Thiele v Commonwealth of Australia

The Tribunal's Construction of s16(1) and the Definitions As I understand its Reasons, the Tribunal considered that the s4 definition of medical treatment in para (b) must be interpreted as a whole and in its statutory setting. As the s4 definition elsewhere uses the phrase "under the supervision of", the Tribunal then indicated that: "it is thus reasonable to approach the words 'at the direction of' in para (b) as referring to some activity different to the activity of supervising. The difference lies in the degree of control of the doctor, the activity of directing requiring less control than the activity of supervising; so much is indicated in Thiele v Commonwealth (1990) 11 AAR 376 at 381, per Hill J.": Reasons, para 6. For my own part I can find nothing in Thiele's case at the page mentioned or at p382 which contains the indication suggested. Justice Hill does (at 381) accept that (i) "an exercise regimen, at least one carried out under the supervision of a doctor, would qualify as either medical or therapeutic treatment."; his Honour did consider, but expressed no concluded view upon, whether "treatment" itself had inherent within it the notion of "supervision" by someone; and (iii) he noted that while para (a) of the s4 definition (not set out here) required that medical or surgical treatment be "by, or under the supervision of" a doctor, therapeutic treatment need only be obtained "at the direction of" a doctor: at 382. The Tribunal went on to adopt what it took as the preferred (but as I have noted not the concluded) view of Hill J which it expressed thus: "an activity might be treatment within the scope of para (b) even if it be the case that a doctor or some other person acting under the direction of the doctor was not present at the place where the treatment took place": Reasons, para 11. This conclusion was necessary to the Tribunal's ultimate decision in that no treating doctor or "delegate" was present at Ms Watson's gymnasium when she exercised. Having concluded that the gym program exercises were a form of therapeutic treatment - I will return to this below - the Tribunal then turned to the question whether it was "obtained at the direction of" a doctor. Because of the use of the word "supervision" in the para (a) definition, it was concluded that "direction" should not be "understood as management or control". Rather it was found to be used "in the sense of 'guidance'": Reasons, para 19.

Before referring to the Tribunal's conclusion I would note that Ms Watson began and then discontinued the program in 1986 only to recommence it in 1991. In para 20 of its Reasons the Tribunal concluded: "We find that in 1986 the Applicant began a gym program under the guidance of Drs Gow and Maguire, and that when she renewed her program in 1991 that renewal was also under the guidance of Dr Gow, for we do not see that the 1986 guidance had lost its relevance for Dr Gow. Given the nature of the treatment involved - that is, that it permits of and indeed requires a great deal of initiative by the patient if it is to be effective - we consider that there was a sufficiently close monitoring of the program by Drs Gow and Sanderson to be able to conclude that at all relevant times (and indeed up to the present) the gym program has been 'obtained' by the Applicant 'at the direction of a legally qualified medical practitioner'." (Emphasis added) Though the process of construction revealed above is not unambiguous, I have reached the conclusion that the Tribunal has misunderstood the language it was construing. The definition does not refer to therapeutic treatment 'obtained under the direction of' a doctor - ie it is not concerned with whether, when provided, the treatment process itself was subject to a doctor's direction. Rather the definition refers to therapeutic treatment "obtained at the direction of" a doctor, ie it is concerned with the process causing the treatment to be undertaken. In my view the Tribunal construed the definition as if it was the former - hence its apparent need to concern itself with such matters as the difference between guidance/monitoring of the treatment and supervision/control of it. The Tribunal has not properly addressed the question raised by the definition. It was only if the therapeutic treatment was "at the direction" of a doctor that it was, relevantly, medical treatment and hence its cost recoverable. The formula, "at the direction of", in this setting contains an imperative element - by which I mean a doctor prescribes a specified course to be taken. That course in turn must be therapeutic treatment. In Thiele's case, above, for example, the doctor prescribed (inter alia) the construction of a swimming pool of particular specifications for the purpose of swimming exercises of a person suffering a spinal injury. And the issue was not whether a direction had been given to construct a pool, but rather whether the provision of the pool was itself therapeutic treatment. Justice Hill held it was not and, importantly, that: "it does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner": Thiele v Commonwealth of Australia, at 382. For my own part I would be prepared to adopt the "advised, prescribed or ordered" terminology of Hill J as representing the proper meaning to be given to the "at the direction of" formula in the s4 definition - these terms having relatively well understood and not greatly dissimilar connotations in the context of doctor-patient communications as to the undertaking of treatment for an injury. In consequence I reject not only the Tribunal's apparent construction of the formula as meaning "guidance" - I also reject the applicant's submission that direction requires monitoring, control or management by a doctor. As the observation from Hill J I have quoted indicates, the direction must be to obtain "therapeutic treatment". These words raise the second matter of construction to which I need refer. I do not consider that the construction adopted by the Tribunal was erroneous. A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment. The applicant has submitted that a treatment can only be "therapeutic" if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the "healing or curative" connotation of the words "therapy" and "therapeutic": see eg Shorter OED, 3rd Ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s4 definition of "therapeutic treatment" which includes "treatment given for the purpose of alleviating an injury": (emphasis added). The Shorter OED, for example, defines "alleviation" as "the action of lightening ... pain". That usage is an appropriate one to apply here given the s4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation: see Thiele's case, 380-381. To the extent that the terms might be thought to be ones having a "trade" meaning, or else are illuminated in some way by practitioners of the "trade", I would note in passing that both the applicant's own doctor, Dr Alder and an occupational physician, Dr Scott, described Ms Watson's program as variously "therapeutic in nature" or as "therapeutic". The only additional comments I would make on this are, first, that therapeutic treatment in this setting is a purposive activity - ie its purpose or object must be the treatment of the particular injury in question. If such is not the actual, specified purpose of the activity then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment for present purposes. Secondly, because such treatment is purposive, an indicator that a doctor-prescribed activity is intended, relevantly, to be therapeutic will commonly be the adoption of some level of monitoring of it to gauge whether it is appropriately adapted to its purpose or is effective in some degree in realising that purpose. Obviously the nature and extent of such monitoring will be affected significantly by the nature of the treatment. Some forms of treatment may require close checking; others may well be self-monitored, once prescribed. I mention this simply to caution against the view that a doctor's positive and active control and management are indispensable elements in treatment. When one aggregates the terms of the para (b) definition, they are seen to have a dual requirement. There must be therapeutic treatment having as its purpose the treatment of the injury in question, and that treatment must be prescribed by a doctor.

Both of these requirements were very much in contention in the present matter. I will indicate in a moment why this was so. Because of the manner in which the Tribunal construed the definition, I am not, though, satisfied that it adequately and appropriately addressed the requirements of the definition. The Factual Setting This need only be mentioned briefly. During medical treatment in 1986 Ms Watson was referred by her own GP, Dr Gow to a specialist rheumatologist, Dr Maguire. In reports to Dr Gow in May and November 1986, Dr Maguire indicated variously that he "encouraged [Ms Watson] to return to her sporting activities in the hope that her general fitness will continue to improve"; and that he "encouraged her to return to her exercise programme, which would involve swimming and ante-natal exercise. In addition, a gentle upper body weight programme could be incorporated to maintain muscle tone". He discharged her from his care in January 1987. This encouragement provided, apparently, the genesis of the gym program finally engaged in by Ms Watson. Dr Gow apparently thought Dr Maguire's "recommendation" to be a "good idea"; he discussed it with Ms Watson; and she commenced attendance at a gymnasium in 1986. If the question before the Tribunal was whether at this point she had brought herself within the para (b) definition, the above primarily were the materials with which the Tribunal had to work. The conclusion it arrived at was that she began her program - no explicit consideration being given to what that was at the time - "under the guidance of Drs Gow and Maguire": Reasons, para 20; and hence satisfied the definition. I can here only conclude that the erroneous construction placed on the definition deflected the Tribunal from a proper consideration of whether the requirements of the definition had been satisfied. The matter does not end here. Ms Watson discontinued her program in 1986 and did not recommence it until 1991. The Tribunal, having made its finding as at 1986, found this to remain operative in 1991. It is clear that from 1991 onwards the actual program Ms Watson engaged in evolved: the evidence would seem to suggest a period beginning with self-help and ending (at least in 1993) in a specific program being designed for her by a gym instructor (or instructors). There was also some evidence of communication between Dr Gow and an instructor. I am uncertain when this occurred. Equally there appears to have been a significant level of discussion between Ms Watson and first Dr Gow and then, from early 1994, a Dr Sanderson concerning her gym program. Finally the doctors from mid-1993 were apparently prepared to certify to third parties that her program was "directed" or "required" treatment for her condition. While I am of the view that there well may have been evidence before the Tribunal from which it could properly conclude that at some time from 1991 onwards the requirements of the definition were satisfied, it has not addressed this matter because of the approach it took. The reviewable decision required the Tribunal to address this period in particular as the expenses claimed by Ms Watson, but rejected by Comcare, were for her gym fees (and in one instance family membership) for the years 1992, 1993 and (in part) 1994. It was open to the Tribunal to find that all, some or none of these were payable. Because of the global - and telescoped - approach adopted, no separate regard was had to the claims year by year. As with the 1986 decision, that approach led the Tribunal away from applying the definition to the circumstances confronting it. Somewhat inexplicably, notwithstanding the apparently particular claim made by Ms Watson, the Tribunal's decision was that she be paid "to the extent of the full amount of the fees paid by [her] from the date of her injury [ie 7 May 1985] for the purpose of her attendance at a gymnasium". In light of the view I have taken of the Tribunal's construction of the definition of "medical treatment" and of that construction's impact on the Tribunal's consideration of this matter, I must refer the matter back to it to be heard and decided again. I would draw to its attention the relationship of the actual decision appealed from and the actual compensation the respondent apparently sought.

I order that the decision of the Tribunal be set aside and that the case be remitted to the Tribunal to be heard and decided again. I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate Dated: 10 March 1997 Counsel for the applicant : I W Nash Solicitors for the applicant: Australian Government Solicitor Counsel for the respondent : H Selby Solicitors for the respondent : Pamela Coward & Associates Date of hearing : 5 March 1997 Date of judgment : 11 March 1997