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PRACTICE AND PROCEDURE - interlocutory application for direction that Applicant undergo second occupational therapy assessment - process of balancing risk to Applicant with interests of justice - where real risk of injury to health of Applicant - where Agency had prior opportunity to have Applicant assessed - application refused

National Disability Insurance Scheme Act 2013 (Cth)

McKinnon v Commonwealth of Australia & Ors [1998] FCA 1456

National Disability Insurance Agency, Operational Guideline - Planning

1. On 23 March 2017, Ms Liddle applied to the National Disability Insurance Agency for access to the National Disability Insurance Scheme. By letter of 4 May 2017, her request for access was denied, which decision was affirmed on 15 August 2017.
2. On 13 September 2017, Ms Liddle applied to the Tribunal for review of the decision dated 15 August 2017. As part of the alternative dispute resolution process conducted by the Tribunal prior to the matter being set down for final hearing, the parties considered the need for a report by an occupational therapist.
3. After some discussion with the Agency, Ms Liddle's solicitors engaged an occupational therapist to assess Ms Liddle and to provide a report. The assessment was carried out and a copy of the report was provided to the Tribunal and to the Agency.
4. The Agency then requested that Ms Liddle undergo another assessment by a different occupational therapist, which request Ms Liddle declined.
5. On 7 June 2018, after hearing from both parties, I refused an application by the Agency that Ms Liddle be directed to undergo an assessment by an occupational therapist of the Agency's choosing.
6. Although the Agency subsequently agreed to grant Ms Liddle access to the Scheme without the second assessment, I now provide written reasons for my decision not to direct Ms Liddle to undergo a second assessment.
7. In considering these reasons it should be clearly understood that the outcomes of applications such as the present depend on the particular facts and circumstances of the cases in which they arise. I do not intend to suggest, and should not be taken as suggesting, that the Tribunal will never direct an applicant to undergo a second occupational assessment.

1. By letter of 28 November 2017, the solicitors for Ms Liddle wrote to the Agency and provided a summary of the available evidence, and arguments based thereupon, to justify Ms Liddle being granted access to the Scheme. Following this advice, the Agency requested that Ms Liddle undergo an occupational therapy assessment. Ms Liddle was agreeable to this proposal but requested that the Agency meet the cost of the assessment and report. The Agency refused this request.
2. The subsequent progress of the application is set out at [4] of the submissions filed on behalf of Ms Liddle dated 31 May 2018:

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iv. In light of the [Agency's refusal], the Legal Aid Commission determined to fund the assessment. An OT from Kurri Kurri Community Services was engaged to do this assessment and report. The author was informed an OT by the name of Ms Megan Williams was available to do this assessment. On 30 January 2018 a letter of instruction was sent to Ms Williams, although as it transpires Ms Anne Hunter in fact ended up doing the assessment.

v. On 6 February 2018, Ms Hunter provided her report based on her assessment the previous day.

vi. On 8 February 2018, the Applicant served and filed Ms Hunter's report with a cover letter to the Respondent of the same date.

vii. On 19 March 2018, following a case conference on the same date, the Registrar issued a direction that:

i. On or before 26 March 2018, the Respondent must give to the Tribunal and Applicant copies of any further questions or other requests for information in relation to the application for review.

ii. On or before 6 April 2018, the Applicant must give to the Tribunal and the Respondent the Applicant's response to the Respondent's request/s for further information, and any further evidence on which the Applicant intends to rely.

viii. On 26 March 2018, the Respondent emailed the Tribunal and Applicant a list of questions they wished Ms Hunter to address. At this time, the Respondent also requested that the Applicant undergo a further OT assessment.

ix. On 29 March 2018, the Applicant sent a letter of instruction, including questions from the Respondent's list, to Ms Hunter requesting that she provide a supplementary report.

x. On the same date, the Applicant emailed the Respondent advising the Applicant does not consent to the further OT assessment. The Applicant also served on the Respondent the Applicant's original letter of instruction to Kurri Kurri Community Services dated 30 January 2018 ...

xi. On 9 April 2018, Ms Hunter provided her supplementary report. On 10 April 2018, Ms Hunter's report was filed and served, together with her Curriculum Vitae, the signed AAT Coversheet (which was provided to Ms Hunter with the Guideline for Persons Giving Expert and Opinion Evidence with the Applicant's original letter of instruction dated 30 January 2018), and the Applicant's letter of instruction dated 29 March 2018.

1. In her statement dated 29 May 2018, Ms Liddle said, in part:

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3. The assessment that Anne Hunter did at my house took approximately 3 hours and was really hard work and really tiring. For most of the time she was here, I was either talking or doing tasks. She really grilled me. I hardly had a break for 10 minutes the whole time. I have shortness of breath all the time so even speaking or walking from the lounge to the toilet or making myself a cup of tea isn't easy for me, let alone doing all that extra stuff she had me do. There were times when I couldn't breathe properly, was coughing, and had to use my puffer. I also got upset towards the end because I feel like I am losing my independence.

4. Afterwards I was stuffed. I felt like I'd run a marathon. It was so tiring. I'm not used to doing that much in one go. After she left, I went and had a sleep.

5. For a week afterwards, I was more tired than usual, I ached more, and found it hard to catch my breath a lot more. It took me a lot longer to do things because I was worn out from that day.

6. if I have to do the OT assessment again, I am worried that I could have a severe exacerbation and end up in hospital.

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8. I've been admitted to hospital quite a few times over the years. Sometimes I sit in emergency for a few hours then they let me go, and sometimes I'm admitted for a few days. There's [sic] also been times when I've had a drip at home and the nurses have come out daily to change it and help me. The hospital admissions are usually because of exacerbations due to infections or doing too much ...

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10. The last thing I want to do is end up in hospital. My specialist said to me last time I went into hospital that he didn't think I was going to go home.

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1. In its written submissions dated 7 May 2018, the Agency argued that the most appropriate course would be:

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24. ... for the Tribunal to direct the applicant to attend an in-home OT assessment commissioned by the respondent so as to enable the production of an OT report by the respondent. Such a direction is justified by the need to ensure that:

24.1 the respondent is accorded procedural fairness and given a reasonable opportunity to test the applicant's evidence and present its case;

24.2 the Tribunal has before it all relevant material to ensure it is fully informed as to the issues arising in the application for review; and

24.3 the Tribunal is in a position to make the correct and preferable decision.

25. While the respondent acknowledges that further assessment by an occupational assessment may cause the applicant some level of discomfort and fatigue, it respectfully submits that in circumstances where the applicant relies on OT evidence, the level of discomfort caused by her undergoing a further OT assessment are outweighed by the interests of justice that the respondent be entitled to defend their case.

...

1. In the alternative, the Agency argued the Tribunal ought to remit the matter to the Agency for reconsideration, enabling the Chief Executive Officer of the Agency to exercise the power under s 26 of the National Disability Insurance Scheme Act 2013 (Cth) to request Ms Liddle to undergo a further assessment.
2. A third possible course was for the Tribunal to refuse to accept into evidence the report obtained by Ms Liddle unless she agreed to a further assessment.

RELEVANT PROVISIONS OF THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)

1. Section 20 provides:

If a person (the prospective participant) makes an access request, the CEO must, within 21 days of receiving the access request:

(a) decide whether or not the prospective participant meets the access criteria; or

(b) make one or more requests under subsection 26(1).

1. Section 26 provides:

(1) The requests the CEO may make under this subsection after a prospective participant has made an access request (see paragraph 20(b)) are as follows:

(a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria;

(b) that the prospective participant do either or both of the following:

(i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;

(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.

(2) If:

(a) information or one or more reports are requested under subsection (1); and

(b) the information and each such report are received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested;

the CEO must, within 14 days after the last information or report is received:

(c) decide whether or not the prospective participant meets the access criteria; or

(d) make a further request under subsection (1).

(3) If:

(a) information or one or more reports are requested under subsection (1); and

(b) the information and each such report are not received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested;

the prospective participant is taken to have withdrawn the access request, unless the CEO is satisfied that it was reasonable for the prospective participant not to have complied with the request made by the CEO within that period.

1. Sections 20 and 26 make clear the intention of Parliament that requests for access to the Scheme be dealt with quickly. The Chief Executive Officer is given only 21 days to decide whether to request that an applicant undergo an assessment. Similarly, applicants are subject to strict time restraints; if they are not met, an access request is taken to have been withdrawn.
2. In Ms Liddle's case the Chief Executive Officer decided to refuse access to the Scheme without requesting that she undergo an assessment by an occupational therapist. While there may be circumstances in which the Tribunal would make the direction sought for the purposes of the proceeding before it, the starting point should be that a request that an applicant undergo an assessment be made in accordance with s 20. The Agency should always be required to show good reason why an applicant should be directed to undergo an assessment after the 21 day period has expired.

1. In McKinnon v Commonwealth of Australia & Ors,[1] Hill J considered the circumstances in which a plaintiff might reasonably resist a medical examination. While articulated in an altogether different context, the following principle is susceptible of general application:

There is nothing in [the reasons for decision in Prescott v Bulldog Tools Ltd [1981] 3 All ER 869], nor would I expect there to be, which would support a proposition that a plaintiff could succeed in resisting an examination merely because he believed in good faith that the examination might be detrimental to him. A different view would necessarily follow if the examination was one which involved a real risk of injury to health and was seen as such by the plaintiff. The more severe the risk, no doubt, the greater it would overweigh the interests of the defendant. The less severe, the more difficult the balancing process. If the risk is such that it is so very slight as not to constitute a real risk, the applicant's fears about the suggested risk would not outweigh the interests of justice that a defendant be entitled to defend his case as he thinks fit. However, I would accept the proposition that once the risk is a real one, then the Court would be slow indeed to impose it upon a plaintiff, if ever.

As proceedings before the Tribunal are non-adversarial, this principle weighs in favour of the argument put on behalf of Ms Liddle even more than it would in judicial proceedings.

1. On the basis of the unchallenged evidence of Ms Liddle, I am satisfied that there is a real risk of her suffering physical injury (which could be sufficiently serious to require admission to hospital) should she be directed to undergo a second assessment.
2. Ms Liddle's reluctance to undergo a second assessment is supported by the report of Ms Hunter, which refers to Ms Liddle coughing and becoming short of breath on several occasions during the assessment Ms Hunter performed.

1. In this application the Agency had two opportunities to have Ms Liddle assessed by an occupational therapist of its choosing: before the initial decision rejecting her access request, and again before the assessment by Ms Hunter. Although not expressed, I am satisfied that on the latter occasion the Agency could have had input to the selection of the expert to carry out the assessment. The Agency decided not to avail itself of either of these opportunities.
2. In addition, there is nothing to suggest that the report produced by Ms Hunter is in any way biased towards Ms Liddle. There was no previous relationship between them. In fact, Ms Hunter was not the therapist to which the request for an assessment was initially directed. The instructions given by Ms Liddle's solicitors were stated fairly and Ms Hunter was informed of her obligations in providing a report to the Tribunal.
3. The Agency did not advance any reason why another assessment and report would provide any additional assistance to the Tribunal in reaching the correct decision. Had the matter proceeded to a final hearing on the merits, the Agency would have had the opportunity to test Ms Hunter's evidence, including her opinions, by way of cross-examination.

1. Although there exists no Operation Guideline for the making of requests for assessments in relation to access requests, the Planning Operational Guideline at [8.3], insofar as it relates to the making of requests for assessments in preparing and approving participants' plans, is indicative of the approach which should be adopted:

...

The NDIA will only request further information or require a participant to undergo an assessment or examination where it is reasonably necessary to prepare, or decide whether to approve a statement of participant supports. For example, the NDIA may consider it necessary to make one of the requests outlined above for participant's with very complex care needs.

Also, before requesting further information or requiring that a participant undergo an assessment or examination, the NDIA will review existing information. Where existing information is inadequate or inconsistent, for example where older assessments do not accurately reflect a participant's current support needs, the NDIA will consider making one of the requests outlined above.

The power to request information or to require a participant to undergo an assessment or examination must be exercised carefully and in accordance with the objects and general principles in the NDIS Act.

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1. Taking all of the above considerations into account I decided that, on the facts of this matter, I should not make the direction sought by the Agency.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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[1] [1998] FCA 1456 at [24].