Tran; Secretary, Department of Social Services and

[2016] AATA 826

Tran; Secretary, Department of Social Services and [2016] AATA 826 (20 October 2016)

Division	General Division
File Number	2015/2446
Re	Secretary, Department of Social Services
APPLICANT
And	Duc Kiet Tran
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	20 October 2016
Place	Adelaide

The decision under review is set aside.  In substitution, it is found that Mr Tran is not qualified to receive the disability support pension.

.....................[Sgd]........................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether respondent's medical conditions were fully diagnosed, fully treated and fully stabilised during the assessment period - whether respondent's impairments attract 20 points under the Impairment Tables – decision under review set aside

LEGISLATION

Social Security Act 1991(Cth), s 94

Social Security (Administration) Act 1999

CASES

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Re Graham and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 650
Re Whittaker and Secretary, Department of Social Services [2014] AATA 345
Re Clark and Secretary, Department of Social Services [2015] AATA 589

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Member I Thompson

20 October 2016

INTRODUCTION

1. Mr Tran lodged a claim for disability support pension (DSP) on 24 April 2014.  Centrelink rejected the claim.  Mr Tran sought an internal review of the decision by an authorised review officer (ARO) of Centrelink.  The original decision was affirmed.  Mr Tran applied subsequently to the Social Security Appeals Tribunal (SSAT) for a review of that decision.  His application succeeded.  The SSAT set aside Centrelink’s decision.  Subsequently the Secretary, Department of Social Services, applied to this tribunal for a review of the decision of the SSAT.  On 28 May 2015 the Tribunal made an order staying the decision of the SSAT.

   LEGISLATION AND ISSUES

2. The Social Security Act 1991 (the Act) sets out the qualification criteria for DSP.  Section 94 of the Act provides that an applicant must have:

   (a)a physical, intellectual or psychiatric impairment;

   (b)an impairment of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (c)a continuing inability to work.

3. Under s 94 of the Act a person is regarded as having a “continuing inability to work” if:

   (a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)they have actively participated in a “program of support”.

   The second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

4. Under ss 41 and 42, and cls 3 and 4 of the Social Security (Administration) Act 1999 (Administration Act) an applicant must qualify for a Social Security payment on the day on which the claim was made or within 13 weeks of that date (the “Assessment Period”).  For Mr Tran’s claim for DSP, the Assessment Period is from 24 April 2014 to 24 July 2014. 

5. By letter dated 16 February 2015 the Centrelink ARO affirmed Centrelink’s original decision to reject the DSP claim and made these findings: 

   ·Mr Tran has permanent conditions namely hypertension and asthma

   ·Mr Tran’s condition of sleep apnoea, diabetes- non insulin dependent, gout and retinal detachment, anxiety and depression, dysphagia and gastro-oesophageal reflux are not permanent as they were not fully diagnosed, treated and stabilised

   ·The total impairment rating is zero

   ·As there is not an impairment rating of 20 points or more, Mr Tran does not have a continuing inability to work 15 hours per week or more because of the impairment.

6. On review of the Centrelink decision the SSAT found that Mr Tran suffered from anxiety and depression which was severe and assigned him 20 points under the Impairment Tables.  As it was a severe impairment, active participation in the program of support rules did not apply.  The SSAT concluded that Mr Tran has a continuing inability to work and satisfies s 94(1)(c) of the Act.

7. The Secretary’s application to this Tribunal for review of the SSAT decision contended that the SSAT erred in finding that Mr Tran’s condition of anxiety and depression was fully diagnosed, fully treated and fully stabilised at the date of the claim or within the assessment period.  Further the Secretary contended that the SSAT erred in finding that Mr Tran had a severe impairment under s 94(3B) of the Act and that the SSAT erred in finding that Mr Tran had a continuing inability to work as required by s 94(1)(c) of the Act.

8. The Secretary accepted that Mr Tran suffers from impairments which satisfied s 94(1)(a) of the Act.  Those impairments are sleep apnoea, hypertension, asthma, gout, dysphagia, retinal detachment, anxiety and depression, gastro-oesophageal reflux and non-insulin dependent diabetes. 

9. The major issue in contention related to Mr Tran’s mental health condition which the Secretary contended was not fully diagnosed, fully treated and fully stabilised in the assessment period and submitted, in particular, that there was not a proper diagnosis by an appropriately qualified medical practitioner.  The Secretary submitted that Mr Tran’s condition was assessed by a psychiatric registrar at the Queen Elizabeth Hospital (QEH). The Secretary submitted that on a correct interpretation of the Introduction to Table 5 of the Impairment Tables, an “appropriately qualified medical practitioner” includes a psychiatrist but does not include a psychiatric registrar.  Further, the Secretary referred to the definition of “appropriately qualified medical practitioner” in s 3 of Part 1 of the Impairment Tables and contended that a psychiatric registrar does not have the requisite qualifications and experience to diagnose a mental health condition for the purpose of the Impairment Tables.

10. The Secretary accepted that Mr Tran’s conditions of asthma and hypertension were fully diagnosed, fully treated and fully stabilised.  However it was submitted that there was no impact arising from those conditions which would attract an impairment rating.  The Secretary contended that the other medical conditions of sleep apnoea, gout, dysphagia, retinal detachment, gastro-oesophageal reflux and diabetes were not fully diagnosed, fully treated  and fully stabilised or if they were that there was no functional impairment that would warrant an impairment rating of other than zero under the Impairment Tables. 

11. Mr Tran disputed the Secretary’s contention about the diagnosis of a mental health condition.  Mr Tran contended that there was no evidence to show that a qualified psychiatrist did not have input into the diagnosis of anxiety and depression.  It was argued that the mental health condition was fully diagnosed, treated and stabilised and it is a severe condition.  Mr Tran asked this Tribunal to affirm the decision of the SSAT.

    THE HEARING

12. At the hearing, the Secretary was represented by Mr A Hay who called oral evidence from a consultant psychiatrist Dr M Ewer.  Numerous medical reports were received in evidence as exhibits together with records from Centrelink.  Mr Tran was represented by Ms M Riley, Welfare Rights Centre (SA) Inc. and both Mr Tran and his wife Ms Lam gave evidence.

    EVIDENCE

    Evidence of Mr Tran

13. Mr Tran gave evidence with the assistance of an interpreter.  He told the Tribunal that he resides with his wife and four children.  He migrated to Australia in 1985 from Vietnam.  He worked in a factory for several years as a machine operator.  He was made redundant through lack of work about 15 years ago.  Thereafter he stayed at home and spent several years assisting with the care of his aging mother.  Unfortunately she died four years ago.  He said that her death affected him considerably.  For some time he had been suffering from depression.  As he described it, his head was not right and he had a terrible memory.  After his mother died he told the Tribunal that his mental health condition deteriorated and sometimes he wanted to die to enable him to be with his mother.  His two elder brothers, who live in Adelaide with their families, ceased contact with him and his social network fell apart completely.  He said that nobody likes him. 

14. Mr Tran said that he suffered from diabetes which was diagnosed well before the claim period.  His vision was affected and also his right leg and knee.  In his left eye he sees flashing and in his right eye a black point which moves and disturbs his vision.  He has had two operations on his eyes and he thinks he is on his way to eventual blindness.  He has difficulty reading as the writing appears cloudy and ghostly.  He can still drive a motor vehicle.  However he only drives short distances.  He has a routine of driving the youngest child to school in the mornings.

15. Mr Tran said that he suffers from gout.  It manifests itself at any time.  It caused him considerable pain especially in his right hand.  Medication assists in reducing the frequency of episodes of gout.  At its worst, however, he is in a lot of pain and has difficulty sitting down and also difficulty moving around.  An unpleasant side effect of the medication is diarrhoea. 

16. Mr Tran said that he has suffered from sleep apnoea for many years.  He now sleeps in bed with a machine to help him with breathing.  The assistance, however, is limited because he suffers from asthma.  Sleeping is problematic for him for many reasons.  He suffers from nightmares.  He said that the nightmares make him really scared and he screams his head off.  His wife tries to comfort him when he has nightmares.  Generally he goes to bed at about one am and lies awake for some time.  Mostly he gets up around five am.  He is very tired much of the time. 

17. Mr Tran told the Tribunal that he has had long standing problems with swallowing.  The doctor has told him that he will have these problems until he dies.  There is no treatment available for his problems.  He has difficulty eating.  Food must be soft with some liquid in it.  He cannot eat dry food.

18. Mr Tran described his depression.  In particular, he hears voices of his deceased mother.  When he was treated with Risperidone, the voices became less frequent.  But they didn’t go away completely.  He said that the Risperidone treatment helped him and generally made him feel slightly less depressed and less upset.  Nonetheless anxiety has been a constant problem for him and he feels anxious at some stage every day.  An unfortunate side effect of Risperidone was an increase in his blood sugar levels.  He has had other medication prescribed from time to time for his depression and anxiety.  He has also attended sessions with a psychologist for what he described as “talking therapy”.  He did not regard the psychology support as particularly helpful.  He is on a waiting list for further psychiatric treatment and currently his psychiatric condition is getting worse.

19. Mr Tran described his daily routines.  They are marked by isolation and inactivity.  Generally he stays at home and watches TV.  He feels unhappy.  Sometimes he hates life and does not think it worth living any more.  He doesn’t do any gardening.  His wife assists him with selecting clothes to wear.  His wife does all the cooking and all of the domestic work.  When he watches TV he often falls asleep and wakes up and then sleeps again in front of the TV.  He goes for walks once, sometimes twice, per day.  He cannot walk very far as his legs hurt.  His wife does the shopping.  Sometimes he accompanies her.  His wife purchases all of his medication and assists with administering it.  He never catches a bus.  He says he doesn’t know how to catch a bus.  He has not attempted any retraining for work.  He said he could not retrain because of his psychiatric problems and he also pointed out that his English is very limited and his eyesight is not good.  He doesn’t like going out alone away from home as he is worried about being bullied.

    Evidence of Ms Lam

20. Mr Tran’s wife, Ms Lam, gave evidence.  She confirmed that Mr Tran’s physical and mental health conditions had deteriorated over the last 15 years following his redundancy from work.  She confirmed the difficulties which he has with diabetes, gout, sleep apnoea, swallowing and depression.  All of these difficulties manifested themselves prior to and during the assessment period.  They continue to affect him through to the present time.  In addition to caring for her children, Ms Lam is a full time carer for Mr Tran.  The effect of her evidence is that he is totally dependent upon her in virtually all aspects of daily living.  She prepares the meals.  She dresses him.  She manages his medication. 

21. In relation to Mr Tran’s depression, Ms Lam stated that the administration of Risperidone seemed to make him a bit better, particularly in the mornings.  By lunchtime, however, he would often pace around the house and start talking to himself.  When the Risperidone was withdrawn and other medication was tested, problems still continued, particularly with nightmares.  His anxiety attacks and anger outbursts are unpredictable.  He gets very angry about half a dozen times per week.  During those anger outbursts, Ms Lam and the children leave him alone and stay away from him.

    Medical Reports

22. Progress notes from the QEH were received in evidence and they related to Mr Tran’s mental health condition, in particular assessment and treatment between February 2014 and July 2015.[1]  The clinical records indicate that psychiatric registrars at the QEH considered that Mr Tran’s symptoms indicated that he may be suffering from a major depressive disorder and a generalised anxiety disorder.  On that basis treatment was commenced and implemented, from April 2014.  A recommendation was made for a referral to a Vietnamese speaking psychologist for grief counselling and anxiety.[2]

    [1] Exhibit 8.

    [2] Exhibit 10, T29 p 284.

23. QEH progress notes dated 25 September 2014 by a psychiatric registrar referred to an assessment of major depressive disorder (differential diagnosis – dysthymia) and generalised anxiety disorder (differential diagnosis – illness anxiety disorder).  A similar assessment was recorded by a psychiatric registrar in progress notes dated 9 April 2015.[3] 

    [3] Exhibit 8, p 10/50.

24. In progress notes dated 4 June 2015 a psychiatric registrar noted the previous assessments of major depressive disorder and generalised anxiety disorder. The registrar recorded, however, that a diagnosis of schizoaffective disorder (depressed subtype) needs to be considered because of psychotic signs that were present in addition to a possible, genetic predisposition.[4]  This approach continued, as indicated by progress notes dated 23 July 2015 in which the same psychiatric registrar again recorded that an assessment of schizoaffective disorder needed to be considered.[5] 

    [4] Exhibit 8, p 14/50.

    [5] Exhibit 8,p  21/50.

25. The issues surrounding diagnosis came to a head in September 2015 when a psychiatric registrar at the QEH presented Mr Tran’s case for a review by a psychiatrist, Dr Markwick, at the QEH Psychiatric Consultation Liaison Service, Cramond Clinic.  In a report dated 17 November 2015,[6] Dr Markwick reported as follows:

    “I can confirm that in September of this year (2015) the current psychiatric registrar in the clinic Dr Oliver Burgess presented Mr Tran’s case for review by myself for diagnostic clarification and management advice.  Dr Burgess assessment was that Mr Tran may have been misdiagnosed as having Major Depressive disorder and General Anxiety Disorder and that his symptoms were more in keeping with a diagnosis of Schizoaffective Disorder.  Based on the history provided I agreed that the appropriate diagnosis is Schizoaffective Disorder.”

    [6] Exhibit 7.

26. Dr Markwick went on to comment that Mr Tran’s treatment was for schizoaffective disorder, depressive phase with psychotic symptoms.  Dr Markwick stated that Mr Tran had not shown any significant functional improvement from April 2014.  Significantly, Dr Markwick noted that the appropriate treatment for Schizoaffective Disorder includes antipsychotic medication in suitable doses.  However Mr Tran was not administered antipsychotic medication until September 2014.  At the time of writing the report in November 2015, Dr Markwick noted that another antipsychotic medication was being trialled and the results were still unknown.  Moreover Mr Tran would be admitted as an inpatient to the Western Intermediate Care Centre for further assessment and management by a psychiatrist. 

27. The Secretary arranged for psychiatric review of Mr Tran by Dr M Ewer.  He wrote a report dated 16 September 2015 which was received in evidence[7] and he also gave oral evidence at the hearing. 

    [7] Exhibit 2.

28. Dr Ewer is a psychiatrist and he has practiced since 1985.  His particular speciality is in occupational psychiatry and veterans’ mental health.  In his detailed report Dr Ewer explained his methodology of conducting psychiatric testing and assessing the results of investigation, noting in particular personality assessment testing in the use and interpretation of the classification system, DSM-5, with its combination of strengths and shortcomings. 

29. Following examination, Dr Ewer concluded that Mr Tran suffered from a schizoaffective disorder (depressive sub type).  In particular, Dr Ewer wrote:

    “I note that he had previously been diagnosed with a major depressive disorder and a generalised anxiety disorder.  Given the history that I obtained and given the family history and in particular noting his long history of psychotic symptoms including auditory hallucinations and delusions, I do not think these can be explained on the basis of a generalised anxiety disorder or on the basis of a major depressive disorder.  I note that on 4 June 2015 the diagnosis of a schizoaffective disorder was considered.  In my opinion, this is the more appropriate diagnosis.  In particular I note a long history consistent with a major depressive disorder and concurrent symptoms of delusions and hallucinations...”[8]

    [8] Exhibit 2 p 19.

30. Dr Ewer’s report included detail about the history and the extent of Mr Tran’s mental health issues.  Dr Ewer noted observations of Mr Tran’s wife to the effect that he had suffered from psychiatric problems prior to their marriage in 1991 and that he had been talking to himself since he came to Australia, a problem which worsened after his mother died.  There was a suggestion that Mr Tran’s nephew either suffered from a schizoaffective disorder or a bipolar affective disorder.  There was another suggestion that Mr Tran’s father suffered from a mental illness.  The personal history which Mr Tran recited to Dr Ewer included details of his life as a child in Vietnam.  He was bullied at school.  His family home was seized during the Vietnam War.  He spent time in a re-education camp and he was tortured.  He has never had friends and he described himself as a loner.  He told Dr Ewer that he had experienced psychiatric problems for as long as he can remember.  He felt that he had been the target of a conspiracy in which other people tried to harm him.  He told Dr Ewer that he was troubled by suicidal thoughts over many years. Mr Tran told Dr Ewer that he was haunted by auditory hallucinations which worsened after his mother died.  Over the years Mr Tran said that people were trying to control his thoughts.  He told Dr Ewer that he gets nervous if people stand behind him. He was worried that they will try to kill him.  He said that he has had those fears for many years.  Dr Ewer reported:

    “Mr Tran has a number of unhelpful personality traits.  He has a limited repertoire of adaptive coping mechanisms”.[9]

    [9] Exhibit 2, p 19.

1. In his report, Dr Ewer wrote that Mr Tran had only received minimal treatment for schizoaffective disorder prior to the assessment period.  By the end of the assessment period Dr Ewer considered that Mr Tran had not received appropriate treatment for a schizoaffective disorder and, in particular, he had not been prescribed antipsychotic medication prior to the cessation of that period.

2. Consistently with that view, Dr Ewer wrote that Mr Tran’s mental health condition had not received optimal treatment during the assessment period as the appropriate diagnosis had not been made and therefor the appropriate treatment had not been administered.  In particular a range of antipsychotic medications had not been trialled.  Some improvement had been noted with treatment by Risperidone and it may be appropriate to increase the dose.  Dr Ewer considered that there may be other options as well.  Dr Ewer wrote:

   “Mr Tran has already shown some improvement in response to Risperidone and this is encouraging.  In particular, some of his psychotic symptoms have improved.  It is likely that his depression will improve once his psychosis has improved.”

   Dr Ewer noted that some patients with presentation similar to Mr Tran would never recover sufficiently to enable a return to work.  However some patients might.  It is an open question which can only be answered satisfactorily following appropriate treatment.  Dr Ewer concluded that Mr Tran’s condition was not fully diagnosed during the assessment period, appropriate treatment had not been applied and his condition was not fully stabilised. 

3. In a report dated 9 April 2015 Mr Tran’s general medical practitioner, Dr Nguyen, wrote that Mr Tran’s “most disabling medical condition” is anxiety and depression.[10]  Dr Nguyen noted that Mr Tran was receiving psychotherapy from a clinical psychologist.  He reported that Mr Tran had poor short term memory and poor concentration because of the depression and anxiety.  His wife manages his meal intake and diabetic diet, which are extremely important in relation to management of his diabetes.  Dr Nguyen reported that Mr Tran lead an isolated lifestyle because of a lack of confidence and anxiety.  Mr Tran’s interpersonal relationships were poor and he often shouts at family members because of his inability to control his moods and anger.  Dr Nguyen reported that Mr Tran’s ability to concentrate and focus on ordinary day to day activities was significantly impaired.  He did not adequately cope with basic, household tasks.  Dr Nguyen confirmed that Mr Tran was largely dependent on his wife for tasks involving planning and decision making, his self-esteem and confidence are poor and he was generally very irritable.  In all, Dr Nguyen regarded it as “almost impossible” to envisage that rehabilitation could succeed in assisting Mr Tran back into the workforce. 

   [10] Exhibit 10, T37 p 348.

   THE IMPAIRMENT TABLES

4. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.  Section 6 of the Rules for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.  The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

5. Section 6(5) of the rules for applying the Impairment Tables specifies that a decision whether or not a condition is “fully diagnosed and fully treated” by an appropriately qualified medical practitioner requires consideration of the corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition and whether treatment is continuing or is planned in the next two years. 

6. Under s 6(6) of the Rules for applying the Impairment Tables “fully stabilised” is defined in this way :

   “(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)the person has not undertaken reasonable treatment for the condition and:

   (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.”

7. In Re Fanning and Secretary, Department of Social Services [2014] AATA 447 Deputy President Handley stated at [33]:

   “The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking.  With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”.  While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine.  The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter.  For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.”

8. Equally, it is important to note the comments of the Tribunal in ReBobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, at [34]:

   “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”

9. Section 6(7) of the rules for applying the Impairment Tables sets out the requirements for “reasonable treatment” as treatment that :

   (a)  is available at a location reasonably accessible to the person; and

   (b)  is at a reasonable cost; and

   (c)  can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)  is regularly undertaken or performed; and

   (e)  has a high success rate; and

   (f)    carries a low risk to the person.

   Mental Health function

10. Table 5 of the Impairment Tables relates to mental health function.  The introduction to Table 5 states that it is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition and that includes recurrent episodes of mental health impairment.  The introduction to Table 5 also acknowledges that the signs and symptoms of mental health impairment may vary over time and that for mental health conditions that are episodic, the rating that best reflects the person’s overall functional ability is appropriate and needs to take into account the severity, duration and frequency of the episodes or fluctuations.

    Diagnosis

11. The introduction to Table 5 refers to the diagnosis and it states:

    “The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).”

    As indicated, the Secretary contended that the proper interpretation of that requirement is that “an appropriately qualified medical practitioner” includes a psychiatrist but does not include a psychiatric registrar. 

12. The Secretary further contended that this was not a case where Mr Tran could rely on evidence from a general medical practitioner and a clinical psychologist to support a diagnosis of a mental health condition.

13. In relation to the submission about a psychiatric registrar, the Secretary referred to the decision of the Tribunal in Re Graham and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 650. A similar submission was made in that case, namely, that a diagnosis by two psychiatric registrars did not constitute a diagnosis by an appropriately qualified medical practitioner in accordance with the requirement of Table 5. The psychiatric treatment took place at a community mental health service in New South Wales under the care of two psychiatric registrars. The medical evidence of a psychotic illness and schizophrenia was contained in clinical notes, medical certificates and medical reports. The Tribunal, constituted by Deputy President Handley, was satisfied that a diagnosis made by two psychiatric registrars amounted to a full diagnosis by an appropriately qualified medical practitioner. Deputy President Handley stated [at 31]:

    “…Their professional work would have been supervised by an experienced psychiatrist.  It is well known that in the community mental health sector in NSW there is a dearth of psychiatrists and many of the day to day consultations are undertaken by psychiatric registrars…”

14. The Secretary submitted that the Tribunal’s reasoning in Graham is incorrect. In particular, the Secretary submitted that a psychiatric registrar is not a psychiatrist for the purpose of Table 5 in view of the lack of professional qualifications to practice as a psychiatrist. It was argued that a psychiatric registrar must complete certain training prior to being recognised as a psychiatrist which then includes acceptance as a fellow of the Royal Australian and New Zealand College of Psychiatrists and the endorsement of the Medical Board of Australia.  A psychiatric registrar is therefore only a psychiatrist in waiting, and not equipped professionally to meet the requirement of an appropriately qualified medical practitioner which is specified by Table 5.

15. For Mr Tran it was contended that Dr Suetani, one of the QEH psychiatric registrars who treated Mr Tran, is an appropriately qualified medical practitioner for the purposes of Table 5.  Reference was made to decisions of the Tribunal accepting the diagnosis and status of a psychiatric registrar as the treating psychiatric doctor.  For example, in Re Clark and Secretary, Department of Social Services [2015] AATA 589, the Tribunal, constituted by Member Ermert, accepted that a diagnosis of a mental health condition by a psychiatric registrar was a diagnosis by an appropriately qualified medical practitioner as required by Table 5.

16. The Royal Australian and New Zealand College of Psychiatrists 2012 fellowship program contains the regulations, policies and procedures for the qualification as a psychiatrist.  The pre requisites include successful completion of a medical degree, at least one year of general medical training and current registration as a medical practitioner in Australia or New Zealand.[11]  The Secretary contended that the training program did not provide for supervision of trainees by a psychiatrist that qualifies trainees to make a diagnosis that meets the criterion of Impairment Table 5. 

    [11] Exhibit 6.

17. In addition to the prerequisites for entry into the fellowship program it appears that the applicants for psychiatry training must demonstrate suitability, skills and experience which enable them to provide psychiatric care to appropriate, professional standards and that they are potentially capable of completing the training program within the time allowed.  It appears that the training includes periods of working under various degrees of supervision, according to the stage of training, in hospitals and clinics where trainees undertake a wide range of responsibility in various areas of psychiatry practice. 

18. Mr Tran’s treatment for mental health problems took place at the QEH Mental Health Division.  The hospital is part of the central Adelaide local health network which is a South Australian government agency.  The QEH is located in metropolitan Adelaide at Woodville.  Dr Elizabeth Markwick is a psychiatrist engaged by the QEH Mental Health Division.  In her report dated 17 November 2015, Dr Markwick refers to the supervision of psychiatric registrars and wrote:

    “…This outpatient clinic in which Mr Tran was reviewed was the consultation liaison psychiatric registrar clinic which is part of the psychiatric consultation liaison service at TQEH.  It is supervised by fully qualified psychiatrists such as myself.  This supervision involves the psychiatric registrar seeking assessment or management advice and guidance from the psychiatrist for patients in the clinic.”[12]

    [12] Exhibit 7.

19. In evidence, Dr Ewer was asked whether a psychiatric registrar would have sufficient knowledge and experience to make a diagnosis of Mr Tran’s mental health condition for the purpose of the Impairment Tables.  Dr Ewer stated:

    “… I think in a particularly challenging case such as that of Mr Tran, it would have been more appropriate for a psychiatrist to make the diagnosis.  I acknowledge that a registrar receives appropriate supervision, but the psychiatrist would usually hear a person’s case through the reporting of the psychiatric registrar and may not, and often wouldn’t, meet the patient themselves.  Even though the registrar may be having supervision, they may not actually present the case in question, that of Mr Tran, during the supervision.  They may mainly focus on other cases.  So in a complex case such as this, I would have been much more confident if Mr Tran had seen a psychiatrist on a regular basis rather than a registrar.”

20. Dr Markwick’s later report dated 7 June 2016[13] states that Mr Tran was first assessed by a psychiatric registrar, Dr Suetani.  Dr Markwick reported as follows:

    “I can confirm that during this time Dr Suetani was personally supervised by myself for the required hours of 4 hours per week including 1 hour of individual supervision.  The 1 hour of supervision was regularly scheduled to occur in my office the other hours of supervision were met via our daily work conducting ward rounds and paper reviews as a team.  As an accredited post for consultation liaison psychiatry training we are required to provide this level of supervision and do so.  The 1 hour of supervision was regularly scheduled to occur in my office the other hours of supervision were met via our daily work conducting ward rounds and paper reviews as a team.  No formal record of supervision is kept but at the end of a registrars rotation both the registrar and consultant sign that it has indeed occurred.  I can confirm that this was the case for Dr Suetani.

    I can confirm that I supervised Dr Rumy Goswamy and provided individual supervision for approximately the first 2 to 3 weeks of her rotation (including the period relating to her assessment of Mr Tran on the 14/8/2014) but I undertook a period of extended leave from last August 2014 until September 2015.”

    [13] Exhibit 12.

21. Dr Markwick reported that she was again supervising the consultant liaison registrar following her return to work.  Dr Markwick noted that the treating psychiatrist is Dr Hosking and they have discussed Mr Tran’s case “on multiple occasions at length”.[14]

    [14] Exhibit 12.

22. In Graham it would seem that the Tribunal accepted an assumption that the professional work of two psychiatric registrars at a community mental health service would have been supervised by an experienced psychiatrist and that it was a matter of general knowledge that daily consultations were undertaken by psychiatric registrars. 

23. By contrast, there is clear evidence in this case about the treatment at the QEH by psychiatric registrars under the supervision of qualified psychiatrists.  Dr Markwick’s reports indicate that the work of the psychiatric registrars at the QEH in the assessment and treatment of Mr Tran was supervised by fully qualified psychiatrists in accordance with the practices and routines of the psychiatric consultation liaison service.  At various times, including the assessment period, Dr Marwick was one of those fully qualified, supervising psychiatrists with oversight of Mr Tran’s diagnosis and treatment.  Psychiatric registrars reported to her and presented Mr Tran’s case for review for diagnostic clarification, guidance and management advice.  The assessment and diagnosis of Mr Tran’s mental health condition were endorsed by psychiatrists, including Dr Markwick, at the QEH Mental Health Division and they acted in accordance with established routines of clinical care in a major, public hospital.  This is not a situation where trainees were allowed to make assessments and diagnoses that went unchecked or were made without sufficient supervision. 

24. In evidence that he gave to the Tribunal by telephone Dr Ewer was questioned about differing diagnoses for Mr Tran’s mental health condition.  He acknowledged the difficulties in determining a correct diagnosis for people with complex mental health conditions.  Difficulties with language and cultural factors are additional complicating factors which added to the complexities with Mr Tran’s diagnosis. 

25. Between April 2014 and September 2015, the QEH maintained a diagnosis of major depressive disorder and generalised anxiety disorder.  On review in September 2015 Dr Markwick confirmed a change in diagnosis by the QEH and reported that Mr Tran was suffering from a schizoaffective disorder. 

26. Subsequently, in her report dated 7 June 2016[15] Dr Markwick reported that the diagnosis was reverted to the original diagnosis of major depressive disorder.  That report was written between the first and second days of the hearing conducted by this Tribunal.  In that report, Mr Markwick concluded:

    “Our assessment therefor is that Mr Tran has had continued to experience Major Depressive Disorder since first diagnosed by Dr Suetani (and never met criteria for Schizoaffective Disorder).  It is not unusual that cultural differences and language barriers can make diagnosis and assessment more difficult.  We are satisfied that a full assessment has taken place and diagnostic issues now clarified.”

    [15] Exhibit 12.

27. In evidence, Dr Ewer noted without criticism that the QEH had reverted to the original diagnosis.  Dr Ewer stated that a schizoaffective disorder can be a difficult diagnosis to make and the diagnosis may change.  Similarly, treatment may vary in accordance with the diagnosis.  Moreover the prognosis will differ according to the nature of the psychiatric condition.  Dr Ewer explained the possibilities of a functional recovery and return to work for a person suffering from a major depressive disorder and a generalised anxiety disorder.  The path to recovery for such a person may differ from that of a person suffering a schizoaffective disorder.  Dr Ewer considered there would be less chance of returning to work for Mr Tran if the diagnosis is a schizoaffective disorder although there was still some chance. 

1. Dr Ewer pointed out that there is “no gold standard” in the diagnosis of mental health conditions, unlike many diagnoses in physical medicine.  In relation to the change in Mr Tran’s diagnosis made by the QEH, Dr Ewer was neither critical nor surprised at the change.  It  was, in effect, a move along a continuum in which a working diagnosis may alter from time to time

2. A diagnosis of anxiety and depression was reported by Mr Tran’s general medical practitioner, Dr T Nguyen, in a Centrelink Medical Report dated 19 April 2014.[16]  Dr Nguyen wrote that the anxiety and depression had commenced in 2013.  It appears that treatment included medication, while counselling from a psychologist was pending at that time. 

   [16] Exhibit 10, T17 p 252-262.

3. However, the psychiatric registrar, Dr Suetani, had noted on 8 April 2014, that a referral to a Vietnamese speaking psychologist for grief counselling and anxiety may be of benefit.[17]

   [17] Exhibit 10, T29 p 284.

4. The Tribunal accepts that Mr Tran’s mental health condition was diagnosed by an appropriately qualified medical practitioner.  Specifically the Tribunal finds that the diagnosis by the Psychiatric Consultation Liaison Service of the QEH Mental Health Division met the necessary requirement in Table 5 of the Impairment Tables, when the diagnosis is made by a psychiatrist.  In particular the Tribunal is satisfied that Dr Markwick was the supervising psychiatrist at the QEH Mental Health Division at the relevant time in relation to reviews and assessments of Mr Tran’s mental health condition.  Assessments by psychiatric registrars were discussed and analysed with Dr Markwick and other psychiatrists under the QEH Mental Health Division processes for professional supervision and line of accountability. 

5. Accordingly the Tribunal finds that Mr Tran’s mental health condition was fully diagnosed during the assessment period.

   Treated and stabilised

6. The next step is to consider whether the mental health condition was fully treated and stabilised at the date of the DSP claim and during the assessment period (24 April 2014 to 24 July 2014).  It is necessary to consider whether treatment or rehabilitation had occurred in relation to the condition and whether treatment was continuing or was planned in the next two years.  If the mental health condition was not fully treated and fully stabilised, it follows that no points can be assigned under Table 5 for that condition.

7. Noting the evidence of Mr Tran, together with all of the medical evidence, the Tribunal is satisfied that treatment for Mr Tran’s mental health function had commenced in 2013 under the supervision of his general medical practitioner.  Psychiatric treatment was in place during the assessment period under the guidance of the QEH Mental Health Division.

8. The QEH progress notes indicate that medication was administered for a major depressive disorder and generalised anxiety disorder.  The medication was Sertraline, and the dosage varied during the following months on reviews by the QEH.  Another medication, Risperidone, was added to the treatment plan by September 2014 and notes from the QEH dated 25 September 2014 refer to the depression and anxiety being treated by Mr Tran’s general medical practitioner.

9. The QEH progress notes also refer to Mr Tran’s mood swings, with both good days and bad days.  They refer to his chronic poor pattern with sleeping, variable appetite, chronic intermittent symptoms of anxiety over the past few years which have worsened in recent months, full blown panic attacks which are reduced in frequency, continuing minor conflicts with adult children living at home, irritability, a practice of sitting at home and mumbling to himself.  He is cognisant of his mental illness and the need for treatment.[18]

   [18] Exhibit 1.

10. By July 2015, when the QEH was considering a differential diagnosis of schizoaffective disorder, consideration was given to continuing the increased dosage of Sertraline together with the continuation and possible increased dosage of Risperidone. 

11. In her report dated 17 November 2015[19] Dr Markwick wrote that Mr Tran was being treated for schizoaffective disorder, in a depressive phase with psychotic symptoms.  His medications included the anti-psychotic Amisulpride and Sertraline.  The anti-psychotic medication had commenced in September 2014.  Previously he had indicated some positive response to Risperidone, however the dosage could not be maximised because of side effects. 

    [19] Exhibit 7.

12. A Job Capacity Assessment Report dated 30 May 2014[20] was submitted by an assessor who is a registered psychologist.  The report concluded that Mr Tran’s mental health condition was not fully treated or stabilised as medication was still being monitored and the dosages and type of medication may need to be altered. The report also stated that planned psychology treatment was still to commence. 

    [20] Exhibit 10, T32 p 299.

13. The Tribunal considers that the treatment which Mr Tran had received for mental health function during the assessment period cannot properly be considered as full treatment within the parameters of s 6(5) of the Rules for applying the Impairment Tables.  By the time of the DSP claim and during the assessment period he had consulted his general medical practitioner and he had commenced treatment from the QEH.  He was also receiving assistance from a Vietnamese speaking psychologist.  However the treatment was merely in its early stages at that time.  Moreover, it was the beginning of treatment for a complex, mental health condition that could take considerable time to stabilise.  As Dr Markwick had indicated, there were a range of barriers including chronicity of symptoms, detrimental cognitive impacts and other barriers, which also included language difficulties.[21]

    [21] Exhibit 7.

14. Accordingly, the Tribunal is satisfied that Mr Tran’s mental health condition was fully diagnosed during the assessment period.  However, the Tribunal considers that the mental health condition was not fully treated, during the assessment period.  The mental health condition was not fully stabilised for the purpose of s 6(6) of the rules for applying the Impairment Tables.  In those circumstances an impairment rating cannot be given for this condition.

    Other conditions

15. Dr Toan Bao Nguyen is Mr Tran’s general medical practitioner.  He has treated Mr Tran since 1990.  In a report dated 12 August 2013[22] Dr Nguyen recorded diagnoses of obstructive sleep apnoea since 1997, hypertension since 2006, asthma since 1990 and non-insulin dependent diabetes from 2009.  Dr Nguyen reported that Mr Tran had been referred to a respiratory physician and also to a specialist eye clinic.  Dr Nguyen also recorded a diagnosis of gout commencing in 2006, retinal detachment in 2012 and gall stones in 2013. 

    [22] Exhibit 10, T16 p 241-251.

16. In a subsequent report dated 19 April 2014[23] Dr Nguyen recorded the treatment which Mr Tran was receiving for sleep apnoea, hypertension, asthma and gout.  The treatment included medication, use of inhaler, and management by the QEH respiratory clinic for sleep apnoea.  Dr Nguyen considered that the impact of those conditions was expected to persist for more than 24 months and the ability to function was not expected to change.  Dr Nguyen recorded a diagnosis of dysphagia since 2008.  Dr Nguyen recorded that specialist consultation had included treatment by an eye specialist, a psychologist, and a speech therapist.  Current symptoms included poor vision, issues arising out of diabetes and difficulty with swallowing.  He noted that the impact of those conditions was expected to persist for more than 24 months and the effects of the conditions would remain unchanged in relation to Mr Tran’s ability to function. 

    [23] Exhibit 10, T17 p 252-262.

17. A report from the Queen Elizabeth Hospital dated 25 October 2013[24] provided an assessment of the numerous conditions as follows:

    [24] Exhibit 10, T26 p 276-277.

    “He has a background of multiple medical problems, including asthma, hypertension, type 2 diabetes, gout, possible obstructive sleep apnoea, post-nasal drip/chronic rhinitis, bilateral tinnitus, eczema, osteoarthritis of the lower back, GORD/gastritis/duodenitis, retinal tears in right eye.  He has never smoked or drunk alcohol.

    Medications include;

    Pantoprazole              prn  Domperidone             10 mg tds

    Metformin                   1 gm nocte                 Diclofenac                  50 mg bd prn  

    Irbesartan  Rosuvastin                 10 mg mane   

    HCT  300/12.5 mg daily      Sodium chloride  

    Ventolin  prn  Nasal spray

    Allopurinol                   100 mg daily              Colchicine                  prn

    Atrovent

    He has a rash with Aspirin.

    Mr Tran has had longstanding problems with oropharyngeal dysphagia, going back to at least 2000.  He has been seen multiple times in ENT Outpatients as well as Speech Pathology.  I note that he saw two Neurologists, Dr Nguyen and Dr Purdie in 2005, who have not found any neurological causes for his dysphagia.  MRI brain done then was unremarkable.

    His latest modified barium study confirms mild to moderate oropharyngeal dysphagia.  Mr Tran has a modified diet with small pieces of food, needing to take soup to help him with swallowing.  He reports feeling itchy in his throat.  I note he is very anxious with regard to his dysphagia, particularly that his brother has had what sounds like a peripheral neuropathy and has become quite disabled from it.  Certainly he comes across as being highly anxious.

    With regard to his dysphagia, he also reports hiccoughs, but there is no vomiting or previous episodes of pneumonia.  He has no previous episodes suggestive of stroke or TIA.  He has no other associated neurological features.  I note the laryngoscopy done by out ENT colleagues this year, including biopsy, was clear.  Mr Tran’s weight remains stable.

    On examination, there was no facial weakness, no dysphasia or dysarthria.  There was no sensory neglect and no tongue weakness or wasting.  Upper and lower limb and gait examinations were unremarkable.  His chest is clear and there are no palpable masses in his neck area.

    He was also reviewed by Consultant, Dr Purdie, today.  We have not identified a specific neurological cause and certainly there is a prominent anxiety component to his perception of his symptoms.  We have organised a repeat MRI brain and will see him in Neurology Outpatients after that.

    With regard to his frequent GORD symptoms, I have advised him to take Pantoprazole regularly, however, he reports feeling anxious regarding possible side effects and he had a sister with had renal failure due to Pantoprazole.  I have explained to him that this is a highly rare complication and have left the decision up to him.

    …”

    Retinal disorder

18. Impairment Table 12 is applicable to a person with a permanent condition resulting in functional impairment when undertaking activities involving visual function.  The diagnosis must be by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.  A report from the QEH Department of Emergency Medicine dated 5 June 2012 confirmed a diagnosis of retinal detachment – retinal disorders following problems that Mr Tran had with visual loss and disturbance.[25]  A subsequent report from the QEH Division of Surgery, Ophthalmology outpatient clinic, dated 18 July 2012[26] referred to two retinal tears in Mr Tran’s left eye which were lasered and some peripheral retinal degeneration in the right eye which was also lasered.  Further review was anticipated.  Mr Tran’s general medical practitioner, Dr Nguyen confirmed a diagnosis of retinal detachment in 2012 and in his report dated 19 April 2014 referred to symptoms including poor vision.[27]

    [25] Exhibit 10, T21 p 270.

    [26] Exhibit 10, T22 p 271.

    [27] Exhibit 10, T17 p 252.

19. A mild functional impact on activities involving visual function is described in Impairment Table 12.  At least one of the criteria described for a mild impact must be applicable.  Noting the medical evidence, together with Mr Tran’s evidence about disturbance to his vision and difficulty seeing the print in newspapers, the Tribunal considers that he has a mild functional impact in relation to visual function and that impact was present during the assessment period.  Accordingly the Tribunal finds that Mr Tran’s visual function rates 5 impairment points under Impairment Table 12.

    Swallowing

20. Impairment Table 10 is used when a person has a permanent condition resulting in functional impairment related to digestive functions.  The diagnosis of the condition must be made by an appropriately qualified medical practitioner.  The report from the QEH dated 25 October 2013[28] refers to Mr Tran’s longstanding problems with oropharyngeal dysphagia.  The analysis by the QEH confirmed mild to moderate oropharyngeal dysphagia.

    [28] Exhibit  T26 p 276.

21. Mr Tran gave evidence about his difficulty with eating and swallowing.  His wife confirmed those difficulties in her evidence. 

22. Taking into account all of the medical evidence, together with the evidence of Mr Tran and Ms Lam, the Tribunal considers that there is a mild functional impact on activities related to digestive functions.  In accordance with the applicable descriptors in Impairment Table 10 the Tribunal considers that the mild functional impact was present during the assessment period and the digestive function rates 5 impairment points.

    Other factors

23. As previously indicated, there was evidence about multiple health problems which Mr Tran has suffered including sleep apnoea, hypertension, asthma, and gout.  Although those issues are important to Mr Tran’s health and wellbeing, it was not contended that they required particular consideration in relation to the DSP entitlement. 

    SUMMARY

24. The Tribunal finds that s 94(1)(a) of the Act regarding impairment is satisfied.

25. As outlined above, the Tribunal finds that Mr Tran’s mental health condition was fully diagnosed during the assessment period.  However his mental health condition was not fully treated and not fully stabilised during the assessment period.  Accordingly a rating cannot be given under the Impairment Tables for any impairment from the mental health condition.

26. The Tribunal finds that Mr Tran’s visual condition was fully diagnosed, treated and stabilised during the assessment period and the applicable rating is 5 points

27. The Tribunal finds that Mr Tran’s digestive condition was fully diagnosed, treated and stabilised during the assessment period and the applicable rating is 5 points.

28. With a total of 10 impairment points, Mr Tran does not have an impairment or combination of impairments that attract a rating of at least 20 points under the Impairment Tables during the assessment period. This means that Mr Tran does not satisfy s 94(1)(b) of the Act.  It follows that it is not necessary to consider whether Mr Tran has a continuing inability to work within the meaning of s 94(1)(c) of the Act.

    DECISION

29. For the reasons set out above the Tribunal sets aside the decision under review and in substitution for that decision decides that during the assessment period that Mr Tran was not qualified for the DSP.  

I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.....................[Sgd].....................

Administrative Assistant

Dated 20 October 2016

Date(s) of hearing	12 May & 22 June 2016
Advocate for the Applicant	Mr A Hay
Solicitors for the Applicant	Dept of Human Services
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (Inc) SA