Jansen v Secretary, Department of Employment and Workplace Relations

REASONS FOR JUDGMENT 1 The applicant Mr Bernard Jansen seeks an extension of time to appeal against a decision of the Administrative Appeals Tribunal which affirmed a decision of Centrelink that he was ineligible for a Disability Support Pension on the basis of depression/anxiety and alcohol abuse: Re Jansen and Secretary, Department of Employment and Workplace Relations [2006] AATA 367. Centrelink had determined that he was not eligible because he had declined various treatment options recommended by medical practitioners. 2 Counsel addressed full and helpful arguments on the merits of the proposed appeal, I would think to no less extent than would have been the case on a substantive appeal. I shall first consider the issue of merits before turning to the question of delay and Mr Jansen's explanation therefor. 3 Before the Tribunal Mr Jansen gave evidence that he was born in 1966 and had held various manual jobs including working at a timber yard, vineyard and sawmill. His last full time job was twenty years ago. He is currently unemployed. He described a history of anxiety, depressive disorder and panic attacks since he was fifteen. He sought treatment from a psychiatrist in Healesville some years ago but did not find it helpful so discontinued the sessions after several months. He has tried various medications including anti-depressants but found them of little value. They caused side-effects. He now self medicates with alcohol, which he find eases his tension. He occasionally takes Murelax, an anti-depressant, but is reluctant to take this more frequently because he understands it may be addictive. He has engaged in excessive alcohol consumption since age 15. He has never had any treatment for alcohol problems. 4 Mr Jansen noted the various treatment options suggested by various medical practitioners, but told the Tribunal that he would not be able to attempt detoxification at present because he was not ready to give up drinking. Similarly he doubted that tests on his liver etc. would be useful, however he said that he would seek advice from his general practitioner. He reiterated his reluctance to take prescribed medication for depression/anxiety without an assurance from his doctor that there would be no serious side-effects. Mr Jansen explained that in the past he has attended counselling arranged by his church, and found it helpful. He said he would consider resuming this in an effort to address the many issues in his life; however he did not see the desirability of undertaking other forms of counselling. 5 In a report dated 23 October 2005 Dr Ian Katz, consultant psychiatrist, said that Mr Jansen "…presents with at least a moderately severe mixed anxiety disorder with chronic but fluctuating depression. Clearly alcohol abuse and dependence and possible ongoing gambling and cannabis abuse are complicating his presentation and the severity of his illness at present. It would be my view that Mr Jansen at present is not capable of performing sustained work as result of his illness, and is likely to use gambling and various substances to try to self-medicate his primary psychopathology." 6 Dr Katz made recommendations for treatment including medical investigations to ascertain liver damage and organic causes or contributors to his anxiety state, admission to a detoxification facility, a reassessment of his psychiatric state, psychological counselling, use of the anti-alcohol craving drug Naltrexone, transfer to a Centrelink Sickness Certificate Welfare payment, a referral to a social worker and to the Commonwealth Rehabilitation Scheme to assist with job assistance and vocational rehabilitation when his psychiatric conditions improve. 7 In oral evidence before the Tribunal Dr Katz said that the treatment of Mr Jansen's excessive alcohol consumption was fundamental to the treatment of the other conditions. He emphasised that any treatment program should be designed to meet Mr Jansen's needs, but accepted that Mr Jansen had declined his offers of assistance. 8 Dr G Stephens, a treating doctor, in a report dated 11 April 2005, said that he expected Mr Jansen's condition would impact on his ability to function for more than 24 months and that this impact would fluctuate during that time. In his view MrJansen may require further anti-depressant and/or counselling. 9 Dr J Lane of Health Services Australia, in a report dated 3 May 2005, said that Mr Jansen was likely to be unfit for work for award wages for approximately six to twelve months until his psychiatric condition is fully treated. Rehabilitation, psychological counselling and retraining may help with a return to suitable full time (low stress initially) work if he cannot return to his usual job. He is motivated to do suitable work when he is well enough. Review in six to twelve months was suggested if he has not been able to return to full time work. 10 The relevant criteria for a Disability Support Pension are set out in s 94 of the Social Security Act 1991 (Cth) which provides: "94(1)A person is qualified for disability support pension if: … (b) the person's impairment is of 20 points or more under the Impairment Tables; … 11 Schedule 1B of the Act makes provision, in relation to the Tables for the Assessment of Work-Related Impairment for Disability Support (the Impairment Tables) as follows (to facilitate discussion I have inserted some sub-par lettering in par 6): … 4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised … 5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years. 6.[a] In order to assess whether a condition is fully diagnosed, treated and stabilised, one much consider: · what treatment or rehabilitation has occurred; · whether treatment is still continuing or is planned in the near future; · whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years. [b] In this context, reasonable treatment is taken to be: · treatment that is feasible and accessible ie, available locally at a reasonable cost; · where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient. [c] It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. [d] In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised. [e] In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should: · evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and · indicate why this treatment is reasonable; and · note the reasons why the person has chosen not to have treatment." 12 In its decision the Tribunal quoted from the decision of Smithers J in Dragojlovic v Director-General of Social Security (1984) 1 FCR 301 at 305 where his Honour said: "In any case in which treatment is refused the question for the respondent or the Tribunal is not whether the refusal is reasonable or otherwise, but whether, on the probabilities, the refusal is genuinely based on grounds which, in fact, compel the person concerned, acting honestly, so to refuse …" 13 The Tribunal went on to say that that view was adopted by the Full Federal Court in Koutsakis v Director-General of Social Security (1985) 10 FCR 42. The Tribunal continued at [12]: "In McKinnon v Commonwealth of Australia [1998] FCA 1456 the Court referred to the balancing exercise between the possible harm to an applicant in undertaking treatment and the interests of the respondent in having the treatment carried out." 14 The Tribunal's reasoning appears in the following paragraphs: "13. The Tribunal accepts the medical evidence from Dr Katz and Dr Lane that treatment options comprising a range of therapeutic measures would be appropriate to Mr Jansen's particular needs. The Tribunal notes that his treating doctor sees possible value in medication and counselling. 14. The Tribunal acknowledges that some time ago Mr Jansen experienced serious side-effects from medication for depression/anxiety, and accepts that he may be reluctant to undergo similar treatment involving medication without an assurance from his treating doctor that there will be no serious side-effects. He stated that he retains the option of occasional use of Murelax for depression/anxiety. 15. Clearly Mr Jansen is not prepared to consider detoxification or other measures to address his alcohol consumption because he does not want to cease drinking, and he is not willing to consider counselling other than that organised by his church. He would consult his treating doctor about tests such as liver function etc. before agreeing to undertake them. 16. The Tribunal concludes that the risks to Mr Jansen from undertaking the range of treatment options are slight and do not constitute a real risk of harm to him. The recommended treatment is reasonable in the circumstances and is in his best interests. Despite his particular fear of serious side-effects from depression/anxiety medication, Mr Jansen has not demonstrated a genuine reason for refusing other treatment options. The Tribunal finds that, in all the circumstances, Mr Jansen's refusal to undertake the range of treatment options is not genuinely based on grounds that compel him, acting honestly, to refuse. Therefore his conditions are not fully documented, diagnosed conditions which have been investigated, treated and stabilised, and could not be assigned an impairment rating under the Impairment Tables, and he does not satisfy the qualification requirements of s 94(1)(b) of the Act. Consequently he cannot satisfy s 94(1) of the Act, and the Tribunal does not need to consider whether he had a continuing inability to work under s 94(1)(c) of the Act."