TMFD and Secretary, Department of Social Services (Social services second review)
[2023] AATA 2523
•14 August 2023
TMFD and Secretary, Department of Social Services (Social services second review) [2023] AATA 2523 (14 August 2023)
Division:GENERAL DIVISION
File Number: 2021/7536
Re:TMFD
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:14 August 2023
Place:Brisbane
The decision under review is affirmed.
.............................[SGD]...........................
Member D Mitchell
Catchwords
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
TMFD and Secretary, Department of Social Services [2022] AATA 3432
REASONS FOR DECISION
Member D Mitchell
14 August 2023
INTRODUCTION
On 12 April 2021, TMFD (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1] On the Applicant’s claim form, she listed her disabilities or medical conditions that significantly affect her ability to work which included major depression and PTSD.[2]
[1] Exhibit 1, T Documents, T21, pages 144-146, Disability Support Pension – Online Claim.
[2] Exhibit 1, T Documents, T21, page 144, Disability Support Pension – Online Claim.
The Applicant’s claim was rejected on 3 May 2021[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[3] Exhibit 1, T Documents, T30, pages 234-235, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision. On 2 August 2021, an Authorised Review Officer (ARO) affirmed the decision.[4]
[4] Exhibit 1, T Documents, T25, pages 152-160, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 21 September 2021, the SSCSD affirmed the decision to refuse her claim for the DSP.[5]
[5] Exhibit 1, T Documents, T2, pages 3-7, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 14 October 2021.[6]
[6] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
Since making her application to the Tribunal, the Applicant has provided further medical evidence in support of her claim.[7]
[7] Exhibit 2, Hearing Book, A1-A7, pages 20-54; A10-A11, pages 72-78; A14-A15, pages 92-106, Medical Reports filed by the Applicant and R2, Supplementary T Documents, ST1-ST7, pages 124-147, various medical certificates and letters.
The Applicant had indicated that due to her mental health conditions, she was unable to participate in a Hearing of her application. Consequently, by consent, it was agreed that this matter could be adequately determined in the absence of the parties. The Tribunal agreed to review the reviewable decision in accordance with section 34J of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act).
On 17 October 2022, having considered the application “on the papers” the Tribunal, pursuant to section 42D of the AAT Act, the Tribunal remitted the application to the Respondent for reconsideration, with a recommendation that it sought an opinion from the Health Practitioner Advisory Unit (HPAU).[8]
[8] TMFD and Secretary, Department of Social Services [2022] AATA 3432.
On 30 November 2022, the Respondent completed its reconsideration of the application, having sought a HPAU report. The Respondent decided that the Applicant did not meet the DSP qualification requirements during the Relevant Period and as such affirmed the decision under review.[9]
[9] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment A, Decision on reconsideration dated 30 November 2022, page 194.
The Tribunal conducted Telephone Directions Hearings on 10 February 2023 and
6 March 2023. As a result, the parties were provided with the opportunity to provide further submissions and a Hearing by telephone was listed.
On 14 June 2023, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
At the conclusion of the Hearing, the Respondent sought leave to file written closing submissions. Consequently, the Respondent provided their closing submissions on
27 June 2023. The Applicant provided her closing submissions in reply on 13 July 2023.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of her claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for the DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant’s application.Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
(a)does the Applicant have a physical, intellectual or psychiatric impairment;[10]
(b)do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[11] and
(c)does the Applicant have a continuing inability to work?[12]
[10] Section 94(1)(a) of the Act.
[11] Section 94(1)(b) of the Act.
[12] Section 94(1)(c)(i) of the Act.
Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is ‘permanent’.[13]
[13] Section 6(3)(a) of the Determination.
The word ‘permanent’ takes on a specific meaning for the purposes of the DSP. To be considered permanent for the DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[14] As such, a condition could be considered permanent from the perspective of it being life-long but would not meet the definition under the DSP requirements.
[14] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[15]
[15] Section 6(5) of the Determination.
To be considered fully diagnosed under Table 5 of the Impairment Tables, which relates to Mental Health, requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[16]
[16] Table 5 of the Impairment Tables.
A condition is considered to be fully stabilised if:[17]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[17] Section 6(6) of the Determination.
Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[18]
[18] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after their medical history, in relation to the condition causing the impairment, has been considered.[19] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[20]
[19] Section 6(2) of the Determination.
[20] Section 8(1) of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[21]
[21] Section 94(3B) of the Act.
The Administration Act sets out that qualification for the DSP and, therefore, assessment of the relevant impairment ratings is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case, the start date for the DSP is the date the person becomes qualified.[22]
[22] Sections 41 and 42 of the Administration Act; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for the DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered; however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[23]
[23] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commenced on 12 April 2021, being the date the Applicant lodged her claim for DSP and ended 13 weeks later on 12 July 2021. The Tribunal is therefore, limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and, therefore, has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[24] The Respondent accepts that the Applicant has mental health conditions.[25]
[24] Exhibit 2, Hearing Book, R3, Respondent’s Amened Statement of Issues, Facts and Contentions, page 181, paragraph 44.
[25] Exhibit 2, Hearing Book, R3, Respondent’s Amened Statement of Issues, Facts and Contentions, page 181, paragraph 45.
The remaining substantive issues for the Tribunal to consider are:
(a)whether, within the Relevant Period, the Applicant’s mental health conditions attracted 20 points or more under the Impairment Tables; and, if so
(b)did the Applicant have a continuing inability to work?
MEDICAL EVIDENCE
There is a significant amount of medical evidence before the Tribunal that was not before the previous decision makers. In remitting the matter to the Respondent on
17 October 2022 and noting the Applicant’s vulnerability, the Tribunal considered that it would be preferrable for the Respondent to have the Applicant’s matter fully assessed by its Health Professional Advisory Unit (HPAU). The Tribunal noted that both Dr Ana Borges, the Applicant’s treating psychologist and Dr Alyssa Ryan, clinical psychologist provided an invitation to be contacted for further information.[26]
[26] TMFD and Secretary, Department of Social Services [2022] AATA 3432 at [49].
The Respondent sought an opinion in relation to the Applicant’s claim for the DSP from the HPAU. As a result, an initial HPAU report dated 7 November 2022[27] and supplementary HPAU[28] report dated 9 January 2023 were provided by Ms Trisha, clinical psychologist.
[27] Exhibit 2, Hearing Book, R3, Respondent’s Amened Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, pages 205-217.
[28] Exhibit 2, Hearing Book, R3, Respondent’s Amened Statement of Issues, Facts and Contentions, Attachment D, HPAU Report dated 9 January 2023, pages 218-221.
The Tribunal has had the opportunity to review the evidence before it in totality. The Tribunal considers that the summary of that evidence as outlined in the HPAU Reports completed by Ms Trisha after contacting the Applicant’s medical practitioners resolves the ambiguity of the evidence before the Tribunal. The Tribunal considers that the HPAU reports accurately outline the evidence before the Tribunal.
In the report dated 7 November 2022, Ms Trisha provided the following synopsis of her opinion:[29]
Based on the available evidence, the author opines that the condition of adjustment disorder can be considered fully diagnosed, but not fully treated and stabilised. No other psychological conditions had been diagnosed by a psychiatrist or medical practitioner with support from a clinical psychologist as at the qualification period. It is premature to conclude that no further significant functional improvement would occur at the time of qualification, however if it is conceded that her condition is considered fully diagnosed, treated and stabilised, the author opines that her level of functional impairment at the time of qualification is consistent with a 20 point impairment rating on Table 5 – Mental Health Function.
[29] Exhibit 2, Hearing Book, R3, Respondent’s Amened Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 206.
Ms Trisha outlined that she had made the following treating doctor, psychologist and other professional contacts in completing the report:[30]
-Attempted to call Dr Hebden, general practitioner on 27.10.22. No return call received at time of opinion submission.
- Phone discussion with Dr Butler, psychiatrist on 27.10.22.
- Phone discussion with Dr Ryan, clinical psychologist on 1.11.22.
- Phone discussion with Dr Borges, psychologist on 2.11.22.
[30] Exhibit 2, Hearing Book, R3, Respondent’s Amened Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 206.
In response to questions regarding whether the Applicant’s mental health conditions were fully treated and fully stabilised during the Relevant Period, Ms Trisha reported:[31]
[31] Exhibit 2, Hearing Book, R3, Respondent’s Amened Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, pages 207-2010.
a. Had [the Applicant] received reasonable treatment for her mental health condition during the qualification period?
[The Applicant] disclosed at a job capacity assessment (MHS Brisbane, 19.5.11) that she was receiving counselling in response to recent bullying at work, however no further details were available. [The Applicant] (9.2.17) subsequently declared herself ‘mentally and physically fit’ and returned to the workforce.
Dr Pidgeon (22.5.19) noted that stress was previously managed with ‘massage, relaxation and rest’.
[The Applicant] told the AAT1 (21.9.21) that she had seen psychologist, Ms Borges for 10 to 20 sessions over a four year period (2017-2021) and was finding it helpful. Dr Borges (18.10.19) advised that she was having ongoing ‘debrief sessions’ for the last few months in relation to lost employment and attempts to find further supervised practice. Medicare records (12.4.19 to 7.1.22) confirm 9 sessions of psychological intervention with Dr Borges from 24.3.20 to the end of the qualification period. Dr Borges (2.11.22) explained that as her consulting rooms were in the same building as the Women’s Community Aid Association, she had a number of informal contacts with [the Applicant] when she attended the association, often brief discussions at her office door. It was not until March 2020 that [the Applicant] was formally referred and commenced attending therapeutic appointments for psychological intervention.
Dr Borges (22.3.21) confirmed that past and current treatment entailed ‘talking therapy, psychoeducation and rebuilding social ties’. She recommended future treatment to continue ‘as above’ but also noted that [the Applicant] required medication review, intense psychological and practical support, assistance to regain her nursing registration and engagement in progressive exposure therapy.
Dr Hebden (23.3.21) advised that [the Applicant] was being treated with psychological therapies and it was planned that she continue with such psychological support.
[The Applicant] disclosed at employment services assessment (CI2525, 25.3.21) that she consulted a psychologist and general practitioner but she did not wish to take medication as she ‘is not a danger to anyone and doesn’t need it’.
[The Applicant] disclosed in phone discussion with authorised review officer (Lien, 2.8.21) that she had been seeing Dr Borges since 2018 and had frequent contact (daily to weekly) for support from other members of the Women’s Community Aid Association. She had support from her general practitioner, Dr Hebden and had consulted with psychiatrist,
Dr Butler for the first time in May 2021. She was awaiting a further appointment with Dr Butler. She had been referred to a wellness support group but was yet to commence. She was prescribed promethazine by her general practitioner one month ago (June 2021) and this was helping with sleep. She took no other medications.[The Applicant] told the AAT1 (21.9.21) that she was prescribed promethazine three months ago (June 2021) and took it once per week to help sleep, but was not taking any other medications. She had seen a psychiatrist one time.
Review of pharmaceutical benefits scheme patient summary (12.4.19 to 7.1.22) note that only antibiotics, eye, ear and corticosteroid treatments were dispensed during this period, with no psychotropic medications nor promethazine.
Dr Butler (27.10.22) advised that she consulted with [the Applicant] on two occasions. The first was an adhoc appointment when [the Applicant] presented to the medical centre in a distressed state on 12.5.21 and Dr Butler happened to be at the centre. [The Applicant] then returned for an appointment the following week following a request from her general practitioner to rule out any psychotic illness. Dr Butler was only able to diagnose adjustment disorder at that point. [The Applicant] advised that she did not wish to trial antidepressant medication but was happy to continue seeing her psychologist. Dr Butler explained it was reasonable to expect that if [the Applicant] had not made significant improvement with psychological intervention alone, that she would return for further psychiatric assessment to revisit diagnosis and explore alternative treatment options such as medication.
Outside the qualification period, Dr Hebden (26.10.21) confirmed that [the Applicant] was previously treated with psychological therapy, and was currently managed with GP appointments and support from her church community. Dr Hebden noted that [the Applicant] preferred not to take medication and may consider further psychological therapy in the future.
Consultation with a clinical psychologist, Dr Ryan (7.12.21) occurred well outside the qualification period and appears to have been conducted for diagnostic clarification rather than therapeutic intervention.
Hence, while [the Applicant] had engaged with her treating psychologist for nine sessions and had one session with a psychiatrist, she does not appear to have engaged in reasonable treatment as at the qualification period. Her limited response to psychological intervention would have warranted further review by a psychiatrist or clinical psychologist to determine whether the diagnosis remained accurate or whether comorbid conditions could be diagnosed and addressed.
b. Is there any further treatment you would consider appropriate for [the Applicant] to undertake in respect of that condition (whether or not recommended by her treating team)?
Dr Butler (27.10.22) confirmed that if [the Applicant] had not subsequently experienced functional improvement with psychotherapy alone, a further psychiatric assessment would have been beneficial to rule out any other underlying comorbid conditions and consider the addition of pharmacotherapy.
Dr Ryan (1.11.22) advised that there was a role for medication given [the Applicant’s] heightened physiological response and level of distress at assessment. Dr Ryan (1.11.22) advised that if she had been asked to provide therapeutic recommendations she would have also suggested a trauma focused treatment program, commencing with emotion regulation, trauma processing and then cognitive work.
The author considers that it would have been appropriate for [the Applicant] to explore pharmacotherapy options to assist in managing the intense physiological response and emotional distress [the Applicant] was experiencing. This would have potentially also helped her capacity to engage in and respond to psychological therapy while her stressors (work issues and litigation) were still occurring.
c. If such treatment were undertaken, can you conclude that significant functional improvement would be unlikely to result with further treatment?
No.
Dr Butler (27.10.22) explained that it was impossible to provide prognostic information without having a longitudinal assessment of [the Applicant’s] presentation and response to treatment. [The Applicant] did present as significantly distressed during her initial psychiatric consultation, however there were a number of situational factors contributing to such distress. [The Applicant] was not assessed as being psychotic and was provided with a working diagnosis of adjustment disorder. Further psychiatric assessment would have been warranted to confirm any comorbid conditions or underlying personality styles which may impact on treatment outcomes before concluding significant functional impact was unlikely.
Dr Hebden (23.3.21) advised that [the Applicant] had planned to continue to see her psychologist as she would require considerable support to be able to work and was not well enough to work now.
Dr Borges (22.3.21) opined that [the Applicant] needed assistance to regain her licence as a nurse and therapy to rebuild her trust in the workplace environment.
Program summary following participation in a disability employment services program (LBVTKZ38, 30.3.21) noted that there had been discussion of obtaining further qualifications as well as engaging in further counselling to widen [the Applicant’s] employment options.
Hence, during the qualification period, while identifying support needs, none of [the Applicant’s] treating professionals indicated that she would not significantly improve to enable a return to work in the future.
Adjustment disorder, by its own diagnostic criteria, is a time limited condition. The Diagnostic and Statistical Manual of Mental Disorders Fifth Edition Text Revision specifies that “Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.”
Prognostic information provided by Dr Ryan outside the qualification period relate to conditions not considered fully diagnosed during the qualification period. Dr Ryan (1.11.22) advised that it was reasonable to expect further improvement if [the Applicant] engaged in further treatment and a return to 15 hours per week work within two years could not be ruled out.
Long after the qualification period, Dr Borges (23.11.21) indicated that [the Applicant’s] PTSD had stabilised, being unlikely to improve further. Dr Borges did not address the adjustment disorder specifically. Dr Borges (2.11.22) confirmed that there were a number of situational factors impacting on [the Applicant’s] progress in treatment including unresolved legal disputes and grief responses. [The Applicant] had been impacted by past events and being triggered by further potential perceived acts, particularly in relation to her race, placed her at risk of further exacerbations.
At the Hearing, Ms Trisha gave evidence, by telephone, under affirmation which was consistent with her views set out in her written reports. In response to questions asked by the Respondent, Ms Trisha:
·Confirmed her full name and qualifications.
·Said that she provided her reports based on the documents that were provided to her and the conversations she had with the practitioners outlined.
·Said that the follow up reports of Dr Borges did not change the opinion expressed in her written reports.
·Said that she had asked Dr Ryan, Dr Butler and Dr Borges whether the Applicant had indicated that she did not want to take medication for religious reasons, and they said no.
·Said that both Dr Ryan and Dr Butler said there was a place for medication in the treatment of the Applicant’s mental health conditions.
·Said that Dr Ryan told her that the Applicant’s choice not to take medication was a personal choice not a religious requirement or restriction.
In response to questions put to her by the Applicant, Ms Trisha explained the process she undertook in forming her opinion and writing her reports.
APPLICANT’S EVIDENCE AND CONTENTIONS
At the Hearing, the Applicant gave evidence under affirmation and told the Tribunal that:
·Her conditions were fully diagnosed, treated and stabilised.
·She is a born again Christian and believes that the word of God, scripture and prayer have stabilised her condition.
·She cannot take medication or have a blood transfusion because of her religion.
·Dr Skinner diagnosed her adjustment disorder, not Dr Butler, that was a follow up.
·She gets encouragement and hope from the Church.
·She has studied all of her life.
·She is very articulate, cool, calculated, loving and kind.
·She can no longer work.
·Her mother had passed away and she is still mourning her.
·She has not worked for 5 ½ years, she is a perfectionist and follows instructions.
·She loves working – it is her ministry.
·She has read up on medication.
·Prescription medication changes behaviours so she will stick to scriptural beliefs.
·She presently feels 100% better, her only problem is trust.
·God has helped her to get through her trauma.
·Church and Women’s Health have given her a second chance.
·She is a workaholic and she is sitting at home going through hell.
On cross-examination, the Applicant:
·When asked what religion she was, said she was Christian, evangelical Pentecostal, true born again Christian.
·Said she attends church regularly – once she is there, she feels better, her pain is better.
·When asked if seeing Dr Borges was consistent with her religion, said yes, she administers the ministry of Jesus in healing and miracles. Doctors and psychologists are all part of his ministry. She has to see them according to the law of the land and she has to comply.
·Said she started seeing Dr Borges in 2018 at the Women’s Health Clinic. The clinic helped her bring her children to Australia from the refugee camp.
·Said she has had over 60 sessions with Dr Borges and that Dr Borges invited a clinical psychologist to back her up.
·When asked about Dr Borges reporting to Ms Trisha that they had been informal meetings due to a common location until formal sessions commenced in 2020, said that they were just talking and when Dr Borges saw she was getting worse she intervened. She did not look at it as informal discussions, Dr Borges was always observing her health.
·When asked if she took the medication she was prescribed, said that the doctor had told her to take it for her mental health and to help her sleep, it was an antihistamine, but she only took it once because she does not believe in medication, Jesus heals her.
·Said she needs to take baby steps to get back to work.
·Said that everything she does she relates to the bible.
·When asked if her GP or psychiatrist prescribed her different medication would she take it, said it depends on what for.
·When asked if she would take medication to treat her mental health, said, “No as it is fully treated and fully stabilised. I don’t talk about it. It is under God’s control. I am not a risk to the public. I am very quiet”.
·When asked if she accepted the view that if she took medication, she might feel better, said she is feeling better, she has experienced the healing ministry of the bible.
·When asked if she has talked to her Church leaders about her belief in relation to taking medication, said, “No. I am a Christian and a reader”.
·Said she has read thousands of testimonials and they amaze her.
·When asked if her view was that she is not taking medication because of her religion but rather because she does not think she needs medication because her faith will carry her through, said, “Yes. What you believe is what happens”.
In written closing submissions dated 13 July 2023, the Applicant set out the background of an ongoing workplace dispute that she says led to the deterioration of her mental health. The Applicant outlined why she believes she should be granted the DSP and contended that:[32]
[32] An exact reproduction of the Applicant’s closing written submissions.
1: Applicant made application within the qualification period despite the exacerbated mental ill health at the time. Applicant was faced with enormous, ongoing mental instability.
6: Applicant was fully diagnosed of the adjustment disorder by Dr Joanna Skinner who was a member of staff at the Wellness group at the time. Dr Butler was making a follow up from what Dr Skinner has written.
7: A psychologist is also trained in the processes of diagnosing mental disorders. Dr Borges do have extensive knowledge and experience in Psychology. Dr Borges holds a doctoral degree in Psychology, though not medically compared to the Psychiatrist and clinical Psychology. Assessments and evaluations were conducted and Dr Borges submitted several reports.
·The Psychologist used several codes and scales to assess applicant.
·During the qualification period, applicant suffered immense trauma of PTSD, torment, anxiety, lack of sleep, grieving, destabilised patterns of hopelessness, shame, neglected by the system and hardship from unemployable to lack of value. The work restrictions and the defamation for the death of a resident at the Redlands Hospital where applicant has never held a position, killed the applicant and made the applicant broken and mentally disabled at the time till health professionals’ early interventions.
8: The applicant’s psychological conditions were fully treated and stabilised through scriptural recitations of the Holy Bible, Pentecostal deliverance, all nights prayers, regular church attendance, praise and worship, healing sessions and bible studies for hope, restoration, encouragement, assurance of support, joy, peace and wellness.
·Applicant was stabilised by constant regular visit to the wellness group practitioners and massage palate. When the applicant left the world wellness group, the applicant continued treatment elsewhere at the Wishart medical Centre, Dr Yvette Tan.
Dr Tan is all-rounder Practitioner, who was able to stabilised applicant’s mental health. Dr Tan embarked on more mental health counselling, scriptural verses, magnetic applications in massage of back, legs etc. Dr Tan succeeded in easing the mental illness. Applicant was then able to be calm, eat, sleep and drive. Applicant’s social levels increased. Applicant was able to travel to church and other places without escorts. Applicant’s communication improved. Patterns of trauma were waning away. It was at a low level. Regular tears ceased.·Dr Borges completed every assessment that was required for stability. The Psychological, verbal questionnaire orientates. The sessions with Dr Borges created vitality and hope.
9: The applicant’s psychological conditions have been fully diagnosed and stabilised. Please contact applicant’s healthcare team.
Applicant attended Dr Tan’s home based therapy to help with mental health stabilisation.
9a: Reasonable treatment of non-pharmacological bases is acceptable as per Joanna Briggs Research.
·Applicant received reasonable, holy scriptural readings from church services, healing rooms, Pastors etc.
·The applicant’s is a registered nurse and was aware of the pharmacological therapies that come with serious baggage and contraindications of mental health medications. The applicant wanted to avoid the symptomatic withdrawals from these medications. The side effects are magnitude of suicides, hallucinations and amnesia, which sometimes lead to dementia. The drugs are mostly hap hazardous and can exacerbate more mental and physical health as seen with many clients when applicant practiced as a nurse.
9b: Reasonable treatment is ongoing on monthly bases through bulk billing. Other Psychiatric appointments can take up to a year and it is quite expensive and unaffordable.
·Applicant relies on food bank, handouts and so forth for survival.
10: The applicant has received some adequate medical care. Medical care is ongoing and medical practitioners are at the applicant’s disposal.
·Appropriate trials of medication are a taboo to applicant’s evangelical- Pentecostal faith and African upbringing. The great Physician is Jesus and a healing breakthrough from scriptures. Read 1Corinthian 6: 19-20; Psalms 45: 8; 51: 7; It illustrated that no one should harm that which was created by God. Medication harms God’s creation. Medication harms so much. A true Christian believe in a good balanced diet as preventative medicine (Ezekiel 4: 9).
·Dr Butler is an excellent practitioner and full of compassion. Applicant cannot attend wellness group to see her because it was becoming quite risky and provocative. It was not safe for applicant as applicant was trying to protect her integrity, dignity and respect. Rita Prasad launched a fight with applicant, which would have caused the death of the applicant. The fear of the applicant being accused falsely or be murdered. It was not safe. Applicant realised that Dr Butler was worried and discussed her worries with treating psychologist, Dr Borges. For Safety and defamation, applicant stayed away from the site.
·While the applicant’s mental health was quite shaky and unbearable, applicant has fought very hard to fix her health problems with patience, cooperation and steadfastness.
·In fact, the wellness group receptionists made it difficult for applicant to get appointments from Dr Butler. It was confrontational, thus exacerbated applicant’s mental health. It was becoming catastrophic, and that was not the applicant’s intention. Applicant wanted to continue pursuing wellness while avoiding clashes and be in a clean sheet with the law of Australia.
11a: World wellness group had Dr Skinner working for the organisation. She was the first Psychiatrist to diagnosed applicant on 14 November 2018. Applicant pursued wellness at the world wellness group until 2021.
·Psychiatric attendance is quite expensive not bulk billed. Dr Alyssa Ryan and
Dr Borges worked together to psychiatrically support applicant to stabilise mental health issues. It has since been successful. Dr Yvette Tan is still doing her home-based remedy to support applicant’s mental health issues.11b: Ms Trisha should be aware that applicant has made significant improvement with psychological interventions, scriptural, biblical recitation and prayers. Psychiatric assessments should be left with applicant’s treating team, Dr Tan, Dr Borges and Dr Ryan. Dr Skinner and Dr Ryan is expensive. They do not rely on bulk billing. To continue attending, applicant will proceed with starvation to raise money for the doctor’s consultation / attendance. Applicant still owed Dr Joanna Skinner some money for recent attendance.
11C: Applicant’s psychological condition is stabilised. Mood disorders seldom occur except for lack of food, lack of employment continues. The applicant is a Christian, mood disorders are controlled by music, travelling around, attending church services and other weekly services. Applicant has never been in trouble. The Robo debt was the trouble applicant had experienced through police beating for failing to appoint the amount and commence payment.
·The applicant has found life very meaningful with hope in the multiple interactions in the church community.
11 d: The emphasis on trials of medication is a continual attack on the rights of the applicant’s cultural beliefs system and the right to make choice independently. The applicant will never accept medical trials or drugs. It is pure destruction.
The applicant is settled, stabilised with major attendance at Dr Borges, Dr Ryan, and Dr Tan.
·Non-pharmacology is always acceptable in the medical framework and the rights of the patients should always be taken into consideration. According to the RIGHTS OF THE PATIENTS, by Joanna Briggs, applicants must have the right to say no to any treatment especially medication intervention or invasive treatment. Applicant has been stabilised by the undermentioned practitioners.
·Dr Tan and Dr Borges are regular as such they are satisfied with their patient.
·Applicant does not require supervision. Applicant is not a sex offender, rapist, murderer or a thief. Applicant has never committed human atrocities, animal cruelty or crimes against humanity. Applicant is stable, seeking to get rehabilitation for future job opportunities.
12: Psychological therapies were never informal for applicant. Dr Borges received payment from Medicare. Informal visit was not a legal terminology. Perhaps, the psychologist wanted to interpret such visits as informal for fear of the ongoing destruction on an immigrant.
12a Treatment has long continued and stabilised before the qualification period.
·The psychologist tried to use ‘informal’ to evade recalcitrant treatment, the applicant was receiving from the system. She was becoming neutral in the face of human rights violations. As an immigrant, the psychologist was fearful of speaking out. The psychologist chose her own doing.
12b: Dr Borges medical certificate which stated ‘TRUST….” It is the fact.
·Applicant has requested for thorough rehabilitation for work purposes, building trust and counteracting many workplace disasters such as racism, bullying, victimization, hatred and so forth.
·Progressive exposure therapy can be essential for the applicant. The applicant is still afraid to go back to work without any developmental guide and support from expert recruiters. Some major workplace attacks are serious constraints responsible for serious mental health crisis in the country.
12c: Applicant could not see clinical psychologist, Dr Ryan because there was a long queue of patients waiting to see Dr Ryan.
· Dr Ryan’s contribution was diagnostic and therapeutical.
· Ms Trish has poked her nose on other practitioners to cause human rights violation and loss of lives.
12d: Dr Ryan’s suggestion was aligned with applicant’s PTSD. Applicant has suffered immense trauma in the hands of her employer. Nevertheless, the system chose to exacerbate the pain by focusing multiple submissions rather the health of the applicant. The rigorous pains the applicant experienced affected all the GPs and Psychologist.
·Applicant’s emotions are settling down as coloured people are allowed a VOICE only by referendum. Even when they faced workplace assault, they are never permitted to speak.
·Applicant did not know that one’s voice is controlled and mandated by a bill of law.
·The system depleted and defamed applicant’s integrity and status by going through a very long process. The fight for truth and resolution became an incursion of mental health embattlement and destruction of health status.
12e: several weekly sessions were documented. Documented sessions were greater than 40 sessions
·Can Trish revisit her statements? Trish is part of the failed medical and legal system that only puts immigrants under impunities and rage. Thus, Ms Trish may have enhanced the mistrust in the applicant’s mind and heart which triggered the psychologist request for ‘engage in progressive exposure therapy to build trust in the workplace ‘environs.
·The Psychologist was very responsible. She documented every visit and each was shown in her submissions.
In Summary, the applicant has claimed that she had undergone impunities even when the applicant’s circumstances are justifiable. The applicant has experienced failed, biased, judiciary system that turned a blind eye to suffering, predicaments of the applicant, simply due to her background.
The applicant urged the system to be aware that she studied for self-reliance. Those degrees were confiscated by means of restrictions causing serious mental breakdown.
Building trust requires workplace supervision and interventional support.
Applicant believes in honesty, reliability, resourcefulness, empathy, sympathy, trustworthiness, caring, love, change, harmony, oneness, unity, peace etc.
Applicant request the system support with workplace rehabilitation to go back to work for a period of time, attending 15 hours a fortnight till cleared and approved by a solidified employer and recruiter.
CONTENTIONS OF THE RESPONDENT
The Respondent filed an Amended Statement of Facts and Contentions dated
27 January 2023.[33] The Respondent outlined that it contended that the Applicant’s psychological conditions of adjustment disorder, post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) were fully diagnosed but not fully treated and fully stabilised during the qualification period and therefore cannot be assigned an impairment rating under Table 5 (Mental Health Function) of the Impairment Tables.[34]
[33] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, with Attachments, pages 174-221.
[34] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, pages 181-183, paragraphs 45-51.
The Respondent’s contentions were consolidated and expanded in their written closing submissions dated 27 June 2023. The Respondent contended:[35]
[35] Respondent’s Closing Submissions, pages 1-6, paragraphs 6-16.
Fully diagnosed
6. The Secretary accepts that the Applicant’s adjustment disorder was fully diagnosed during the qualification period, on the basis of the report of Dr Luisa Butler, psychiatrist, dated 19 May 2021.[36] The Secretary observes that Dr Butler made this diagnosis after performing a diagnostic assessment of the Applicant during the qualification period.
[36] Exhibit 1, T Documents, T23, page 149, Claim for DSP.
7. For the reasons set out in the Amended SIFC and as outlined in the Secretary’s opening submissions at the hearing, the Secretary also accepts that the Applicant’s post traumatic stress disorder (PTSD) and major depressive disorder (MDD) were fully diagnosed during the qualification period, based on the report of Dr Ryan, clinical psychologist, dated
7 December 2021 (as amended on 19 January 2022).[37] Although there is no contemporaneous diagnosis of PTSD or MDD by a psychiatrist or a clinical psychologist during the qualification period, applying the approach taken by the Tribunal in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [88], the Secretary accepts that the evidence confirms the Applicant was suffering from PTSD and MDD during the qualification period.[38][37] Exhibit 2, Hearing Book, R3, Respondent’s Amened Statement of Issues, Facts and Contentions, Attachment B, Email chain between the Applicant and Dr Ryan filed on 19 January 2022, attaching Amended Report of Dr Ryan date 7 December 2021, pages196-204.
[38] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, page 182, paragraph 51.
Fully treated and fully stabilised
8. This matter turns on whether the Applicant’s psychological conditions were fully treated and stabilised during the qualification period.
9. The Secretary submits that the Applicant’s psychological conditions were not fully treated and fully stabilised during the qualification period because:
(a)the Applicant had not undertaken all reasonable treatment for the conditions by the end of the qualification period, in particular further engagement with a psychiatrist and appropriate trials of pharmacological therapy; and
(b)further reasonable treatment could be expected to result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years.
10. The Applicant had received some treatment for her psychological conditions by the end of the qualification period, namely engagement with her general practitioner, engagement with registered psychologist Dr Borges and diagnostic assessment by psychiatrist Dr Butler. However, the Applicant had not received sufficient ongoing treatment by a psychiatrist; she had not completed the recommended psychological therapy; and she had not undertaken appropriate trials of medication.
11. Regarding treatment by a psychiatrist:
(a)The Applicant engaged with a psychiatrist, Dr Butler, on two occasions only. The first was an ad hoc appointment on 12 May 2021 when the Applicant presented to the medical centre in a distressed state and Dr Butler happened to be at the Centre.[39] The second was on 19 May 2021, for the purpose of a diagnostic assessment.[40]
[39] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 208.
[40] Exhibit 1, T Documents, T23, page 149, Letter from Dr Butler.
(b)On 27 October 2022, the Health Professional Advisory Unit (HPAU) clinical psychologist, Ms Trisha, spoke to Dr Butler.[41] Dr Butler explained it was reasonable to expect that if the Applicant had not made significant improvement with psychological intervention alone, she would return for further psychiatric assessment to revisit diagnosis and explore alternative treatment options such as medication.
[41] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 208.
(c)In her evidence at the hearing, Ms Trisha confirmed that engagement with a psychiatrist is recommended treatment for the Applicant’s psychological conditions, in accordance with the Australian Guidelines for the Prevention and Treatment of Acute Stress Disorder, Posttraumatic Stress Disorder and Complex PTSD and The 2020 Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for mood disorders.
(d)The Secretary submits that engagement with a psychiatrist constitutes reasonable treatment for the Applicant’s psychological conditions as defined in subsection 6(7) of the Rules for applying the Impairment Tables, which the Applicant had not undertaken by the end of the qualification period. Psychiatrists are well placed to supervise and make any required changes to a person’s treatment, including recommending and supervising trials of medication.
12. Regarding psychological therapy:
(a)Although the Applicant gave evidence to the AAT1 that she has seen Dr Borges between 10 and 20 times over a four year period,[42] Dr Borges advised the HPAU clinical psychologist on 2 November 2022 that,[43] as her consulting rooms were in the same building as the Women’s Community Aid Association, she had a number of informal contacts with the Applicant when she attended the association, often brief discussions at her office door. Dr Borges advised that it was not until March 2020 that the Applicant was formally referred to her and commenced attending therapeutic appointments for psychological intervention. This is consistent with the Medicare records, which confirm ten sessions of psychological intervention commencing on 24 March 2020 up to the end of the qualification period.[44] Treatment continued after the end of the qualification period.
[42] Exhibit 1, T Documents, T2, page 5, paragraph [10], Decision of the SSCSD.
[43] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 208.
[44] Exhibit 2, Hearing Book, R2, Supplementary T Documents, ST9, pages 155-165, Medicare Patient History.
(b)On 22 March 2021,[45] Ms Borges stated in a medical certificate that the Applicant “would require intense psychological and practical support to acquire and retain work” and recommended she “engage in progressive exposure therapy to rebuild trust in the workplace environment”.
[45] Exhibit 1, T Documents, T17, page 98, Medical Certificate.
(c)The Applicant did not commence seeing clinical psychologist Dr Ryan until
6 December 2021.[46] As observed by Ms Trisha,[47] this was well outside the qualification period and appears to have been for the purpose of diagnostic clarification rather than therapeutic intervention.[46] Exhibit 2, Hearing Book, R2, Supplementary T Documents, ST2, page 129-132, Letter from Dr Ryan.
[47] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 208.
(d)On 1 November 2022, Ms Trisha spoke to Dr Ryan.[48] Dr Ryan advised that, if she had been asked to provide therapeutic recommendations, she would have suggested a trauma focused treatment program, commencing with emotion regulation, trauma processing and then cognitive work.
[48] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 209.
(e)In her evidence at the hearing, Ms Trisha referred to the Applicant’s Medicare records and noted that the Applicant only had two sessions with Dr Borges following Dr Borges’ medical certificate dated 22 March 2021. The Secretary notes that these sessions were on 23 March 2021 and 22 May 2021.[49] Ms Trisha gave evidence that these two sessions would not have been enough time to implement the treatment recommendations in Dr Borges’ medical certificate dated 22 March 2021.
[49] Exhibit 2, Hearing Book, R2, Supplementary T Documents, ST9, pages 155-165, Medicare Patient History.
(f) Accordingly, the Secretary submits that the Applicant had not completed the recommended psychological therapy before the end of the qualification period. The Secretary submits that the recommended psychotherapy constitutes reasonable treatment as defined in subsection 6(7) of the Rules for applying the Impairment Tables, particularly noting that it has been recommended by both Dr Borges and
Dr Ryan.13. Regarding appropriate trials of medication:
(a)The Applicant has previously reported to her doctors and to Services Australia that she does not want to take medication.[50] This was confirmed by the Applicant in her evidence at the hearing.
[50] Exhibit 1, T Documents, T19, page 101, Employment Services Assessment Report and T26, page 161, Medical Certificate.
(b)The Applicant’s PBS records show no evidence of supply of any psychotropic medication.[51]
[51] Exhibit 2, Hearing Book, R2, Supplementary T Documents, ST9, pages 155-165, Medicare Patient History.
(c)Although the Applicant was prescribed Promethazine by her general practitioner,
Ms Trisha gave evidence at the hearing that this medication is an over-the-counter antihistamine which can be used as a sedative or for insomnia. Ms Trisha gave evidence that this medication is not sufficient pharmacological treatment for the Applicant’s psychological conditions.(d)As noted above, on 27 October 2022, Dr Butler advised Ms Trisha that it was reasonable to expect the Applicant explore alternative treatment options such as medication.[52]
[52] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 208.
(e)On 1 November 2022, Dr Ryan advised Ms Trisha that there was a role for medication given the Applicant’s heightened physiological response and level of distress at assessment.[53]
[53] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 209.
(f)In her report dated 7 November 2022,[54] Ms Trisha stated “it would have been appropriate for [the Applicant]to explore pharmacotherapy options to assist in managing the intense physiological response and emotional distress [the Applicant] was experiencing. This would have potentially also helped her capacity to engage in and respond to psychological therapy while her stressors (work issues and litigation) were still occurring.”
[54] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 209.
(g)In her evidence at the hearing, Ms Trisha confirmed that pharmacological therapy is recommended treatment for the Applicant’s psychological conditions, in accordance with the Australian Guidelines for the Prevention and Treatment of Acute Stress Disorder, Posttraumatic Stress Disorder and Complex PTSD and The 2020 Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for mood disorders.
(h)The Secretary submits that pharmacological therapy constitutes reasonable treatment for the Applicant’s psychological conditions as defined in subsection 6(7) of the Rules for applying the Impairment Tables, which the Applicant had not trialled by the end of the qualification period.
14. Insofar as the Applicant submits that pharmacological treatment is not reasonable treatment due to her religious beliefs, the Secretary responds as follows:
(a)At the hearing, the Applicant described herself as an Evangelical Pentecostal “born again” Christian. She attends Citipointe Church.
(b)The Applicant gave evidence that she does not wish to take medication due to her religious beliefs, however there is no evidence that the Applicant had previously advised her treating doctors or Services Australia of this barrier to treatment. Rather:
i. On 25 March 2021,[55] the Applicant reported to an employment services assessor that she did not want to take medication, stating that she “is not a danger to anyone and doesn’t need it”.
[55] Exhibit 1, T Documents, T17, page 101, Employment Services Assessment Report.
ii. In a medical certificate dated 26 October 2021,[56] general practitioner Dr Hebden stated that the Applicant preferred not to take medication.
[56] Exhibit 1, T Documents, T26, page 161, Medical Certificate.
iii. Ms Trisha gave evidence at the hearing that, when she spoke with the Applicant’s treating practitioners, she specifically asked whether the Applicant had indicated that she could not take medication due to her religious beliefs. They said “no”. They indicated that the Applicant preferred not to take medication. This is more of a personal belief rather than a religious belief. Dr Butler mentioned that the Applicant had Pentecostal beliefs, but it was not clear why this would lead to a refusal of treatment.
iv. The Applicant has previously taken Promethazine.
v. In cross-examination, the Applicant was asked whether she would be prepared to take other medication. She said “no”. She said that she does not need to because she is not harmful to the public and she is feeling better.
(c)The Applicant gave evidence in cross-examination that whilst her religion does not prevent her from taking medication, she does not feel this is necessary as her faith will heal her.
(d)The Social Security Guide at 3.6.3.02 provides that there may be medical or other compelling and acceptable reasons for not proceeding with reasonable treatment, including where a person has religious or recognised cultural beliefs prohibiting treatment (for example, blood transfusions). In those cases, it may be reasonable to consider the condition stabilised. A person's views (the subjective test) and all available information on treatment options, risks etc. (the objective test) must be considered in such situations. However, if a person has not had reasonable treatment due to factors not of a compelling nature (for example, lack of personal motivation not due to their medical condition), then their condition would not be considered permanent for DSP purposes, as it is not fully treated and stabilised.
(e)The Secretary maintains that the Applicant has not provided a compelling reason for not proceeding with reasonable treatment, namely appropriate trials of medication.
(f) The Secretary submits that the Applicant’s reason for refusing treatment stems from a personal belief, rather than a genuine prohibition as a result of her religious beliefs. The Applicant has not provided any documents or doctrines of the church setting out a prohibition on treatment. The Applicant also gave evidence in cross-examination that she has not sought guidance from church leaders about taking medication. She has read a lot and testimonies have amazed her. It is a “healing ministry”.
15. The Secretary relies on the evidence of Ms Trisha and submits that the further reasonable treatments outlined above, namely psychiatry review, psychological therapy and pharmacotherapy, could be expected to result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years. Although Dr Borges disagrees with this position is her reports dated 23 November 2021, 20 January 2022 and 13 June 2022, the Secretary contends that the evidence of Ms Trisha should be preferred, for the following reasons:
(a)During the qualification period, none of the Applicant’s treating professionals indicated that she would not significantly improve to enable a return to work in the future. This opinion was only reached by Dr Ryan and Dr Borges after the qualification period, and Dr Ryan retracted her opinion when speaking with Ms Trisha on 1 November 2022.[57]
(b)It was the view of Dr Borges on 22 March 2021,[58] which is immediately prior to the qualification period, that the Applicant’s medication required review and she required intensive psychological and practical support, as well as exposure therapy, in order to return to work.
(c)Dr Ryan confirmed to Ms Trisha in their telephone discussion on 1 November 2022 that it was reasonable to expect further improvement if the Applicant engaged in further treatment and a return to 15 hours per week work within two years could not be ruled out.[59]
(d)In her own evidence at the hearing, the Applicant indicated that she would like to trial rehabilitation and a return to work.
16. For these reasons, the Secretary submits that the Applicant’s psychological conditions cannot be regarded as fully treated and stabilised during the qualification period.
[57] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 209.
[58] Exhibit 1, T Documents, T17, page 98, Medical Certificate.
[59] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, Attachment C, HPAU Report dated 7 November 2022, page 209.
CONSIDERATION
In the lead up to the Hearing, together with several medical reports, the Applicant also provided submissions outlining her previous workplace related difficulties, her family situation and feelings with regards to her experiences as a refugee and a person with mental health concerns.[60] The Tribunal does not dispute the Applicant’s experiences or the effects they have had on her. While the Tribunal is empathetic, it must consider this matter in accordance with the law which clearly sets out the requirements that must be met for a person to be eligible to receive the DSP.
[60] Exhibit 2, Hearing Book, A12, pages 79-89, Email from the Applicant.
The issue before the Tribunal regarding the Applicant’s present matter is whether or not she was eligible to be granted the DSP at the date of her claim or at any time during the Relevant Period, being 12 April 2021 to 12 July 2021.
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from mental health conditions during the Relevant Period. The questions before the Tribunal are whether those mental health conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period, and if so, what was the resulting functional impairment during the Relevant Period. The Tribunal must also consider the Applicant’s continuing inability to work.
Did the Applicant’s mental health conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
Based on the evidence before it,[61] the Tribunal finds that during the Relevant Period the Applicant’s mental health conditions, being adjustment disorder, post traumatic stress disorder (PTSD) and major depressive disorder (MDD) were fully diagnosed.[62]
[61] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, pages 182-183, paragraphs 48-51.
[62] Consistent with Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558.
Up until the point of the HPAU report, the evidence before the Tribunal was not clear in relation to whether the Applicant’s mental health conditions were fully treated during the Relevant Period. In completing the HPAU reports, Ms Trisha was able to talk to the medical practitioners who provided numerous reports in support of the Applicant’s claim for the DSP but who were not being called by the Applicant to give evidence at the Hearing. The Tribunal understands the Applicant’s contentions in relation to why she was not calling her medical practitioners to give evidence and as such the HPAU reports are invaluable.
The Tribunal understands the opinion provided by Dr Borges in the many reports and letters she has provided to support the Applicant in her claim for the DSP. However, while
Dr Borges reported that the Applicant’s mental health conditions were fully treated and fully stabilised during the Relevant Period, she provided that opinion well outside the Relevant Period. In considering the Applicant’s eligibility to receive the DSP, the Tribunal is limited to considering the Relevant Period, it is open the Applicant to retest her eligibility for the DSP at any time.
The Tribunal notes the reports provided to Ms Trisha by Dr Butler and Dr Ryan outlining their views that it was reasonable to expect further improvement in the Applicant’s mental health conditions if she engaged in further treatment. The Tribunal prefers the views held by Ms Trisha, Dr Butler and Dr Ryan over that of Dr Borges.
There is no dispute that the Applicant is suffering from mental health conditions which have impacted upon her functional capacity, the dispute however is whether the Applicant had by the end of the Relevant Period undertaken all reasonable treatment with regards to those conditions and whether reasonable treatment is likely to assist her to return to 15 hours of work per week within two years.
In this regard, the Tribunal accepts the HPAU reports of Ms Trisha and the contentions of the Respondent as set out above.
The evidence before the Tribunal as set out by Ms Trisha also showed that there was no indication from the doctors, during the Relevant Period that further treatment would not result in functional improvement. The opinions came after the Relevant Period from
Dr Borges and Dr Ryan however this opinion is no longer held by Dr Ryan.
While the Applicant had engaged in some treatment in the lead up to and during the Relevant Period, based on the evidence before the Tribunal it is clear that she had not adequately engaged with a psychiatrist, psychology-based treatment or trialled appropriate medications.
Both Dr Butler and Dr Ryan make it clear that in addition to a trial of medication further review and trauma focused treatment would constitute reasonable treatment.
Ms Trisha outlined that both Dr Butler and Dr Ryan shared her view that it was appropriate for the Applicant to explore pharmacotherapy options. Ms Trisha reported:
Dr Butler (27.10.22) confirmed that if [the Applicant] had not subsequently experienced functional improvement with psychotherapy alone, a further psychiatric assessment would have been beneficial to rule out any other underlying comorbid conditions and consider the addition of pharmacotherapy.
Dr Ryan (1.11.22) advised that there was a role for medication given [the Applicant’s] heightened physiological response and level of distress at assessment. Dr Ryan (1.11.22) advised that if she had been asked to provide therapeutic recommendations she would have also suggested a trauma focused treatment program, commencing with emotion regulation, trauma processing and then cognitive work.
The author considers that it would have been appropriate for [the Applicant] to explore pharmacotherapy options to assist in managing the intense physiological response and emotional distress [the Applicant] was experiencing. This would have potentially also helped her capacity to engage in and respond to psychological therapy while her stressors (work issues and litigation) were still occurring.
Until the Hearing it was not apparent that the Applicant was seeking to rely on religious beliefs as a reason for why she had not engaged with medication to assist in treating her mental health conditions. While undertaking any form of medication or medical treatment is a decision for the individual, where there is reasonable treatment, that is likely to improve a person’s functional capacity, of which has not been undertaken, without a compelling reason, it is unlikely that the condition could be said to be fully treated for the purposes of the Act.
The Tribunal agrees with the analysis of both Federal Court and Tribunal decisions on this point as set out in the Respondent’s Amended Statement of Facts Issues and Contentions.[63] The consistent view, with which the Tribunal agrees is that where an applicant declines to undertake reasonable or recommended treatment, that is likely to improve their functional capacity, on the basis of their personal view of the risk and efficacy of the treatment, in the absence of a genuine and compelling reason, their condition would not be considered to be fully treated.
[63] Exhibit 2, Hearing Book, R3, Respondent’s Amended Statement of Issues, Facts and Contentions, pages 186-188, paragraphs 61-68.
At the Hearing it was not clear from the Applicant’s evidence that her religious beliefs were the reason that she would not consider treatment by taking medication. She told the Tribunal that she did not take medication because she does not need it, is healed and supported through her faith, scripture and the Church. The Applicant told the Tribunal that she had not spoken to anyone within her Church about medication. In the Applicant’s closing submissions, she contended that appropriate trials of medication are taboo to her evangelical-Pentecostal faith and African upbringing. The Applicant had not previously raised her upbringing as a reason for not engaging with medication.
Considering the Applicant’s evidence, in the absence of any corroborating evidence that pharmacological treatment genuinely and reasonably conflicts with the Applicant’s religious beliefs or cultural background, it is clear that the Applicant’s personal choice is the reason she does not wish to engage in such treatment, it is not that she is prevented for some other reason from doing so.
As such, in conjunction with the evidence outlined above, the Tribunal finds that during the Relevant Period the Applicant had not undertaken all reasonable treatment for her mental health conditions. The Tribunal further finds based on the evidence of Dr Butler, Dr Ryan and Ms Trisha it could not be ruled out that further reasonable treatment would result in significant functional improvement to a level that would enable her to undertake work in the next two years.
Consequently, based on the evidence before it, the Tribunal cannot be satisfied that the Applicant’s mental health conditions were fully treated and fully stabilised during the Relevant Period.
Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for the Applicant’s mental health conditions.
Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?
As the Tribunal has found that the Applicant did not have a total of 20 impairment points either on one Impairment Table or across multiple Impairment Tables during the Relevant Period, there is no need to consider whether she met the requirements of section 94(1)(c) of the Act.
DECISION
Based on the evidence before it, the Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s mental health conditions were fully diagnosed however were not fully treated and fully stabilised. Therefore, the Tribunal finds that they could not be considered permanent for the purposes of assigning a rating under the Impairment Tables.
The Tribunal finds that for the purposes of section 94(1)(b) of the Act, the Applicant’s impairments do not attract 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
...............................[SGD]..............................
Associate
Dated: 14 August 2023
Date of hearing:
Date of final submissions:
14 June 2023
13 July 2023
Applicant: By telephone Solicitors for the Respondent: Ms Gillian Gehrke
Services Australia
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