Editors --- "Disability support pension: refusal to undergo recommended treatment - AAT erred in applying an objective test" [2007] SocSecRpr 54; (2007) 9(4) Social Security Reporter, Article 12

• JANSEN v SECRETARY TO THE DEWR
• Background
• The issues
• Discussion
• Formal decision
• Contributor’s Note

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Disability support pension: refusal to undergo recommended treatment - AAT erred in applying an objective test

JANSEN v SECRETARY TO THE DEWR

(, for example, as Koutaskis v Director-General of Social Security (1985)

Decided: 7th September 2007 by Heerey J.

Background

Jansen, who was born in 1966, had a history of anxiety, depressive disorder, panic attacks and excessive alcohol consumption since he was fifteen. He sought treatment from a psychiatrist some years ago, but discontinued the treatment after a few sessions as he did not find it helpful. He had also tried various medications, including anti-depressants, but also found these of little value. At the time the matter was heard by the AAT, Jansen was self-medicating with alcohol and occasionally using an anti-depressant medication.

Several medical practitioners had suggested various treatment options for Jansen’s condition. One such option required him to undergo detoxification for his alcohol abuse. Jansen told the AAT that he was not prepared to attempt detoxification at present as he was not ready to give up drinking. He also told the AAT that he doubted that liver tests would be useful and that he was reluctant to take prescription medication for his depression/anxiety without assurance from his doctor that there would be no serious side effects. Jansen further told the AAT that he would consider counselling through his church, but did not see the desirability of undertaking any other forms of counselling.

The AAT affirmed Centrelink’s decision that Jansen was not eligible for disability support pension as he had declined reasonable treatment options which were likely to lead to significant functional improvements in his condition within the next two years.

Jansen appealed the AAT’s decision to the Federal Court of Australia. The appeal was made out of time, however the Court granted an extension of time to him and heard the appeal instanter.

The issues

The issue for determination by the Court was whether the AAT had erred in law by applying an incorrect test to determine whether the respondent had refused to undergo reasonable treatment for his condition.

Discussion

The Introduction to the Impairment Tables in Schedule 1B of the Act provides that an impairment rating can only be assigned to a condition if it is fully diagnosed, treated and stabilised. Paragraph 6 of the Introduction relevantly provides that, when assessing whether a condition is fully diagnosed, treated and stabilised, it is relevant to consider whether there is any reasonable medical treatment that is likely to lead to significant functional improvement in the condition within the next 2 years.

The Court considered the social policy underlying the 1947 Act and some case law arising under that Act. The Court found that a failure to undertake medical or other treatment under the 1947 Act did not disentitle the person from receiving a pension (see, for example, as Koutaskis v Director-General of Social Security (1985) 10 FCR 42). The Court considered that it was reasonable to assume that if Parliament had intended any change to the social policy underlying the 1947 Act, any such change would have been clear and explicit.

The Court considered that the test of whether a person has a medical or other compelling reason for not undertaking further treatment was a subjective test. The Court held that the emphasis is on subjective good faith, or lack thereof, in the person’s decision to refuse the treatment, however irrational the decision may appear.

The Court held that the AAT had misunderstood the question posed by the statute and that the decision should be set aside on account of the error of law.

Formal decision

The Court set aside the AAT’s decision and remitted the matter to the AAT for reconsideration (by a differently constituted AAT)according to law.

[S.O.]

Contributor’s Note

The Secretary, DEWR has lodged an appeal against this decision to the Full Federal Court. The appeal is not yet listed for hearing.