Veronica Farrell and Comcare
[2014] AATA 113
[2014] AATA 113
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4871, 2013/6666
Re
Veronica Farrell
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 3 March 2014 Place Sydney The Tribunal affirms the decision dated 10 September 2013 which allowed for once weekly psychological consultations from 26 August 2013 up to and including 30 November 2013.
The Tribunal sets aside the decision dated 16 December 2013 which allowed for twice weekly psychological consultations for the first 12 weeks and then once weekly psychological consultations from week 13, for the period up to and including 15 May 2014 and instead decides that up to 73 sessions will be allowed in the 12 month period commencing 16 December 2013.
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Ms N Bell, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – reasonable medical treatment – reasonable duration and frequency of psychological treatment – expired decision under review affirmed - decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 16
REASONS FOR DECISION
Ms N Bell, Senior Member
3 March 2014
Veronica Farrell was employed by the Commonwealth Bank of Australia from 1979 until her medical retirement in 1990 following exposure to armed hold ups and the psychiatric injury she sustained as a result. Ms Farrell has not worked since that time.
There is no dispute that she remains unfit for work due to her post traumatic stress disorder. Liability for compensation has always been accepted, except in relation to compensation for medical expenses. A dispute about the duration and frequency of psychiatric treatment for Ms Farrell arose in early 2013.
Ms Farrell made three applications to the Tribunal as follows:
(i)The first application concerned the reviewable decision dated 4 June 2013 which allowed for 56 psychological counselling sessions as well as 4 phone sessions between the period of 1 February 2013 and 30 July 2013, which amounts to twice weekly psychological consultations for the period. This application was withdrawn at the commencement of the proceedings as the period to which it relates had expired.
(ii)The second application concerns a reviewable decision dated 10 September 2013 which allowed for once weekly psychological consultations from 26 August 2013 up to and including 30 November 2013. The period to which this decision relates has also expired.
(iii)The third application concerns a reviewable decision dated 16 December 2013 which allowed for twice weekly psychological consultations for the first 12 weeks and then once weekly psychological consultations from week 13, for the period up to and including 15 May 2014.
The first of the applications has been withdrawn, the period of its operation having expired. The second application is pressed, notwithstanding that its operation has also expired. The third application applies to a period that is still current.
ISSUES
Over the years, Ms Farrell has had a wide range of treatment from many different psychiatrists and psychologists and has had a large number of hospital admissions for her psychiatric illness.
Section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides that where an employee suffers an injury, Comcare is liable to pay the cost of reasonable medical treatment obtained in relation to the injury.
At the heart of this dispute are these questions:
(i)What is the reasonable frequency of psychological counselling sessions per week for Ms Farrell’s compensable condition?
(ii)What should be the duration of a decision on this question?
REASONABLE FREQUENCY OF COUNSELLING SESSIONS PER WEEK
Ms Farrell gave evidence to the Tribunal and confirmed the statement she had made which was also taken into evidence. She is an articulate but troubled person and it was clearly difficult for her to take part in the Tribunal proceedings.
Ms Farrell explained that she had recently commenced counselling sessions with a new psychologist who was about to go on leave. She was adamant that fortnightly sessions were not sufficient to help her. She said that putting a time limit on the period for which she could have weekly sessions was “like putting a gun to her head”.
Ms Farrell explained that she was currently not on any medication and that she had asked her new psychologist to refer her to a psychiatrist. She said that picking a date in advance for the reduction of frequency of therapy was unworkable. She said a period of 12 to 18 months was required to establish trust with a counsellor. She also noted, in relation to the latest reviewable decision, the intervention of the holiday period and the imminent expiration of the 12 week period of twice weekly sessions.
Dr Andrew McClure, Consultant Psychiatrist, said Ms Farrell’s condition is very complex, with post-traumatic stress disorder overlaid on a diagnosis of borderline personality disorder. He described Ms Farrell as being at real risk of suicide. He said the function of regular counselling sessions is to assist the person to come up with healthier strategies to maintain mood and zest for life. Mood fluctuations, he said, can lead to suicide. In his report of 30 October 2013, he said Ms Farrell is at high risk of suicide and needed ongoing psychological support, not only to maintain her functioning, but to keep her alive.
Dr McClure said it made sense, given her history, that a 12 to 18 month period was required for Ms Farrell to establish trust with a new counsellor. He said, however, that too frequent sessions can produce dependence and regression. He said that twice weekly, moving to weekly is an often used model in many programs.
However, Dr McClure said it is very difficult to prescribe in advance the point at which the number of sessions per week should be reduced and some flexibility must be incorporated into the arrangement. He said that his assessment of Ms Farrell suggested to him an aim of moving from twice weekly to once weekly sessions after three months, but that would be as tolerated by Ms Farrell and may involve some return to twice weekly sessions if there are relapses in the process of reduction.
Dr Anne-Marie Rees, Consultant Psychiatrist, agreed that Ms Farrell’s condition is complex. She diagnosed severe post-traumatic stress disorder and depression with underlying borderline personality disorder. She described Ms Farrell’s multiple crises over the years and her many hospital admissions and her psychotherapy for nearly 20 years with minimal improvement. Dr Rees considered intensive psychotherapy was inappropriate for Ms Farrell and, in this respect she agreed with Dr McClure. She considered that supportive psychotherapy would be of more benefit to her.
Dr Rees recommended, in her report of 15 May 2013, supportive psychotherapy limited, eventually, to once each fortnight, weaned down over a few months.
However, in oral evidence to the Tribunal she said Ms Farrell requires weekly cognitive behavioural therapy sessions with a psychologist with visits to a psychiatrist once monthly. She confirmed this by a supplementary report after the hearing. She predicted there will be times of crisis. She suggested that, at these times, Ms Fuller could obtain crisis management in the public health system.
Dr Rees agreed that the aim of supportive psychotherapy is to maintain, rehabilitate and support.
A short note from Mr Barter, Ms Farrell’s recently engaged psychologist was also provided. In that note Mr Barter expressed his opinion that Ms Farrell should have as many sessions as possible. I note that this approach directly conflicts with the views of both Dr McClure and Dr Rees.
There is little distance between the views of Dr McClure and Dr Rees. They both consider that her condition is very complex; they both consider that intensive therapy will not assist, and may in fact harm, Ms Farrell; they both consider that Ms Farrell’s functioning will be maintained and supported by regular, limited supportive therapy; they both consider that any reduction of frequency of sessions must be gradual.
The only difference between them is that Dr McClure is concerned to recognise the need for flexibility, the difficulty of predicting the point at which it will be appropriate for the frequency of sessions to be reduced and the need to address regression at times throughout the course of the treatment. Both Dr McClure and Dr Rees recognise the need for a reduction to be gradual. Dr Rees also recognises the need for regression or crisis response, but considers that can be catered to by a body other than Comcare, ie, the public health system.
I prefer Dr McClure’s recognition of the need for flexibility. I do not consider it appropriate, when both Drs agree that regression or crisis is likely to occur at points, to relegate that as the responsibility of the public health system, rather than the responsibility of the body that has accepted liability for the injury.
I am also mindful of Dr McClure’s opinion that Ms Farrell is at high risk of suicide and that ongoing psychological support not only to maintains her functioning, but keeps her alive. At the same time, I am mindful of the experts’ opinions that too frequent sessions may be harmful to Ms Farrell.
On this basis, I consider that a better approach is to build in some room for flexibility by nominating a number of sessions that may be had by Ms Farrell within a specified period, taking into account the gradual reduction recommended by both experts (although Dr Rees considered that because Ms Farrell had not had therapy for some time she needs no weaning off period, but I note that Ms Farrell has now commenced to see Mr Barter), and including a further parcel of sessions to accommodate any regression or crisis. I note that the nomination of a number of sessions, rather than a scheduled program, is not a novel approach in this case. That was the nature of the decision in the first application by Ms Farrell.
It was submitted on behalf of Ms Farrell that another approach that would enable flexibility is to allow for “up to two sessions per week”. However, I think that may retard Ms Farrell in her progress away from the intensive therapy and, as both experts say, may be damaging to her. In this regard, I am also concerned about Mr Barter’s stated approach. It is better that Ms Farrell have a finite number of sessions available to her based on the ultimate goal of one session per week, gradually reducing from two, that also allows for those occasions when her progress falters and she requires additional support.
APPROPRIATE DURATION OF DECISION
In her oral evidence Dr Rees said that the longer a decision about treatment can be projected, the better. She said that having the duration of the decision unknown is very stressful and will make Ms Farrell regress. She went as far as to say that she would support a decision that had a duration of ten years. In a supplementary report provided after the hearing, Dr McClure said he considered that an initial period of treatment of 12 months duration, with three months at twice weekly and the remainder at once per week, would be appropriate for Ms Farrell. I remain mindful of his concerns about flexibility.
I consider it preferable that the duration of any decision be for a period of no less than 12 months.
On this basis, I consider that the preferable decision is to allow for 73 sessions in the 12 month period commencing 16 December 2013. That period comprises 52 weeks. One quarter of that period is 13 weeks. Notionally, that 13 weeks would, on the principles outlined above, involve 26 sessions. The remaining 39 weeks would involve 39 sessions. A further 8 sessions, to provide some flexibility to accommodate crises and regression, brings the total number of sessions to 73.
In relation to the second reviewable decision, dated 10 September 2013, as the period that it concerned has expired, a variation can be of no effect. I will affirm that decision.
DECISION
The Tribunal affirms the decision dated 10 September 2013 which allowed for once weekly psychological consultations from 26 August 2013 up to and including 30 November 2013.
The Tribunal sets aside the decision dated 16 December 2013 which allowed for twice weekly psychological consultations for the first 12 weeks and then once weekly psychological consultations from week 13, for the period up to and including 15 May 2014 and instead decides that up to 73 sessions will be allowed in the 12 month period commencing 16 December 2013.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. .......[Sgd].................................................................
Associate
Dated 3 March 2014
Date of hearing 17 December 2013 Date final submissions received 16 January 2014 Counsel for the Applicant Mr G Horan Solicitors for the Applicant Turner Freeman Lawyers Counsel for the Respondent Ms R Henderson Solicitors for the Respondent AGS
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