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5.5 Unreasonable Refusal: Attend medical examinations or Medical Treatment
Unreasonable refusal to undertake medical treatment
There is a general rule of law that a claimant must not unreasonably refuse treatment that will lessen the degree of impairment they suffer (see Fazlic v Milingimbi Community Inc (1982) 150 CLR 345). This is known as the “doctrine of mitigation of damage” and should be applied to claims for PI compensation. Any assessment of the reasonableness or otherwise of a claimant's refusal of treatment must depend upon the claimant's state of knowledge at the relevant time. The delegate should decide, in light of the medical advice given to the claimant and all the circumstances known to the person, whether the person's refusal is unreasonable. Delegates may take into account many factors, including the risk of failure and the possible extent of benefit of the treatment, particularly when compared to the present position.
For example, the claimant may have a mental condition such as an anxiety state which leads to the refusal to undergo treatment. This would not necessarily be unreasonable. Practising members of certain religions may have an objection to undergoing certain medical procedures. Again, this might not be unreasonable. Personal experience of earlier treatment may lead to a refusal to undergo that treatment again. This could be considered reasonable in the circumstances. Similarly, the Courts have held that refusal to take psychotropic medication would not be considered unreasonable refusal.
Unreasonable refusal to attend a medical examination
Policy and procedure on responding to an unreasonable refusal to attend a medical examination for the purposes of a claim (including PI), is outlined in Chapter 2 Part 2.1.14 Medical Examinations - Overview