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5.5 Unreasonable Refusal to Medical Treatment, Examination or Rehabilitation Program
5.5.1 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.
5.5.2 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
5.5.2 Unreasonable refusal to undertake a rehabilitation program
Under section 52 of MRCA, a person's right to compensation may also be suspended where they fail or refuse to undertake a rehabilitation program, without reasonable excuse.
Non-compliance under MRCA can lead to suspension of compensation entitlements (with the exception of compensation for medical treatment). Compensation under the MRCA may include Permanent Impairment benefits, incapacity payment attendant care services and household care services.
The criteria for the payment of PI is not reliant on participation in a rehabilitation program, unlike incapacity payments which can be. Therefore it should be considered on a case-by-case basis and depending on the facts of the case, including the decision letter issued to the client advising them of the effects on their ongoing MRCA entitlements before determining if the PI compensation benefits should be suspended. Delegates should seek advice from the Benefits and Payments Policy team if a case arises and there are issues relating to the ongoing entitlement, or current assessment of a person’s entitlement to the PI compensation and a section 52 suspension has been determined.
Any decisions to suspend under Section 52 are determinations under the Rehabilitation provisions and will be determined by a Rehabilitation delegate. It is important to note, MRCA Section 345 states a determination under Section 50 or 52 is not an 'original determination' and therefore does not provide appeal rights.