the decision and remit the matter for reconsideration by the Respondent, under section 43(1)(c)(ii) of the AAT Act, with a direction that the Respondent considers additional relevant information.
For the reasons set out in more detail below the Tribunal has concluded that:
(a)It is not possible to be satisfied that the hearing to date has been procedurally fair;
(b)Based on the evidence available to date and the manner in which the hearing proceeded, the Tribunal has not reached a level of satisfaction that the Applicant does satisfy the Access criteria and cannot therefore affirm the decision under section 43(1)(a) of the AAT Act; and has not reached a level of satisfaction the that the Applicant does not satisfy the Access criteria and cannot, therefore, formulate a decision under section 43(1)(c)(i) of the AAT Act to that effect;
(c)It is not possible to remedy the defects in the hearing without a completely fresh hearing, and the Tribunal does not have the power to conduct a fresh hearing;
(d)It is not appropriate to re-open the evidence having regard to the broad scope of the re-opened issues;
(e)Therefore, the matter should be remitted to the Respondent for reconsideration in accordance with a direction that all available evidence be taken into account; and
(f)The Applicant, with the assistance of his representatives and family, may choose instead to withdraw the current request and make a new request in which he can raise all the issues he has identified following the close of evidence in this case, and have these matters considered afresh by the Respondent.
The procedural issues which have led to these findings became apparent to the Tribunal only on the final day of the hearing, and after the oral evidence of all witnesses was complete. At that point, the Applicant raised concerns about a denial of procedural fairness arising from various medical reports being excluded from a hearing bundle. The Applicant informed the Tribunal during his closing submissions that two reports prepared by Psychiatrists for the purpose of a personal injuries claim, that had been recently resolved by agreement between the parties and had not been included in the hearing bundle. These reports were prepared by Psychiatrists, Dr Oo on 17 February 2023 and Dr Chalk on 4 May 2023 and had been lodged on behalf of the Applicant on 8 September 2023. As these documents contained information about the Applicant’s mental health, they were determined to be relevant to the review and received by the Tribunal on the final day of the hearing.[8] However, the Tribunal notes that the evidence during the hearing had proceeded without access to these reports, and neither party had the opportunity to test the contents of the reports either by questioning the authors or by putting relevant parts of the reports to any other witnesses. The Applicant also informed the Tribunal of the existence of two other reports that had been lodged on behalf of the Applicant on 8 September 2023, being a report of Professor Steadman, Orthopaedic Surgeon, dated 21 March 2023 and a report of Dr Campbell, Neurosurgeon, dated 6 March 2017 with attached further statement. These reports related to physical injuries sustained by the Applicant in motor vehicle accidents.
[8] Exhibits 4 and 5.
The hearing bundle had been prepared and lodged by the Respondent following consultation with the Applicant, in accordance with a pre-hearing direction made by the Tribunal. More is said below about how those reports came to be excluded. After the hearing, the Applicant’s concerns were taken up by his parents, on his behalf. An application was made for the evidence to be re-opened and the Tribunal received written submissions from the parties.[9] In the course of determining the application to re-open, the Tribunal first considered whether the evidence before the Tribunal would be sufficient to establish that the Applicant had met the access criteria, therefore obviating the need for any additional evidence.
[9] Respondent’s written submissions dated 3 September 2024; Applicant’s written submissions dated 24 August 2024.
Available Evidence
The Applicant gave oral evidence at the hearing that was consistent with his statement of lived experience, provided to the Respondent on 15 November 2023.[10] That statement identified the Applicant as a “44-year-old male who has recently been diagnosed with a disability” and contained a summary of the Applicant’s circumstances relevant to his request for access to the NDIS and related to his stated impairments from PTSD, adjustment disorder and autism. He described the impacts on his life from avoidance of conflict, anxiety, anger, low mood and poor self-image. He identified his son, Aaron, as his informal support and stated that his Aunty Sandra also provides limited emotional support.
[10] HB 19, p. 216.
The Applicant gave oral evidence during the hearing about the issues in his statement. The Applicant did mention in his evidence that he had been involved in a number of motor vehicle accidents but did not advance a case at the hearing that he had physical injuries or ongoing pain issues that were relevant to his request for access and did not give any detailed evidence about any such issues. That approach was consistent with the issues identified by him in his review application following the involuntary treatment order. During the hearing the Applicant frequently referred to his complex sequalae of mental health issues and identified PTSD as his main disability, with additional impacts from other mental health symptoms and conditions.
On 1 July 2022 Dr Marissa Previtera, Psychiatrist, signed an inpatient treatment authority under the Mental Health Act to admit the Applicant for treatment under the care of the Royal Brisbane and Women’s Hospital Authorised Mental Health Service. He was noted as presenting with psychotic symptoms in the context of significant psychosocial stressors. His presentation was noted at the time to be elevated, agitated and grandiose and a psychotic illness was present, requiting involuntary treatment to alleviate risk of harm to himself and to others. The notes of Dr Vickers, Psychiatric Registrar at the Royal Brisbane and Women’s Hospital, dated 7 July 2022 (during that inpatient admission) included an observation to the effect that the Applicant’s use of medicinal cannabis was a contributing factor to his presentation.[11]
[11] HB 27, p. 537.
The evidence available to the Tribunal demonstrates the likelihood that the Applicant’s use of medicinal marijuana likely contributed to his mental health presentation which led to the involuntary treatment order and his involuntary admission at the Royal Brisbane Hospital. The negative effects of ongoing marijuana use upon patients with mental health conditions, such as those experienced by the Applicant, were expressed in the evidence of Psychiatrists Dr Can, Dr Pala Valappil, Dr Oo, Dr Moore and Dr Chalk and in the reservations identified by Dr Jip and the observations made by a number of doctors during the period of admission of the Applicant at the Royal Brisbane Hospital.
The evidence also demonstrated that the Applicant does not intend to cease using marijuana. He stated that he has a prescription, that it is his right to use marijuana and that he believes it has been “lifesaving” for him. The Applicant does not accept the correctness of the majority of the views expressed by the doctors whose opinions were presented to the Tribunal. The effect of his case about the appropriateness of his use of medicinal cannabis was that he has been prescribed marijuana by a different doctor and that should be the end of it. He did not produce any documents authored by the prescribing doctor or make her available to give evidence to the Tribunal. When asked during the hearing if his medicinal marijuana prescription was for pain, he replied that it was not, and was instead prescribed for symptoms of PTSD. He did not indicate until the final day of the hearing that pain was an issue for him, and that he wished to adduce evidence about his pain through the reports of Professor Steadman and Dr Campbell.
The Tribunal notes that the Therapeutic Goods Administration (‘TGA') guidelines state that medical cannabis is not appropriate for a patient with a previous psychotic or concurrent active mood or anxiety disorder. Dr Jip stated, during the hearing, that the Applicant fell with this definition and therefore his prescribing doctor should be taking into account whether or not marijuana is prescribed to the Applicant. There was no evidence presented to the Tribunal about what information the Applicant has provided to his prescribing doctor.
There was no evidence before the Tribunal of a definitive diagnosis that the Applicant suffers ongoing PTSD. The Applicant insisted that he has PTSD, but that is some distance from evidence that would allow the Tribunal to reach a level of satisfaction in that regard. The Tribunal notes that just because an expert was not able to arrive at that conclusion does not mean the Applicant does not have PTSD: he may well have this disorder. However, some expert evidence raised doubts as to the correctness of the diagnosis, and offered differential diagnoses, or indicated that additional information would be required in order to be certain. Others indicated that it did not matter for treatment purposes because of other diagnosed conditions that required a different treatment regime. Where PTSD was discussed, it was either not able to be diagnosed on the information available or thought not to be the correct diagnosis for the Applicant or noted as having been self-reported by the Applicant. In some cases, it was noted that the Applicant had PTSD symptomology, or an exacerbation of childhood symptoms, but no definitive evidence was presented that the Applicant currently has a diagnosis of PTSD.
For example, in the report of Dr Adem Can, Consultant Psychiatrist, dated 3 December 2021,[12] he noted the Applicant reported he was diagnosed with an adjustment disorder by Dr Moore and had been diagnosed with PTSD and autism in childhood. Dr Can did not arrive at those diagnoses himself. He stated that the Applicant had been using medicinal marijuana for nine months. He was experiencing traumatic flashbacks, difficulty sleeping and anger issues. Dr Can stated that he presented with elements of depression and PTSD symptomology and was impacted by recent stresses and noted that he did not appear to have psychotic symptoms. Dr Can did not give oral evidence at the hearing.
[12] HB 25, p. 359.
Prior to the hearing the Applicant’s general practitioner, Dr Paul Jip, provided answers to questions provided by the Respondent in relation to the Applicant.[13] These answers included the following information:
1.The Applicant is currently treating for anxiety/depression and complex PTSD.
2.He has been managed with psychiatry and psychology input including a compulsory inpatient hospital treatment order at the Royal Brisbane and Women’s Hospital. He currently uses medicinal Cannabis.
3.The outcome of these treatments is that they maintain is relatively stable condition and reduce likelihood of relapse.
4.The Applicant suffers poor mood, poor sleep, poor concentration, reduced energy and reduced appetite. He also has a predisposition of anxiety.
5.His prognosis is unknown.
[13] HB 22, p. 258.
Dr Jip did not diagnose the Applicant with PTSD and, during the hearing, he stated that he did not endorse his treatment of his mental health issues with medicinal cannabis, although he noted that this was a choice the Applicant was free to make.
Dr Jatheesh Pala Valappil, Consultant Psychiatrist, provided a report dated 9 November 2023,[14] in which he opined that the Applicant was presenting with a psychotic illness, schizoaffective disorder, which could be partly worsened by his ongoing use of medicinal cannabis hence, positing that the Applicant should not be using this medication.
[14] HB 20, p. 218.
Dr Thomas Moore, Psychiatrist, prepared a report dated 10 February 2021, in which he noted evidence of childhood impact upon the Applicant of complex PTSD, and that the Applicant had a history of substance abuse, including of marijuana. He suggested a number of differential diagnoses, suggesting that more information was required to be certain. Dr Moore offered the Applicant low dose medication (Periciazine) used to combat severe anxiety and aggression in place of cannabinoid or opioid preparations and advised the Applicant to avoid stimulant preparations. There is no evidence before the Tribunal that the Applicant took up that suggested treatment.
It is not necessary for the Tribunal to express any concluded view about the evidence. The Tribunal merely observes that the evidence of a depressive disorder, coupled with a psychotic illness such as schizoaffective disorder, and a personality or mood disorder, are consistent throughout the available evidence. These are not the conditions for which the Applicant has been seeking treatment. The Applicant’s preferred treatment, of medical marijuana, is not recommended for the treatment of such disorders in any medical evidence available to the Tribunal.
The Applicant invited the Tribunal to reject any parts of the evidence that demonstrated that he may have a schizoaffective disorder, or that he may have had a psychotic episode prior to his hospital admission under the involuntary treatment order. The Tribunal does not consider that there was any proper basis to reject that evidence, despite the Applicant’s urging to the contrary. The Applicant may not regularly present with psychotic symptoms but this does not lead to the conclusion that he had not been suffering such symptoms when observed, over a period of days, by a number of medical doctors on staff at the psychiatric unit of the Royal Brisbane Hospital.
The Applicant, and some of his family members, gave evidence about the circumstance of the involuntary treatment order. The effect of the Applicant’s evidence was that his admission took place because of a conspiracy between his ex-wife and the Queensland Health and the Queensland Police Service. Troublingly, some family members gave evidence consistent with the Applicant’s grandiose theorising along these lines. It is not, therefore, apparent that the Applicant’s informal supports are assisting the Applicant to reality-test the veracity of these unhelpful thoughts. Instead, his son and his aunt, who were asked about their recollection of the relevant events, were very much convinced, in the same vein as the Applicant, that the involuntary treatment order and resulting hospitalisation had all been a terrible mistake. Given the Applicant’s aggressive and dominant affect, observed not only by the Tribunal during the hearing but by almost every medical specialist who has assessed or treated him, it is perhaps unsurprising that his family are not prepared to have difficult conversations in which the Applicant’s version of reality is tested. The Tribunal observes that the Applicant would benefit from the kind of assistance from his informal supports that would allow him to gain insight into his condition. The Tribunal notes that the Applicant’s mother and stepfather, who travelled from England to support the Applicant, have now been appointed to make decisions, including of a medical nature, on his behalf.
The conclusions expressed by the many treating doctors at the Royal Brisbane Hospital were consistent with conclusions expressed by the other doctors whose opinions have been put before the Tribunal, to the effect that the Applicant has a schizoaffective disorder, a probable personality disorder and has psychotic symptomology prior to his involuntary hospital admission. The overwhelming preponderance of the evidence that has been placed before the Tribunal to date is to the effect that medicinal marijuana is not therapeutic for the Applicant and is a factor contributing to the Applicant’s ongoing acute symptoms. The treatment protocol recommended for the Applicant upon his discharge from the Royal Brisbane Hospital is consistent with the recommendations of the other medical witnesses. This included the cessation of medicinal marijuana and the taking of psychotropic medication. The Applicant made abundantly clear in his evidence that he does not intend to do either of these things.
Dr Pala Valappil expressed the opinion in his report that treatment the Applicant may receive for PTSD is irrelevant because, in his opinion, the Applicant is suffering from a psychotic illness for which he will need treatment under the Mental Health Act because the Applicant lacks the capacity to consent to treatment. He further stated:
“He probably will require a few weeks of inpatient treatment to assess his mental state, in a setting, where he does not have any access to any psycho-active substance, which in his case is medicinal cannabis. He will require antipsychotic medication and probably a mood stabiliser. A depo-preparation of anti-psychotic medication may be required.”
Of course, outside steps that may be taken under the Mental Health Act, for the protection of the Applicant and others, is entirely a matter for the Applicant to choose whether he engages in any aspect of the recommended treatment protocols. Despite the concerns he expressed during the hearing, the Tribunal has no role in ordering that he does so. The issues are relevant only because exercising his right to choose not to do so will impact the Applicant’s ability to access the NDIS.
The Tribunal considered whether the additional psychiatric reports, received on the final day of the hearing, may have assisted the Applicant to satisfy the criteria. However, whilst both of those reports mention PTSD, the reports themselves do not assist the Tribunal to a finding that the Applicant has permanent impairments. Whilst the doctors did not give evidence at the hearing, the following key aspects of their reports are relevant.
The report of Dr Khine Oo, dated 17 February 2023, was prepared in the context of the Applicant’s claim against the relevant insurers for damages for personal injuries following two car accidents in 2019 and 2020. Dr Oo noted symptomology of PTSD from the Applicant’s childhood, but identified the Applicant’s broader pre-existing mental health conditions as:
(a)Childhood impact of post-traumatic stress disorder;
(b)Narcissistic personality disorder;
(c)Alcohol use disorder;
(d)Cannabis use disorder; and
(e)Cocaine use disorder.
Dr Oo stated that, as a result of the first and second motor vehicle accident, his childhood PTSD symptoms were exacerbated and his narcissistic personality disorder was aggravated. He also suffered adjustment disorder with a depressed mood arising from the first accident. As a result of the second motor vehicle accident, he also developed a major depressive disorder and a panic disorder.
Dr Oo stated that the Applicant had been treated with antidepressants previously for his depressed mood, anxiety and PTSD symptoms and that treatment to date was adequate and reasonable. He recommended psychological intervention with a clinical psychologist to address his depression, anger and the aggravation of the childhood PTSD symptoms, together with anger management therapy and cognitive behaviour therapy targeting trauma, anger and narcissistic personality vulnerabilities. Dr Oo noted that the Applicant was hostile during the assessment, acted with an air of superiority and displayed an inflated sense of self-importance and accomplishment. He was observed to be dysphoric, irritable and angry. He showed insight into his depression but little insight in relation to his personality vulnerability and childhood trauma. Therefore, this report suggests that the Applicant was not, at the time, seeking treatment for the underlying causes of his psychosocial issues because he lacked insight into those causes.
In the report of Dr Chalk, dated 4 May 2023, he observed that there seemed to be some difficulties with the Applicant’s history, noting that he had reported history of PTSD stemming from his childhood but that this conflicted with his reporting to Dr Chalk. Dr Chalk noted that the Applicant displayed both sadness and very marked anger during the assessment. He alluded to some paranoid ideas but did not consider that he any delusional beliefs.
Dr Chalk considered that the Applicant had a major depressive disorder and did not consider that an additional diagnosis of PTSD would assist. He noted elements of significant personality difficulties but, unlike Dr Oo, did not diagnose a personality disorder. Given what Dr Chalk described as an untreated, very significant depressive illness, there was no evidence that the use of medicinal marijuana was in any way therapeutic. Dr Chalk noted that the Applicant was very unwell and appeared to have been unwell over a significant period of time in which attempts to engage him in treatment appear to have not been successful.
Whilst the Tribunal has accepted these reports into evidence, and they should have been available at the outset of the hearing, without the opportunity to hear oral evidence from these two doctors, it is difficult to see how the opinions of Dr Oo and Dr Chalk would assist the Applicant’s case.
Dr Jip, the Applicant’s treating general practitioner, also stated that the Applicant has no insight into his situation, and that “his reality is not in our reality”. He stated that the Applicant would benefit from a Psychiatrist but that he cannot maintain a relationship with a Psychiatrist for long enough to benefit. Various doctors noted that the Applicant would benefit from on-going psychology services, but it is difficult to see how these can be truly effective while the Applicant remains convinced that he does not have the type of disorder with which he has been diagnosed, and whilst he persists in the regular use of cannabis and declines to trial anti-psychotic and other medications.
Only the Applicant himself provided evidence that marijuana was therapeutically beneficial. He gave extensive evidence about how his son has set up a marijuana café where he and others can use prescription cannabis together in a social setting and gave evidence that he was very involved in the café, although his position on his level of involvement was not consistent throughout the hearing. By the fourth day, he stated that he was no longer involved. Although the Applicant stated that he may go for days or weeks without using marijuana, Dr Jip and Dr Oo expressed the view that he was addicted to it. Those views are consistent with the Applicant’s clear evidence that he has no intention of ceasing his use of marijuana and that he has built a life around this choice. Further, the Applicant stated that he has taken psychotropic medication in the past and did not like the way it made him feel. He stated that he has no intention of taking such medication again.
Subparagraph 24(1)(b) asks if the impairment(s) “are, or are likely to be, permanent”. It is correct to interpret the word “permanent” in subparagraph 24(1)(b) as “enduring”. Permanent does not mean “irreversible”, “untreatable”, or “long-term”. An impairment might be permanent despite “variation in intensity” or its episodic or fluctuating nature (subsection 24(2)-(3) of the NDIS Act). As explained by Justice Mortimer in Davis, the question for the Tribunal is whether the impairment(s) experienced by an individual has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis for the person’s lifetime.
Based on the available evidence, the Tribunal notes that while the Applicant has adduced evidence as to the existence of various condition, (although not necessarily those said to arise from PTSD), the evidence from which the Tribunal could be satisfied as to the permanency of the physical and psychosocial impairments from those conditions is inconsistent and unclear.
When having regard to possible treatment of impairments, under subsection 24(1)(b) and rule 5.4, it is not necessary that a cure be likely. Rather, the Tribunal must be positively satisfied that there are no treatments that would be likely to alleviate the Applicant’s impairments or ease their severity or impact.[15] That is precisely the likely impact of the twofold treatment protocol proposed for the Applicant in the medical evidence before the Tribunal. It is a real possibility that the Applicant’s psychosocial impairments arising from his mental health issues will not be enduring following regular and genuine engagement with the recommended treatment protocols. It may well be possible to treat the Applicant’s symptoms in the manner proposed in order the provide relief from their severity and, thus, to reduce or remove the existence of the impairment (as opposed to the existence of the diagnosis, or condition).
[15] FBJV and National Disability Insurance Agency [2021] AATA 913 (19 April 2021) at [117]; TMVJ and National Disability Insurance Agency [2022] AATA 2053 (30 June 2022) at [35].
The effect of the medical evidence is that the Applicant’s mental health would likely improve if he took the recommended steps. Rule 5.6 would be relevant in determining whether that medical treatment, and subsequent review, is to take place before a determination could be made by the Tribunal about whether the impairment is permanent or likely to be permanent.
Therefore, the evidence before the Tribunal to date, including the reports of Dr Oo and Dr Chalk, is not sufficient for the Tribunal to reach a level of positive satisfaction that the Applicant met the access criteria.
Additional Medical Reports
On the final day of the hearing, and after the evidence had closed, the Applicant informed the Tribunal of the existence, in addition to the reports prepared by Dr Oo on 17 February 2023 and Dr Chalk on 4 May 2023, of two other reports that had been lodged on behalf of the Applicant on 8 September 2023, being a report of Professor Steadman, Orthopaedic Surgeon, dated 21 March 2023 and a report of Dr Campbell, Neurosurgeon, dated 6 March 2017 with attached further statement. These reports related to physical injuries sustained by the Applicant in motor vehicle accidents.
It is not uncommon for documents to be exchanged between the parties and lodged in the Tribunal but, ultimately, not relied on in a substantive review. There may be any number of reasons, including relevance, importance and the availability of the authors as witnesses that may lead a party to a forensic decision not to rely on a document. However, in this case, it appears that the Applicant did not make such a forensic decision but was, instead, persuaded by the Respondent that the reports from his personal injuries’ litigation would not be permitted to form part of the evidence in this case. All four reports were prepared for the purpose of litigation arising from those motor vehicle accidents. They did not form part of the hearing bundle because, in November of 2023, the Respondent had informed the Applicant, in writing, that the reports were impacted by a “Harman Undertaking” and that it followed from this that the documents could “not be considered” in this review. During the hearing, the Respondent initially asserted the correctness of this position and the Tribunal expressed the view that the Respondent’s basis for asserting this position was incorrect.
The Respondent’s asserted position that a Harman undertaking applied in respect of those four reports is not supported by the available material. It is clear that the Tribunal’s General Practice Direction could not apply to the four reports. Part 5 of that Practice Direction contains a re-statement of the long-established “Harman undertaking”, as considered by the High Court in the matter of Hearne v Street (‘Hearne’).[16] However, the relevant paragraphs of that Practice Direction set out the basis upon which an obligation may be owed by a party to proceedings in the AAT in respect of documents obtained by them under compulsion in such a proceeding. As the four reports were obtained by the Applicant in proceedings in a state court, and not in the AAT, Part 5 has no work to do here.
[16] Hearne v Street [2008] HCA 36 ‘Hearne’.
In relation to the more general application of the obligation, the majority of the High Court in Hearne set out the following principle and explored circumstances in which it may cease to be relevant:[17]
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits…
It is common to speak of the relevant obligation as flowing from an "implied undertaking”.
[17] Ibid [96]-[97].
The court also noted that, whilst described in the language of an implied undertaking, the parties owed a substantive obligation to treat the documents in this way.[18] The Court described the broad types of material disclosed to which this principle applies, including documents produced on subpoena, documents produced pursuant to directions, witness statements and affidavits.[19]
[18] Ibid [106].
[19] Ibid [96].
In this case, it appears on the face of the four reports that they were either procured by the Applicant himself or given to him by the defendant in those proceedings. As there is no basis to conclude they were obtained through any coercive evidence-gathering process, no undertaking or obligation of the kind identified in Hearne[20] would be owed by the Applicant which may prevent the use of the four reports in this review. Even if the documents were lodged pursuant to a court order, two of the reports were lodged by the Applicant himself (and have not, therefore, been received by him from another party to litigation,) and the other documents were created following an examination in which he apparently willingly participated. It is not clear from the available evidence how any undertaking or substantive obligation was owed by the Applicant in relation to the documents but, even if that were the case, the documents are likely publicly searchable on the relevant Court file. If an undertaking was owed in relation to those reports, it was not for the benefit of the Respondent or owed in this proceeding. It is therefore unclear why the Respondent inserted itself into the question whether reliance on a document would place the Applicant in a breach, particularly when the Respondent’s conduct had the effect of ensuring that the reports did not form part of the evidence available to the Tribunal. It was a matter for the Applicant to determine whether his reliance on a document was affected by an undertaking and to consider how best to approach the issue. Great care should have been taken by the Respondent in the circumstance to ensure that relevant information was not withheld from the Tribunal, and that is particularly so when the Applicant is not legally represented.
[20] [2008] HCA 36 [96]-[97].
The two reports of the Psychiatrists were admitted into evidence on the final day of the hearing. This remedied the non-inclusion of those two reports in the hearing bundle. However, it is difficult to say how the earlier parts of the hearing may have been conducted differently if the parties had been aware that these documents would be before the Tribunal. It is possible that the authors of the reports would have given oral evidence, and possible that parts of their reports may have been put to other witnesses for comment. This uncertainty gives rise to a concern on the part of the Tribunal that simply re-opening the evidence and allowing further evidence to be admitted will not provide the parties with the same opportunity to present their case as they may have had if those two reports had been included in the hearing bundle from the beginning. However, if that were the only concern, consideration of the Applicant’s re-opening application would have been a simpler exercise.
The two further reports, relating to the Applicant’s physical injuries, have not yet been received by the Tribunal as part of the evidence in this case. The next question which arises is whether the evidence should be re-opened to allow for those two additional reports to be received as evidence, whether further oral evidence should be received and, if so, what impact the late receipt of any of the four reports may have had on the parties’ ability to participate in a hearing that is procedurally fair.
Although the AAT Act does not deal expressly with re-opening after a hearing is complete, the Tribunal approaches such applications as being within the implicit power of the Tribunal to control its own process[21] and having regard to the Tribunal’s obligation to ensure each party is given a reasonable opportunity to present his or her case.[22] The Tribunal may, in its discretion, determine whether, as a matter of fairness, the Applicant’s request to re-open the hearing should be granted,[23] but does not have an unqualified obligation to do so whenever asked.[24]
[21] AAT Act s 33(1)(a); Superannuation Warehouse Australia Pty Ltd and Australian Securities and Investments Commission [2019] AATA 88 at [59] per DP Forgie.
[22] AAT Act s 39(1).
[23] Superannuation Warehouse Australia Pty Ltd and Australian Securities and Investments Commission [2019] AATA 88 at [79] per DP Forgie; applying Re BQRW and Federal Commissioner of Taxation[2014] AATA 410; (2014) 63 AAR 503 at [60]; 519.
[24] Re BQRW and Federal Commissioner of Taxation [2014] AATA 410; (2014) 63 AAR 503 at [52]; 517.
In Confidential and Commissioner of Taxation[25]the Tribunal referred to a range of factors which may be relevant in the decision to reopen a concluded hearing:
[25] [2013] AATA 382 at [87]; followed in Re Blandon and Comcare [2018] AATA 4614 at [11].
(a) whether applicants have been given a reasonable opportunity to present their case (s. 39 of the AAT Act);
(b) whether the reopening of the hearing is consistent with:
(i)the Tribunal's obligation to conduct proceedings with as much expedition as a proper consideration of the matters before the Tribunal permits (s. 33 (1)(b) of the AAT Act); and
(ii)the Tribunal's overriding obligation to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick within the meaning of s. 2A of the AAT Act;
(c) the public interest that there should be finality in litigation including the effect of delay on the parties and other applicants seeking review before the Tribunal and to the appropriate use of public resources; whether the applicants made a deliberate choice not to adduce evidence "to obtain some forensic advantage";
(d) whether the application falls within one of the four classes of cases recognised by the courts when considering leave to reopen, being:
(i)where fresh evidence, unavailable or not reasonably discoverable before, becomes known or available;
(ii)where there has been an inadvertent error;
(iii)where there has been a mistake in apprehension of the facts; and
(iv)where there has been a mistake in apprehension of the law.
(e) whether the boundaries of the reopened issues "would be hard to define and difficult to protect".
Following the conclusion of the four-day hearing, the Tribunal gave each party an opportunity to make submissions as to what steps, if any, ought to be taken by the Tribunal. The Applicant, through his parents, submitted that the Tribunal should proceed as follows:
(a)The evidence in the review be re-opened;
(b)In addition to the two psychiatric reports or Dr Oo and Chalk (already admitted), the two additional reports of Professor Steadman and Dr Campbell, also filed in the Tribunal on 8 September 2023, be admitted into evidence;
(c)The following witnesses who had already given evidence in this case be recalled to give further, unspecified, evidence in relation to the four reports: Dr Yip (General Practitioner), Ms Amber Roberts (Mental Health Social worker), Dr Bryden (Neuropsychologist), Dr Moore (Psychiatrist) and Mr Michael Gerber (Psychologist); and
(d)The authors of all four reports filed on 8 September 2023 be called to give evidence in the review.
The effect of these submissions was that the Applicant wished to have the opportunity to put any questions to the witnesses who had already given evidence, and to another witness who had not been called at the hearing, that may be relevant to any of the Applicant’s treatment and conditions. Without identifying specific questions, or issues, the request amount to any re-opened evidence to take the form of a re-hearing of the entire case, including the possibility of further extensive cross examination by the Respondent of most, if not all, of the witnesses who had given oral evidence. There is no doubt that, without more specificity, the boundaries of the evidence following a re-opening of this nature would be hard to define and difficult to protect.
The Respondent provided submissions in response including the following contentions:[26]
1.The there is sufficient evidence before the Tribunal to determine whether the Applicant meets the access criteria pursuant to s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (“the Act”). That evidence already includes the reports of psychiatrists, Dr Khine Oo and Dr John Chalk. Subject to written closing submissions on exhibits 4 and 5 and any further oral submissions the Applicant may wish to make in relation to Drs Oo and Chalk’s reports, the decision could then be reserved.
2.Notwithstanding the Respondent’s position at paragraph 2 that there is sufficient evidence for the Tribunal to make its determination pending the further written closing submissions; the Respondent does not oppose the Applicant’s request to re-open the evidence, subject to six considerations (these are outlined below).
[26] Respondent’s written submissions dated 3 September 2024.
The six “conditions” contended for by the Respondent as appropriate for a re-opening, in the event that the Tribunal decided to do so, were:[27]
[27] Exhibits 4 and 5.
(a)First, the only reports that are considered are those of Drs Oo and Chalk. The Applicant has applied for access to the Scheme based on a psycho-social impairment only. As neither Dr Campbell nor Professor Steadman are psychiatrists, they are not qualified to comment on a psychiatric condition.
(b)Second, only Dr Paul Jip, general practitioner, and Dr Thomas Moore, psychiatrist should be recalled as the evidence of the other witnesses identified by the Applicant would not assist the Tribunal.
(c)Third, the Agency opposes the Applicant’s request that Mr Michael Gerber, psychologist, is called as a witness as he did not give evidence at the hearing and his evidence would be afresh and not limited to just the expert reports of Drs Oo and Chalk.
(d)Fourth, the Applicant, or his representatives, clarify who the allied health professionals are that the Applicant proposes to call. If Drs Oo and Chalk are the professionals the Applicant is referring to, the Agency opposes the calling of these witnesses to give evidence. Neither practitioner was asked to provide an opinion on whether the Applicant satisfied the criteria for the Scheme as this was not the basis on which those reports were obtained. Further, the Applicant did not:
·list Drs Oo and/or Chalk as witnesses he wished to call on his hearing certificate dated 4 April 2024;
·confirm them as witnesses he wished to call at the Directions Hearing on 18 June 2024;
·record them on the list of witnesses/contact details prepared by the Applicant and sent on 27 June 2024; and/or
·reply to the Respondent’s email on 12 July 2024 when the Respondent sought to confirm the list of witnesses the Applicant wanted called, in order for the Respondent to be able to take steps to facilitate these witnesses giving evidence at the Hearing.
The Respondent went on to submit that, inconsistently with its earlier stated opposition to the calling of Drs Oo and Chalk, to ensure procedural fairness to both parties, both Dr Oo and Dr Chalk would need to give evidence but submitted that, as the Applicant wished to call these witnesses, the Applicant should arrange for their appearance.
(e)Fifth, if the Tribunal decides to re-open the evidence and allow the Applicant to re-call his witnesses (whether all or some), to ensure procedural fairness is afforded to the Respondent, the Respondent wishes to recall Dr Pala Valappil to provide his opinion on the reports of Drs Oo and Chalk.
(f)Finally, if the Tribunal permits the evidence to be re-opened and witnesses re-called, those witnesses evidence should be limited only to the content of Drs Oo and Chalks reports and their opinions in respect of the issues before the Tribunal insofar as the disability requirements are concerned being the Applicant’s psycho-social impairment is (subsection 24(1)(a) of the Act) and the permanency of any impairment (subsection 24(1)(b) of the Act).
The Respondent submitted that, as an alternative to re-opening the evidence, and to ensure the Applicant had an opportunity to make further submissions in respect of the reports of Drs Oo and Chalk exhibits 4 and 5 (if the Applicant wished to do so), the Respondent could make short written submissions about those reports, following which there could be a short resumption of the hearing for the Applicant to make oral submissions in reply to the Respondent’s written submissions, with the Respondent reserving its right of reply to any oral submissions of the Applicant.
The complexity of the course of action proposed by the Respondent is indicative of the extent to which the hearing process to date has miscarried, but the Tribunal is not persuaded that proceeding as invited to by the Respondent will address all issues of procedural fairness. If these are not corrected, the decision may be infected with a jurisdictional error that would cause delay and expense to both parties if sought to be corrected on appeal. The Respondent’s submissions do not address the Applicant’s conduct or capacity, his physical issues raised on the final day of hearing (other than to submit that it should not be considered) or the fact that the oral evidence from all witnesses (not just those proposed to be recalled) has been received by the Tribunal without either party or the Tribunal having the benefit of the reports of Drs Oo and Chalk or those of Professor Steadman and Dr Campbell. The Respondent’s submissions do not address how evidence taken in a re-opened hearing can address procedural fairness concerns arising from the manner in which the hearing has unfolded, having regard to the revelations made on the final day.
The Respondent proceeded, in its written submissions, to “take issue” with any suggestion that it attempted to conceal the four reports that were not included in the hearing bundle. The Respondent submitted:
… it was for the Applicant to submit material he wanted considered by the Tribunal. The Agency has previously noted that the reports were commissioned for use in other legal proceedings which remained on foot. Since the closing submissions on 12 August 2024, the Agency has identified the letter sent to the Applicant (via his representative) on or around 8 November 2023 which states “We consider you may wish to seek your own legal advice on this issue”.
Further, the Respondent raised these reports as an item for discussion in its email of 11 June 2024 ahead of the Directions Hearing on 18 June 2024, however, despite the Agency’s efforts the issue was not addressed, and it was not raised further by the Applicant or the Tribunal. On 12 July 2024, the Applicant was emailed the proposed Index of the Tender Bundle and asked for his comments on the documents that were proposed to be submitted to the Tribunal and whether there were any changes he wished to make. A follow-up email was sent by the Respondent to the Applicant on 19 July 2024 to the proposed Hearing Bundle. The Applicant did not respond to either of the Respondent’s emails.
The Respondent informed the Tribunal on the final day of the hearing that it had intentionally decided not to include the four additional reports in the hearing bundle and that the Respondent had informed the Applicant by email, in November 2023, that the two reports could “not be considered” by the Tribunal because the documents were the subject of a “Harman undertaking” owed by the Applicant to the Court in his personal injuries’ litigation. Unfortunately, as previously canvassed, the Respondent’s assertion was not correct. It is unclear why the Respondent has not taken the opportunity in these submissions to acknowledge this error or to set out, in full, the correspondence sent to the Applicant so the context of the extract suggesting he take legal advice can be properly understood.
The Respondent’s submissions also suggest that it was a matter for the Tribunal to address whether the reports should be included, by raising this issue during a directions hearing. The Tribunal was somewhat surprised by this suggestion, which was made after the Respondent’s incorrect assertion that documents produced by the Applicant in these proceedings were subject to a Harman undertaking, in circumstances where the Respondent had not satisfied itself of the correctness of this assertion and failed to inform the Tribunal before or during the hearing of the position it had adopted. It is not clear to what “efforts” the Respondent was referring insofar as bringing to the attention of the Tribunal the fact that the hearing was proceeding without four reports lodged by the Applicant. It was also surprising that the Respondent informed the Applicant that such documents could “not be considered” in the review well before decisions were to be made about the documents that should be brought to the attention of the Tribunal, and in circumstances where the Respondent did not ever seek to correct its’ erroneous position. The effect of the Respondent’s incorrect assertion was that the documents were not included in the hearing bundle or brought to the attention of the Tribunal by the Respondent. It is unclear how the Tribunal could have been expected to be aware of the Respondent’s previous conduct in order address the issues that this conduct had created. The purpose of making a pre-hearing direction that a Respondent prepare and lodge a joint hearing bundle is to ensure that agreed documents are included, which prompts any disagreement between the parties about the content of that bundle to be brought to the Tribunal’s attention by the parties. However, it was not until the Applicant’s final submissions on day four of the hearing that the Tribunal was asked, by the Applicant rather than by the Respondent, to consider the four reports.
One of the Respondent’s bases for opposing the calling of Drs Oo and Chalk was the fact that the Applicant had not sought to include their reports document in the hearing bundle or mention them in his hearing certificate as witnesses that he wished to call. The submission is perplexing because, prior to the time the hearing certificate was completed, the Respondent had informed the self-represented Applicant that he could not rely on their reports. The Respondent did not seek to qualify this position, and inviting the Applicant to obtain legal advice on an issue on which it has pronounced so emphatically is not a proper basis on which the Respondent can resile from the impact of its conduct. The better course may have been for the Respondent to have ensured the accuracy of its own legal position in relation to the four reports before excluding them from the hearing bundle. In fact, the Respondent initially continued to maintain its position that the Applicant could not rely on those documents when the issue was finally raised by the Applicant on the final day of the hearing. It is therefore unsurprising, and of no assistance to the Tribunal, that the Applicant had not earlier urged the Tribunal to consider the documents or sought his own legal advice. It is also unclear how the Respondent’s conduct in this regard was consistent with its statutory obligation to assist the Tribunal to make its decision in relation to the proceeding.[28]
[28] AAT Act s 33(1AA).
The Tribunal indicated to the parties after receipt of their written submissions in relation to re-opening that it would also consider whether, in the circumstances that have arisen, the correct or preferable outcome in this case was to set aside the decision and remit the matter for reconsideration by the Respondent, under section 43(1)(c)(ii) of the AAT Act, with a direction that the Respondent considers the additional information and issues identified by the Applicant at the conclusion of the hearing. The parties were invited to provide any written submissions they wish to make as to whether that alternative outcome is the correct or preferable decision in this case, by close of business on Monday 23 September 2024. The Respondent provided further submissions[29] but the Applicant did not.
[29] Further Submissions of the Respondent dated 20 September 2024.
The Respondent submitted that the Tribunal should proceed to make a decision in this case and that the correct or preferable decision was to affirm the decision that the Applicant did not meet the access criteria. Curiously, despite the provision of an express power to do so, the Respondent submitted that it was “not open” to the Tribunal to remit the decision under section 43(1)(b)(ii) of the AAT Act. The Respondent argued that the Tribunal has jurisdiction to hear this matter and is required to conduct a review and make a decision under section 43 of the AAT Act taking into account any further material before it, even if that material was not before the original decision-maker.
The effect of the Respondent’s submission appears to be that the Tribunal can make any one of the types of decision prescribed by section 43(1) of the AAT Act other than to remit with directions. The further effect of the Respondent’s submission was to invite the Tribunal to make a final decision affirming the reviewable decision notwithstanding the want of procedural fairness generated by the conduct of the parties, including the Respondent’s own conduct.
The Respondent sought to rely on the following observation by Justice Lee in respect of the remittal power under section 43(1)(c)(ii) of the AAT Act, in Minister for Immigration & Multicultural Affairs v Perth City Mission at [23]:[30]
“… The power of the Tribunal to set aside a decision and remit the matter for reconsideration only arises where the Tribunal is unable to make, and has not made, a decision in substitution for the decision set aside. (See: Commonwealth v Beale [1993] FCA 294; (1993) 30 ALD 68 per Neaves J at 70.) Section 43(1)(c)(ii) is directed to a circumstance where the decision under the enactment has not been made where the Tribunal is of the view that it is unable to make the decision required by the enactment, for example, where a requirement or condition must be satisfied before a decision can be made (See: Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 10 AAR 13.) The terms of s43(1)(c)(ii) of the AAT Act enable the Tribunal to assist the decision-maker to whom the matter is returned by offering "directions or recommendations" that appear to be appropriate on the material before the Tribunal. Whether such "directions or recommendations" can fetter the exercise of a power vested in the person to whom the matter is remitted for determination under an enactment is unnecessary to consider. (See: Flick Federal Administrative Law 2nd ed 1984 at [1419].)”
[30] [2000] FCA 397.
In this case, if the Tribunal has determined that it is unable to make a decision in this case, including as a result of the procedural unfairness arising from the Respondent’s conduct in relation to excluding the four reports, this would be a circumstance in which it is proper to exercise the remittal power, consistent with those observations of Justice Lee. The Tribunal notes that, in that case, the Tribunal had “exhausted” its decision-making power and, having set aside the decision, should have substituted its own findings rather than inviting the Minister to do so. In this case, the Tribunal has not “exhausted” that power but, rather, is unable to arrive at a decision due to the conduct of the parties.
The Respondent contended the Tribunal had all the necessary material before it, including the extensive oral evidence and submissions, to engage in the exercise required of it and is now required to make the decision on the Applicant’s application and that to not do so, and instead remit the matter to the Respondent, would be a constructive failure to exercise its jurisdiction.[31] However, the Tribunal notes that it does not have all the necessary material before it. Further, the “classic statement” from the High Court’s decision in Miah[32] as to what constitutes constructive failure to exercise jurisdiction encompasses a misunderstanding of the nature of the review function, rather than the recognition of circumstances in which that review function has been rendered impossible to fairly complete. It is conceivable that the Tribunal could continue to hear further evidence in an open-ended way and until it has reached a level of satisfaction one way or the other about whether the access criteria have been met in this case. However, the Tribunal is not obliged to do so, particularly when the AAT Act provides an alternative mechanism that provides a pragmatic solution to this unusual situation. Further, now that the Applicant has raised a new issue, even without regard to the concerns about his capacity to date, an undefined re-opened hearing process is unlikely to be either faster or fairer than remitting the matter for reconsideration.
[31] In apparent reliance upon the decision of Raper J in Aged Care Quality and Safety Commissioner v Double Bay Aged Care Pty Ltd [2024] FCA 242; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah 206 CLR 57 [80]; [2001] HCA 22 [80] ("Miah”).
[32] On which the Court relied in the decision of Aged Care Quality and Safety Commissioner v Double Bay Aged Care Pty Ltd [2024] FCA 242, identified in the Respondent’s written submissions relating to the remittal issue.
Applicant raising physical impairments
This review Applicant was filed in the Tribunal over two years ago. During that time, it has been case managed and directions have been made for the management of the hearing, including for the identification of relevant evidence to be collated into a hearing bundle. The Tribunal has already noted that it was proper to admit the two additional Psychiatrists’ reports. They are plainly relevant and should have been included in that bundle.
However, the other two reports relate only to the Applicant’s physical condition. The Applicant had not raised the issue of any physical impairments in his request for access or his review application. He had not sought to adduce any medical evidence about his physical conditions at any stage during the hearing, including during evidence he gave, and that given by his family, until that evidence was complete. His family and partner gave evidence about the impact of his mental health on his capacity and identified this as the basis upon which they understood that he was seeking access to the NDIS. His general practitioner, neuropsychologist, social worker and consultant psychiatrist have not given evidence about the Applicant’s physical conditions, nor about any function incapacity arising out of any resulting impairments.
That is not to say that it is necessary for a prospective participant to state which impairments give rise to a disability. The Respondent has submitted that the Applicant should be held to his case about his psychosocial impairments but the context of this is that he has submitted evidence to the Respondent about physical conditions and, following the actions of the Respondent, that evidence was not available during the hearing. Generally, merits review in the Tribunal is not a process that should be regarded as one that should be able to be won by tactics.[33] As the Full Court found in Grant v Repatriation Commission:[34]
“ An inquisitorial review conducted by the AAT ... is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant ...”
[33] Superannuation Warehouse Australia Pty Ltd and Australian Securities and Investments Commission [2019] AATA 88 at [76] per DP Forgie.
[33] AAT Act s 39(1).
[34] [1999] FCA 1629 [18] Merkel, Goldberg and Weinberg JJ.
More specifically to reviews relating to access to the NDIS, as Member Webb stated in JLZT and National Disability Insurance Agency,[35] “just as a reviewer under s 100 is not confined to consider supports put before them and a participant is not required to identify the particular supports sought on review,[36] so, too, a reviewer is not confined to consider only impairments placed before them and a prospective participant is not required to identify impairments in an access request or when seeking review”.[37] Of course, although the prospective participant is not required to identify the impairments, the Tribunal can only consider impairments about which there is available evidence, and where the parties have had a reasonable chance to test that evidence. In this case, the Applicant did lodge two reports about his physical conditions with the Tribunal but, following the intervention by the Respondent detailed above, those were not included in the hearing bundle or made available to the Tribunal before the evidence had closed. The Respondent has also participated in the case management of this review and, subject to the observations made about its conduct in respect of the four reports, was entitled to proceed to the hearing on the basis of the evidence identified by the Applicant as relevant, just as it would be entitled to test further evidence accepted if the case were re-opened.
[35] JLZT and National Disability Insurance Agency [2022] AATA 541 (25 March 2022).
[36] QDKH by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
[37] See also Johnson and National Disability Insurance Agency [2023] AATA 1989 at [77].
There is very little, if any, evidence before the Tribunal about the Applicant’s pain or any other physical ailments, other than what is contained in these two reports. Therefore, the late introduction of evidence relevant to the Applicant’s pain would lead the Tribunal to the consideration of an entirely different case. Although it cannot be said that this is a case of which the Respondent has not been put on notice, given it had access to the two reports in relation to the Applicant’s physical condition, it can be said that this is not a case that the CEO of the Respondent, through its delegate, has taken the opportunity to consider either the two reports at first instance or during the internal review process. The Tribunal also notes that the Applicant could have raised this issue in his access request, in his review application, during the case management process, at the commencement of the hearing or during his own oral evidence, but he did not.
Under the NDIS Act,[38] in the event that an access request is not successful and review rights have been exhausted, or when a request for access is withdrawn, a prospective participant may immediately advance a fresh request access, raising the same issues as in a previous request, or different or additional issues. Given that this option is available to the Applicant, the Tribunal has carefully considered whether it would be procedurally fair to allow the current review to proceed on the basis only of the mental health case raised by the Applicant and addressed by the Respondent, and, if the Applicant were not found to meet the access criteria, to allow any new issues to be determined afresh by the NDIA, with attendant review rights, should the Applicant wish to make a new request. In doing so, the Tribunal has had careful regard to the public interest in finality in proceedings and the resources utilised by this proceeding to date. However, the Tribunal has concluded that making such a final determination in this review carries with it the risk that the hearing process is not complete and does not meet the expectations of a Tribunal hearing as set out in sections 2A and 39 of the AAT Act. As additional and apparently relevant evidence has been identified, and given the context of the other issues raised in these reasons, the Tribunal is not prepared to determine that the evidence about the Applicant’s physical issues is irrelevant, or to proceed to a determination of the matter without it.
[38] NDIS Act s 19(2).
Capacity of the Applicant
For most, although not all, of the hearing the Applicant did not comply with directions from the Tribunal in relation to his own conduct, including in relation to the direction that he was to afford participants in the hearing basic courtesy. The Tribunal heard oral evidence from the Applicant, his son, his partner, aunt, mother and stepfather together with various medical and allied specialists. The Applicant was aggressive or rude on many occasions and repeatedly showed discourtesy to counsel and witnesses. By refusing to adhere to directions as to the basic ground rules to be observed during the hearing, the Applicant was disrespectful to the Tribunal. Despite this, the Tribunal gave the Applicant every opportunity to be heard and he did, at times, apologise for his conduct. He was, at times, dysregulated, abusive and threatening. On occasions he left the hearing by ending the Microsoft Teams link without notice. Nonetheless, he insisted on continuing to represent himself. A party is entitled to the reasonable opportunity to present its case[39] and the Tribunal has no mechanism by which it can determine that a party who wishes to represent themselves lacks the capacity to do so. Therefore, the hearing continued in this way for four days.
[39] AAT Act s 39.
After the evidence had closed, and during final submissions, the Applicant delivered a tirade of expletives directed towards counsel for the Respondent and did not further participate in the hearing. Counsel for the Respondent maintained a patient and professional approach throughout the hearing, including at this difficult juncture. The Applicant later emailed the Tribunal stating, amongst other things, that he lacked capacity to continue to represent himself. His family produced an enduring power of attorney giving to his parents the power to make decisions on his behalf in relation to his health and financial affairs. He did not assert that he had lacked capacity at earlier stages of the proceeding and his family did not raise any issues relating to the Applicant’s capacity during the four days of hearing.
However, in light of the Applicant’s behaviour during the hearing and particularly on the final day, the Tribunal remains alive to the prospect that, if the outcome of this review were unfavourable to him, the Applicant, through the family members acting as his attorneys, may assert that the Applicant had lacked capacity to represent himself in the earlier parts of the hearing and that this made these parts of the hearing unfair. It is difficult to see how re-opening the evidence in this case could cure such a defect, because, should this review continue, the Tribunal will be required to have regard not only the evidence yet to be given, but also the evidence that has already been given in the setting of the Applicant’s dysregulated, discourteous, aggressive, abusive and threatening behaviours.
The Tribunal does not have power to order that an entirely new or fresh hearing be conducted in this review or determine that this evidence can be put to one side. It is therefore not clear how any capacity issues which impacted the hearing can ever be remedied by taking more evidence, when the evidence to date must still form part of the material before the Tribunal to be considered. However, the Tribunal does have an obligation to ensure that every party has the opportunity to present their case, and real doubt now exists as to whether the Applicant’s apparent capacity issues may have impacted the opportunity for both parties to do so.
The Tribunal notes that, from 14 October 2024, the AAT will be replaced by a new Tribunal established under the Administrative Review Tribunal Act 2024 (Cth) (“the ART Act”). Pursuant to section 67 of the ART Act, provision is made for the appointment of a “litigation supporter” where the new Administrative Review Tribunal is satisfied that a party does not have decision-making ability and the appointment is considered necessary. The appointment is made to support the party during the proceeding and may be made whether or not the party has a guardian or representative appointed under another law. These provisions, which have not been available to the Tribunal under the current AAT Act, will no doubt provide a welcome salve for the procedural difficulties faced in a case such as this and may be relevant in any future review for the Applicant.
Conclusions as to Procedural Fairness
The Tribunal has summarised the evidence to date and considered the application to re-open the evidence, which would facilitate the Tribunal hearing from additional witnesses and, potentially, hearing from witnesses who have already given evidence. For the reasons given, the Tribunal has decided to refuse all aspects of the application to re-open the evidence. The Tribunal is not in a position to determine whether the access criteria are met as the hearing has not fully explored all the issues relevant to that request. Further, as a result of both parties’ conduct and forensic choices, and as a result of the Applicant’s behaviour, the hearing has not been undertaken in a way that the Tribunal is satisfied has been procedurally fair. The Tribunal cannot cure this defect by simply re-opening the evidence.
The Tribunal is satisfied that it has the power to set aside the decision and remit the matter for reconsideration under subsection 43(1) of the AAT Act. That section confers on the Tribunal an amplification of the powers and discretions exercisable by the decision-maker.[40] The Tribunal notes the following passage from Commonwealth of Australia v Beale[41] per Justice Neaves in which, having identified the Tribunal’s decision-making powers in subsection 43(1) of the AAT Act, his Honour stated:
“There is, thus, an express power in the Tribunal to set aside a decision under review and to remit the matter for reconsideration. However, it may only do so where, in order to give effect to the conclusions to which the Tribunal has come, it is appropriate to set aside the decision under review but the Tribunal is not in a position to formulate a decision in substitution for the decision set aside.”
[40] Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [33 – [38] per Kirby J endorsing the observations of Davies J in Re Control Investment Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 91 per Davies J.
[41] [1993] FCA 294; (1993) 30 ALD 68 at [70].
The Tribunal has formed the view that, in relation to the Applicant’s request for access, it is proper that further relevant evidence be received and considered before that request is determined, and that the Tribunal is not presently able to formulate a decision. In arriving at this conclusion, the Tribunal has been careful to explore whether the taking of further evidence could assist the Tribunal to arrive at such a formulation but has decided that it would not, in the unusual circumstances that have arisen in this case. The Tribunal does not accept the Respondent’s submission that this course of action would amount to a constructive failure by the Tribunal to exercise its jurisdiction. Rather than attempt to cure the procedural miscarriages in the hearing to date, the most pragmatic use of the Tribunal’s powers is to remit the matter to first allow the Respondent the opportunity to consider all, rather than only some, of the evidence. Therefore, the Tribunal has determined that the preferable course is to set aside the reviewable decision and remit the matter for reconsideration by the Respondent, with a direction that the Respondent take into account the four additional reports, and any other evidence on which the Applicant wishes to rely. If the Applicant is dissatisfied with the decision when reconsidered, he can pursue his review rights. He has the alternative pathway of simply withdrawing the current access request at any time making a new access request in which he can identify, from the outset, any physical conditions which may be relevant to the access criteria.
If the Applicant’s parents, or other competent adult, continue to represent the Applicant in any further decision-making processes, this will alleviate the concern expressed by the Tribunal in relation to capacity and the new powers in the ART Act may assist, should the need arise for further external review. As to the conduct of the proceeding to date, the Tribunal had been mindful of the entitlement of both parties to a hearing that is procedurally fair and otherwise consistent with the Tribunal’s statutory objective and is not satisfied that continuing the review, following the hearing as it has transpired to date, can meet that objective.[42] It follows that the Tribunal is unable to determine, in this review, whether the Applicant meets the access criteria in the NDIS Act.
[42] AAT Act s 2A.
DECISION
Pursuant to paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that the Respondent take into account the reports of Psychiatrists, Dr Oo, dated 17 February 2023 and Dr Chalk, dated 4 May 2023, Professor Steadman, Orthopaedic Surgeon, dated 21 March 2023 and Dr Campbell, Neurosurgeon, dated 6 March 2017 (with attached further statement), and any other evidence on which the Applicant wishes to rely.
I certify that the preceding 93 paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.
.............................[SGD]..................................
Associate
Dated: 2 October 2024
Dates of hearing: 30 and 31 July 2024, 1 and 12 August 2024
Date of final submissions: 20 September 2024
Applicant (in person): Mr Peter Spencer
Counsel for the Respondent: Ms B Stringer
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