Trotter and Repatriation Commission
[2003] AATA 766
•24 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 766
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/533
VETERANS' APPEALS DIVISION ) Re Michael Trotter Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr G A Mowbray Date24 July 2003
PlaceCanberra
Decision For reasons given orally the Tribunal affirms the Commission's decision of 7 May 1998 which was affirmed by the Veterans' Review Board on 24 August 2001.
..................[signed]....................
Member
CATCHWORDS
VETERANS’ AFFAIRS - alcohol abuse or alcohol dependency - whether inability to obtain appropriate clinical management
Veterans' Entitlements Act 1986 ss 70, 120, 120B
Deledio v Repatriation Commission (1997) 47 ALD 261; 25 AAR 396
Repatriation Commission v Gorton (2001) 110 FCR 321; 33 AAR 370
Brew v Repatriation Commission (1999) 94 FCR 80; 30 AAR 63
Repatriation Commission v Wedekind [2000] FCA 649
REASONS FOR DECISION
7 August 2003 Mr G A Mowbray History of the Application
1. On 7 January 1998 Michael Trotter lodged a claim to have alcohol dependence accepted as a service related disability. On 7 May 1998 the Repatriation Commission refused Mr Trotter's claim for what it described as "psychoactive substance abuse or dependence". This forms the reviewable decision.
2. On 14 August 1998 an application for review of the Commission's decision was received by the Veterans' Review Board which, on 24 August 2001, affirmed the decision under review. The Tribunal received an application for review of the Commission's decision as affirmed by the Board on 13 December 2001.
3. The application was heard on 14-15 July 2003. Mr Trotter was represented by Mr Paul Crabb of Capital Lawyers and the Repatriation Commission was represented by Ms Jayne Jagot of counsel. Oral reasons for decision were given on 24 July 2003 affirming the decision under review. On 28 July 2003 the Tribunal received a request from the Commission’s solicitor for written reasons for the decision representative pursuant to 43(2A) of the Administrative Appeals Tribunal Act 1975. A like request was received from Mr Trotter’s solicitor on 29 July 2003. Accordingly these written reasons have been prepared based on the oral reasons with appropriate editing.
Background
4. Mr Trotter was born on 26 July 1967. He served with the Royal Australian Navy from 17 January 1986 to his discharge on 25 May 1998. This service is defined as “defence service” for the purpose of entitlements under the Veterans' Entitlements Act 1986 (“the Act”). At the date of enlistment Mr Trotter was 18 years old and at the date of discharge 30 years old.
5. At the commencement of his defence service and for the first three years Mr Trotter was a cadet at the Australian Defence Force Academy (ADFA) in Canberra studying for a Bachelor of Arts degree. He graduated with this degree on 10 December 1988.
6. On or about 27 November 1997, the Board of Final Medical Survey recommended that Mr Trotter be discharged as "Medically Unfit for Naval Service" based on his condition of "alcoholism".
Issue
7. On 7 January 1998,Mr Trotter lodged a claim for a disability pension due to alcohol dependence. In broad terms, the issue before the Tribunal is whether Mr Trotter's alcohol dependence is defence-caused.
Legislation
8. The following provisions of the Act are relevant
“70 Eligibility for pension under this Part
(1) Where:
…
(b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
…
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d) the injury or disease from which the member died, or has become incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
…
but not otherwise.
…”
“120 Standard of proof
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
“120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
…
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…”
9. There are two relevant Statements of Principles
· Instrument No. 6 of 1994 concerning psychoactive substance abuse or dependence, which was in force at the time of the Repatriation Commission’s decision
· Instrument No. 77 of 1998 concerning alcohol dependence or alcohol abuse, which revoked Instrument No. 6 of 1994 and remains in force today.
Evidence
10. The documentary evidence before the Tribunal consisted of the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (known as “T-documents”) T1 to T21, Mr Trotter’s documents A1 to A9 and the Commission’s documents R1 to R6. Oral evidence was received from Mr Trotter, Dr Bruce Stevens, a clinical psychologist, and Professor Richard Mattick, a clinical psychologist and a professor in the Faculty of Medicine at the University of New South Wales.
Consideration of Issues and Findings
Legislative framework
11. Under Division 2 of Part IV of the Act the Commonwealth is liable to pay pension by way of compensation to a member in accordance with the Act where the incapacity of a member due to an injury or disease was defence-caused (section 70(1)). Section 70(5) specifies those circumstances where an injury or disease shall be taken to have been defence-caused.
12. Where a claim is made that an injury or disease was defence-caused then, in accordance with section 120(4) the claim is to be decided to the reasonable satisfaction of the Commission, or of the Tribunal when an application is before it. Section 120B(3) provides that in applying section 120(4) to determine a claim the Commission (or Tribunal) is to be reasonably satisfied that relevantly the injury or disease of a person was defence-caused, only if
· the material before the Commission raises a connection between the injury, disease or death of a person and some particular service rendered by the person, and
· there is in force either a Statement of Principles determined under section 196B(3) or (12) or a determination of the Commission under section 180A(3) that upholds the contention that the injury, disease or death of a person is, on the balance of probabilities, connected with that service.
13. The Statements of Principles have no role to play in the proof or disproof of the particular facts of a member's case. Statements of Principles set out a subset of proved scientific fact and where applicable are a statute-backed declaration of what is proved or known scientific fact (Deledio v Repatriation Commission (1997) 47 ALD 261 at 275; 25 AAR 396 at 411-2). A Statement of Principles upholds a contention that the injury, disease or death of a person is, on the balance of probabilities, connected with the particular service rendered by the person only if each element of the Statement of Principles is so satisfied, that is on the balance of probabilities.
The applicable Statement of Principles
14. In Repatriation Commission v Gorton (2001) 110 FCR 321; 33 AAR 370 the Full Federal Court decided that the Tribunal should look first at the current Statement of Principles. Only if a favourable decision could not be made for the applicant, should it then look at a Statement of Principles operative at the time of the reviewable decision.
15. In light of Gorton the parties agreed that the Statements of Principles mentioned at paragraph 9 above were relevant to the current matter and that the Tribunal was first required to consider Instrument No.77 of 1998. Nevertheless I think it is appropriate to set out the relevant clauses of both Statements.
16. Clause 1 of Instrument No. 6 of 1994 records that the Repatriation Medical Authority is of the view that
“[I]t is more probable than not that psychoactive substance abuse or dependence and death from psychoactive substance abuse can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces”
Further
“[T]he factors that must exist before it can be said that, on the balance of probabilities, psychoactive substance abuse or dependence or death from psychoactive substance abuse or dependence is connected with the circumstances of that service, are:”
This is followed by five subparagraphs. It is not in dispute that the only potentially relevant subparagraph is 1(e)
“(e) inability to obtain appropriate clinical management for psychoactive substance abuse or dependence.”
17. Clause 2 of the Statement of Principles provides
“2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(e) must be related to any service rendered by a person.”
Clause 3 is in the following terms
“3. The factors set out in paragraphs 1(c) to 1(e) apply only where:
(a) the person’s psychoactive substance abuse or dependence was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b) the relationship suggested between the psychoactive substance abuse or dependence and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act.”
18. Clauses 3 and 4 of Instrument No. 77 of 1998 provide
“3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans or members of the Forces.
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.”
19. Clause 5 sets out a series of factors. Again, it is not in dispute that only one of the subparagraphs has any possible application to Mr Trotter’s circumstances
“5. The factors that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person's relevant service are:
…
(e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.”
20. Clause 6, which is entitled “Factors that apply only to material contribution or aggravation”, states
“Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person's alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.”
21. Sections 8(1)(e) and 9(1)(e) of the Act are inapplicable to this case as they are concerned with war-caused rather than defence-caused death and injuries. The relevant part of section 70(5) is
“(5) For the purposes of this Act, … an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
…
(d) the injury or disease from which the member… has become incapacitated:
(i) was suffered or contracted during any defence service… of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service… of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service… rendered by the member, being service rendered after the member suffered that injury or contracted that disease”
22. As Ms Jagot for the Commission submitted the concepts relevant to this matter which underpin section 70(5)(d) are that the disease was contracted during service and the disease was contributed to in a material degree by or was aggravated by any service rendered after the date on which the disease was contracted.
Inability to obtain appropriate clinical management
23. The leading authority is Brew v Repatriation Commission (1999) 94 FCR 80; 30 AAR 63. Justice Merkel, with whom Justice Manfield agreed, said
“25. …[W]hether “inability” is established in a particular case is to be approached as a matter of practical reality rather than by a theoretical approach to that issue.”
26. In my view Sundberg J was quite correct in treating the meaning of “inability” in cl (1)(e) as “lack of ability; lack of power, capacity, means” (Macquarie Dictionary (2nd ed 1991)) or “the condition of being unable; lack of ability, power or means” (New Shorter Oxford Dictionary (1993)). The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the “condition of being unable”.. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case.” (Emphasis original)
24. Thus a mere lack of willingness to obtain treatment would not constitute an inability to obtain treatment, but external factors, such as a threat of sanctions by superior officers if treatment is sought, might operate on the facts of a particular case to render a person unable to obtain treatment (paragraph 28 of Brew).
25. According to Justice Heerey, who was in dissent on the outcome of the appeal
“3. … [I]nability can, according to context, be used in the sense that a person is physically capable of performing some act but chooses not to do so, either because of apprehension of likely adverse consequences, or because of some powerful persuasive force… Clearly the factor operating on the person’s choice would have to be a substantial one before it could be said there was “inability”. How substantial is a question of fact, and not capable of definition a priori.. Since all agree the present legislation is to be given a beneficial construction, it is appropriate to give “inability” the wider meaning discussed.”
He also stated
“9. For someone like the appellant, a member of the Armed Services working in a military establishment in wartime, a group culture against seeking medical treatment could operate as a powerful disincentive. Whether that amounted to “inability” was something the appellant was entitled to have considered on the merits.
26. In Repatriation Commission v Wedekind [2000] FCA 649 Justice Kenny identified the questions that must be asked and answered on a claim based on inability, in the context of a Statement of Principles which adopted the same structure as those in this matter
“12. In summary, before the AAT could be reasonably satisfied that Mr Wedekind’s pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind’s particular service.”
At [17] Justice Kenny was prepared to assume without deciding that a relevant diagnostic failure was capable of constituting an inability to obtain treatment within the meaning of the Statement of Principles.
Questions before the Tribunal
27. Both parties agreed that having regard to the matters addressed in the judgment in Wedekind, the following questions must be answered applying a balance of probabilities standard
(1)Did Mr Trotter suffer from alcohol dependence or alcohol abuse during (but not arising out of) service and, if so, on what approximate dates?
(2)What was appropriate clinical management for alcohol dependence or alcohol abuse by reference to the standards applicable at the time Mr Trotter suffered from alcohol dependence or alcohol abuse?
(3)Was there an inability to obtain appropriate clinical management for that alcohol dependence or alcohol abuse?
(4)Was that inability related to Mr Trotter's service?
(5)Was that inability one that involved a material contribution to or aggravation of Mr Trotter's alcohol dependence or alcohol abuse?
28. I note that the Commission accepted, at least for this claim, that alcohol abuse and alcohol dependence were the same as psychoactive substance abuse and dependence respectively.
Did Mr Trotter suffer alcohol abuse or dependence during but not arising out of his service
29. The evidence before me is very clear and the Commission concedes that Mr Trotter suffered from alcohol abuse and then alcohol dependence during his service, but not arising out of it.
30. The evidence includes that of
· Mr Trotter himself
· his peers and superiors at ADFA
· Dr Stevens who assessed him as meeting the criteria for alcohol dependence set out in DSM-IV
· Professor Mattick who says that Mr Trotter appears to have met the criteria for alcohol abuse and dependence from an early age, although he considers alcohol dependence is the appropriate diagnostic label.
I find accordingly.
31. It is not possible to be precise about the date of clinical onset. At one point in his report (Exhibit A2) Dr Stevens mentioned the date of onset of alcohol dependence as 1987 and at another point 1988. In oral evidence he said that 1988 was correct. Professor Mattick's view was expressed in his second report (Exhibit R5) as follows
“I disagree with Dr Stevens' view that alcohol dependence was evident in 1987, although this is a difficult point and as others have noted, it is not easy to be precise about this issue. However, from the information in front of me I believe that he did meet the criteria for alcohol abuse from probably 1987, having reviewed the documents again. There certainly is a basis to suggest that he was having significant problems from that time, based on the information originally before me and also based on the further information which I have received. Therefore, I am of the opinion that it is likely that he met criteria for alcohol abuse from 1987.
I believe that he met criteria for alcohol dependence one or two, or possibly three years later. I could not agree with the view of the Veterans' Review Board that his alcohol dependence was present after August 1996.”
32. I am satisfied on the evidence that there was clinical onset of alcohol abuse by 1987 followed by alcohol dependence within three years.
What was appropriate clinical management at the relevant time
33. In Wedekind Justice Kenny pointed out (at [17]) that the standard of clinical management against which the facts must be assessed is that at the time of service.
34. Both parties relied on the statement of Major General Rossi, former Surgeon-General in the Australian Defence Force, as setting out the parameters for appropriate clinical management (Exhibit A8)
“During the relevant period, 1986 to 1988, a regimen of clinical management existed for the care of patients who suffered from ‘alcohol abuse’, as defined in the RMA SOP current at the time. The regimen remains relevant today. It consists of assessment, education, counselling by a general practitioner, referral to counselling services specialising in alcohol abuse, optional referral to Alcoholics Anonymous and attention to co-morbidities. Any citizen presenting to his or her general practitioner could expect such a regimen of management.”
35. In oral evidence Dr Stevens said that this would have been an excellent regime for clinical management in 1987-88. He described it as "at the top end" or “an excellent response in 1987-88”.. Professor Mattick said that Major General Rossi's regime was an appropriate regime at the time although it was somewhat “idealised”. It was broader than what actually happened in practice, especially the attention to co-morbidities. At the time intervention was largely limited to counselling and referral to Alcoholics Anonymous and its 12-step program.
36. I am satisfied that appropriate clinical management for alcohol dependence or abuse at the end of the 1980s was as set out by Major General Rossi, but I accept the reservations expressed by Professor Mattick. I think that Dr Stevens would agree, notwithstanding evidence he gave of new approaches being developed in the United States at that time.
Was there an inability to obtain appropriate clinical management
37. Relevant matters to which Mr Trotter referred in his oral evidence included the following
· he first experienced a “peer backlash” towards his drinking in 1986 when he faced snide comments and the trashing of his room
· he was also disciplined by the President of the Mess Committee resulting in a ban on drinking at ADFA, and as a consequence he went to town to drink
· he was involved in a series of drink-related incidents at the time and suffered adverse officer cadet evaluation reports and a warning from his Officer Commanding (T3, p.45 and see Exhibit A5)
· he had 2 or 3 alcohol bans imposed upon him in the period 1986 to 1988
· one officer cadet evaluation report referred to repeated alcohol related incidents, and Captain Day said that Mr Trotter "has been repeatedly counselled about his consumption of alcohol" (T3, p.47)
· Mr Trotter said he was told "to pull his socks up" or "to get his act together"; otherwise his "appointment was in jeopardy"
· these interviews were, in Mr Trotter's view, “disciplinary” not “counselling”
· the only exception was that Mr Trotter was sent by Captain Day to see senior student counsellor Lesley Groombridge as a result of an incident in town in August 1988. Although this counsellor told him to control his drinking, in Mr Trotter’s view he was given no guidance about how to achieve this
· it was not until late 1997 or early 1998 he first acknowledged he was an alcoholic, and in hindsight, this could be traced back to 1986-87
· previously he had thought he had just been enjoying himself and having a good time. When his superior officers had counselled him he just thought they were trying to curtail his enjoyment
· in 1993 while at HMAS Waterhen he had referred himself to a counsellor and as part of this agreed to stop drinking
· in 1996 he had attended as an in-patient for six weeks at the Alcohol Rehabilitation Education Program at RAAF Richmond
· he has been abstinent since January 1998, as a result of assistance from his then superior and from a friend, and he commenced with Alcoholics Anonymous at that time. Another factor at the time was his hospitalisation with a very high blood alcohol reading
· Mr Trotter said he recalled the ADFA Handbook – “it was blue" – but not its contents. He could not recall the presentations by psychologists, chaplains and ADFA staff referred to by Lieutenant Commander Nash (Exhibit R6), nor those referred to in the ADFA handbook extracts (Exhibit R3), but he conceded that they may have occurred
· he did recall attending the first aid post at ADFA and the Field Hospital at the nearby Royal Military College Duntroon
· he also accepted that in about March 1989 out-patient treatment consisting of counselling and alcohol and drug awareness programs was recommended by Lieutenant Tracey, the Command Alcohol and Drug Program Co-ordinator (T3, p.59), and accordingly he attended counselling in Queanbeyan and a workshop.
38. The documentary evidence before the Tribunal includes the following (I have taken this from the Commission's outline of submissions with small amendments of my own, as in my view it accurately summarises that documentary evidence)
“32. Lieutenant Commander Nash has given a statement in these proceedings dated 13 June 2003 [Exhibit R6].. Lieutenant Commander Nash attended ADFA from 1987 to 1991. He recalls that, during 1987 and 1988, he was given presentations by ADFA psychologists on the services they could provide on matters such as stress and drinking problems, by ADFA chaplains on the assistance they could provide if cadets were experiencing drug or alcohol problems, from ADFA staff and guest lecturers about the divisional system and the assistance divisional officers could provide on personal issues, about health issues related to sex, drugs and alcohol, Defence policy on drugs and alcohol, drink driving awareness and what was considered acceptable drinking.
33. Lieutenant Commander Nash states that, during his time at ADFA, he was made aware by these ADFA presentations of what was considered “reasonable” drinking and that, if he had any problems in this regard, he could approach ADFA psychologists, chaplains, the medical centre, or his Divisional Officers for help. He also became aware, during this period, of personnel attending the Alcohol Rehabilitation and Education Program at Richmond.
34. Ms Dunn has provided a statement [Exhibit A9] which appears to corroborate that of Lieutenant Commander Nash. Ms Dunn says that in 1987 ADFA contacted the ACT Alcohol and Drug Service to deliver to ADFA a program because of concerns about cadets drinking behaviour, which was delivered and in which Ms Dunn participated during which both staff and cadets at ADFA were informed about the resources available to assist those individuals experiencing problems or those seen to be at risk.
35. The ADFA 1986 Handbook [extracts are Exhibit R3] at page 14 identifies that the cadets were required to attend a course on first aid and health which includes lectures on the misuse of drugs and alcohol. It also identifies, at page 23, the counselling services available at ADFA.
36. The ADFA facilities are located in Campbell, Canberra. [Mr Trotter agreed that t]his is approximately three kilometres from Canberra City, and only one kilometre from the Campbell shopping centre. The evidence includes reference to the fact that, while at ADFA, [Mr Trotter] would have spent time away from the ADFA facilities on weekends and at other times. See, for example, the statement of Lieutenant Colonel Day dated 5 April 2002 [Exhibit A7].
37. [Mr Trotter], on the evidence, was reprimanded and counselled on several occasions by his Divisional Officer in 1987 and 1988 for matters relating to his consumption of alcohol. On 26 February 1988, a report records that [Mr Trotter] had responded well to this counselling and had shown a marked improvement [T3, p.36]. By 15 July 1988, however… a document records that [Mr Trotter] had been carefully spoken to about his alcohol consumption by his Divisional Officer [T3, p.46]. Another document records an interview with his Divisional Officer on 26 July 1988 where he was again spoken to about his consumption of alcohol [and] was banned from drinking at ADFA and related functions [T3, p.47].
38. [Mr Trotter] was again interviewed by his Divisional Officer on 2 August 1988, at which [he]was advised that his Divisional Officer had made an appointment for him with a Student Counsellor [T3, p.48]. [Mr Trotter] attended this counselling on 4 August 1988.
39. The counselling session on 4 August 1988 includes notes of [Mr Trotter's] history and a conclusion that [Mr Trotter] was certainly drinking to excess, however his drinking was more controlled in 1988 mainly because of the alcohol bans placed on [him]. Further, that [he] was “still very immature and it appears that he does not want to take a more responsible approach to his drinking. I wouldn't be surprised at a future referral". Another record of the same interview records that [Mr Trotter] had been assessed and that the counsellor did not believe that [Mr Trotter had] a serious problem with alcohol. “He is able to control his drinking behaviour, although there have been occasions when, by choice, he has drunk to excess. However, if he continues to abuse alcohol and on a more regular basis, he has the potential to become a problem drinker. I have counselled him concerning the dangers of alcohol abuse. No further appointment necessary at this stage.” [T3 pp.49-51]
40. A document dated September 1988 records a further warning to [Mr Trotter] in August 1988 about an alcohol related incident and that [Mr Trotter] responded well to that warning [T3, p.54].
41. In late 1988 [Mr Trotter] was interviewed by the officer commanding his squadron about his drinking problem, who told [him] he needed to do something about his problem and was being closely watched for all the remaining time he spent at ADFA. The officer rang the ship to which [Mr Trotter] was going… and advised that [Mr Trotter] had a drinking issue while at ADFA and should be watched (Exhibit A5).
42. By March 1989, [Mr Trotter] had been required by his superiors to attend for an interview with the RAN Command Alcohol and Drug Programme Co-ordinator. The interview records the opinion of the Co-ordinator that [Mr Trotter] rationalised and minimised his drinking to prevent being accountable for his actions. The Co-ordinator referred [Mr Trotter] to a 6 week outpatient course and a 3 day workshop [T3 pp.58-59].
43. [Mr Trotter] was again referred by RAN’s Personal Services in September to October 1989 for counselling and education at the Queanbeyan Drug and Alcohol Service Clinic [T3, pp.62-63]. The record of [Mr Trotter's] attendance included that [he] saw it as largely bad luck that his drinking had come to the attention of the Navy while others that drank more had not. Further, that [Mr Trotter] wanted others to make his decisions for him.
44. There are no records of [Mr Trotter] having any alcohol problems between November 1989 and 1993. There is a reference to one attendance for treatment in 1993, again on referral by the Navy. From 23 February 1996 onwards, the documents show numerous references to [Mr Trotter] being referred by his superiors for treatment for alcohol problems.
45. [I agree with the Commission that n]one of the documents indicate that, at any time, [Mr Trotter] sought (absent a referral and a requirement that he attend for treatment) treatment for his problems with alcohol. The documents do record [Mr Trotter's] approach of minimising or rationalising his drinking to avoid responsibility for his actions.
46. [I agree with and adopt the Commission's view that n]one of the documents record or identify any matter that would have made [Mr Trotter] unwilling to obtain treatment and assistance. To the contrary, the documents record that [Mr Trotter's] behaviour at ADFA was the subject of disciplinary action and counselling by superior officers and was frowned upon by his peers who took steps to encourage [him] to deal with his problem.”
39. In his report (Exhibit A2) Dr Stevens said
“While Mr Trotter was clearly having problems with alcohol, with negative feedback from superiors and peers he was not referred to counselling until August 1988. At this time the counsellor recorded "He doesn't want to take a more responsible approach to his drinking. I wouldn't be surprised at a future referral". In the least it may have been beneficial at this time to refer Mr Trotter to a Drug and Alcohol Awareness Program to inform him of the consequences of his binge drinking should it persist. In an internal brief Ms G[r]oombridge wrote “I have counselled him concerning the dangers of alcohol abuse.” Further counselling to reinforce the message may have provided the catalyst for an attitude change. It is my opinion that the Navy did eventually respond to Mr Trotter's alcohol problems with a number of useful interventions, however it was well after his problems were obvious. I think that an earlier intervention may have assisted Mr Trotter to avoid some of his later problems.”
40. Dr Stevens' oral evidence confirmed this, especially that in the 4 August 1988 counselling session Lesley Groombridge had asked the correct questions but had failed to diagnose the condition correctly and had not addressed the real problem by providing for further follow-up including counselling and other interventions.
41. Dr Stevens also said that there was a real issue relating to the “will” of Mr Trotter. Mr Trotter's will was affected so that he did not recognise his problems and therefore was unable to respond to them. When asked by the Tribunal whether the effect of alcohol dependence upon the will was such that Mr Trotter was not in a position to seek out help, he answered (as paraphrased by Ms Jagot for the Commission) to this effect
“No, I am not saying that. What I am saying is that it was not sufficient for those around him to tell him to buck up, because the Applicant had a lack of insight into his problem. The Applicant had the capacity to get help, it was still possible for him to seek help, as people do so all the time at all stages in their alcoholism.”
42. Professor Mattick described Lesley Groombridge's approach as “lacklustre”. Groombridge could have done more. But the relatively brief interventions were seen as appropriate at that time, when intervention was largely limited to counselling and referral to Alcoholics Anonymous. Groombridge was not below standard. Professor Mattick did not agree that there had been a diagnostic failure. To suggest such a failure was to impose diagnostic criteria which were only then being developed in the United States and were not in currency in Australia at that time.
43. In his oral evidence on the issue of Mr Trotter’s “will” Professor Mattick confirmed his opinion in Exhibit R5 that the will had not been overborne
“I do not believe that he was unaware of his problems.. I point out that the issue of denial is sometimes raised. I do not believe it applies in this case. Denial does not feature as a symptom of alcohol abuse or alcohol dependence in any taxonomy in the world, including the DSM-IV and the ICD 10 from the World Health Organisation. Management was available to him, but he may not have chosen to take it up, preferring to drink instead. Drinking is an appetitive problem where the individual enjoys the consumption of alcohol. Denial is not a feature of the appetitive problem that he had.”
44. Major General Rossi also expressed a view on the adequacy of Mr Trotter's management (Exhibit A8)
“Mr Trotter was identified as an ‘at risk’ student and was referred to a psychologist, however he was not afforded the whole range of support that constituted the management regimen available at the time. Because he was under the administrative and professional care and control of the staff at ADFA, it is asserted that he experienced an inability to obtain appropriate clinical management for his alcohol abuse. Had the full regimen of management occurred when he was identified as ‘at risk’, the outcome may well have been different.”
45. Ms Dunn, a drug and alcohol professional who also knew Mr Trotter and his family personally, said in Exhibit A9
“It is not for me to comment on how the defence services might have dealt with these problems in any detail. However, the ADFA environment, with its easy access to alcohol, and the pressures (including peer pressures) under which the cadets lived and worked, called for an appropriately-structured program. Looking back, it would have been in Michael Trotter's best interests, as well as the interests of ADFA, if he had been offered a program of treatment when it was apparent that his drinking was affecting his performance, including his academic results.
In the circumstances, I believe that had Michael Trotter been referred to the ACT Alcohol and Drug Service, or a similar service, for professional assessment and appropriate treatment, his disease of alcoholism may not have progressed to the life-threatening stage that I understand it eventually reached.”
46. Mr Crabb for Mr Trotter broadly contended that Mr Trotter was unable to obtain appropriate clinical management because
· Mr Trotter's alcohol dependence was not diagnosed (relying on the counselling session with Lesley Groombridge) and therefore Mr Trotter was not advised of the treatment options nor ordered to go to treatment
· Mr Trotter had a lack of awareness due to the problem of the will and denial
I do not accept either proposition.
47. As the Commission has submitted, Mr Trotter had available to him at all times the full services of a medical centre, student counsellors, chaplains, his commanding officer and Divisional Officer, as well as the encouragement of his superior officers and peers to accept he had a problem and needed to deal with it. Mr Trotter had time away from ADFA and was centrally located and could easily have elected to attend an external GP, counselling or other program as an alternative. Despite all of these capacities, Mr Trotter took no step to obtain assistance in 1987, and attended counselling in 1988 because he was required to do so by his Divisional Officer.
48. Given the location of the ADFA premises within Canberra, and the facilities available within ADFA, it is clear that there was no inability to obtain treatment either privately or from the ADFA staff, had Mr Trotter sought treatment by taking any positive step in that direction.
49. I accept Professor Mattick's evidence that there was no diagnostic failure in August 1988.
50. I adopt the Commission's submissions
“50. The fact that [he] was not diagnosed with a serious alcohol problem until March 1989 (and not on 4 August 1988) does not mean that there was any inability on the part of [Mr Trotter] to obtain appropriate clinical management due to a misdiagnosis – the possibility adverted to in Wedekind… The outcome of the 4 August 1988 counselling session (where [Mr Trotter] was counselled about the dangers of alcohol abuse) was that he was not compelled to attend again during the balance of that year. But [Mr Trotter] knew the counselling service was available and did not avail himself of the service again. None of the evidence indicates that there was operating on [Mr Trotter] any external factor of the kind referred to in Brew which would have rendered [him] unable to seek treatment for his problem either within or outside ADFA.” (Emphasis original)
51. Even if there was a diagnostic failure, it was not of the kind adverted to by Justice Kenny in Wedekind as being capable of constituting an inability to obtain treatment. As the Commission submitted
“6. While Kenny J in Wedekind was prepared to assume that a diagnostic failure might constitute an inability, she did not so decide (as she did not need to). Her preparedness to make that assumption was in the context of a case where service was during war time and Mr Wedekind had been posted to the Northern Territory. The assumed diagnostic failure here could not constitute any form of inability to obtain appropriate clinical management. There was a wide range of options available to [Mr Trotter].. He was located 10 minutes from Canberra, to which he went nearly every weekend. Mr Trotter was free from Friday afternoon to Sunday midnight in his first year and more frequently thereafter. [He] knew that chaplains were available to discuss personal problems, but said they were not “trusted”, as they might tell superior officers. That could hardly have been [Mr Trotter's] concern about his drinking – superior officers were already urging [him] to take steps to address his issues. [Mr Trotter] also had the Divisional system clearly explained to him and knew that he could approach his Divisional officer with personal problems.”
52. Furthermore, any diagnostic failure would not mean that Mr Trotter had an inability to obtain appropriate clinical management from 1987 onwards
“5. …As Dr Stevens said – he was in practice in 1987, any person could seek assistance from him without any referral, about 10 other practitioners also practised in Canberra at the time with special expertise and [Alcoholics Anonymous] was in existence… According to [Mr Trotter], there was an Army medical centre within 10 minutes walk… where GPs were available…
…
9. [In addition] there was no diagnostic failure in March 1989 (when [Mr Trotter] was required to attend a 3 day workshop). Nor was there any such failure in September and October 1989 when [he] was required to attend a course in Queanbeyan. There is no suggestion that those interventions were other than appropriate.”
53. Was Mr Trotter unable to obtain appropriate clinical management due to problems of the will or denial? In my view the answer is clearly no. Professor Mattick's evidence was convincing and is supported overwhelmingly by the contemporaneous evidence. Mr Trotter was aware of his problems. Dr Stevens clearly said that he was not of the opinion that the effect on Mr Trotter's will was such that he could not seek help. In my opinion, the fact is simply that he did not seek help. He was having a good time and he thought that those who tried to get him to seek help were constraining his ability to enjoy himself.
54. I refer again to the extracts from Brew set out at paragraphs 23 and 25 above.
55. On the evidence available to me I cannot find to my reasonable satisfaction that Mr Trotter was unable to obtain appropriate clinical management for his condition as those terms are elucidated in Brew. Indeed to the contrary, I adopt Professor Mattick's words in his first report (Exhibit R4)
“He has had good access to treatment, being linked with treatment personnel on a number of occasions and being referred to enter treatment. He has also self-referred to treatment and has the ability to do so. He has been detoxified on four occasions.
He has had more treatment for alcohol abuse and dependence than many individuals might have. I cannot see there is any basis to suggest that he was in some way unable to receive appropriate clinical management for his alcohol problems.”
56. Mr Trotter is therefore unable to satisfy the relevant factor in either of the two Statements of Principles (factor 5(e) in Instrument No.77 of 1998 and factor 1(e) in Instrument No.6 of 1994).
57. Having reached this view, I do not need to address questions 4 or 5 set out at paragraph 27 above.
Decision
58. The reviewable decision of 7 May 1998 is affirmed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
...........[Trevor Mobbs]........................................
AssociateDate/s of Hearing 14-15 July 2003
Date of Decision 24 July 2003
Date of Written Reasons 7 August 2003
Counsel for the Applicant Mr Paul Crabb
Solicitor for the Applicant Capital Lawyers
Counsel for the Respondent Ms Jayne JagotSolicitor for the Respondent Ms Angela Nanson, Australian Government Solicitor
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