5.5 Unreasonable Refusal to Medical Treatment, Examination or Rehabilitation Program

5.5 Unreasonable refusal to undertake medical treatment

Key points

• A veteran cannot unreasonably refuse medical treatment,
• The reasonableness of a refusal to undertake medical treatment can be assessed based on:
  • the risk of failure of the treatment,
  • the benefit of the treatment, compared with the current state,
  • other factors, like religious beliefs,
  • the veteran’s fears, if they result from a mental condition.
• Expert medical opinion concerning the safeness of medical treatment can be considered when determining medical treatment is reasonable, if the veteran is aware of the medical opinion at the time they refuse the medical treatment. 

What is reasonable medical treatment?

To receive compensation for an impairment under the MRCA, the impairment must be ‘permanent’ (i.e. likely to continue indefinitely). This requires that all reasonable rehabilitative treatment has been undertaken for the impairment. Rehabilitative treatment means any treatment, including surgery, designed to restore a person, as far as it can be, to the person's former health (see Smiths J in Dragojlovic v Director-General of Social Security (1984) 1 FCR 307-308).

There is a general rule of law that a veteran 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 requirement to undertake reasonable medical treatment is based on the general legal principle relating to the mitigation of damages.

Where a veteran does refuse reasonable medical treatment, the delegate will likely not be able to determine the impairment is permanent. 

For more information regarding when an impairment is considered permanent, please see Chapter 5.3.4 of the MRCA PI Manual.

How is reasonableness considered?

For medical treatment to be considered reasonable, it must be reasonable in all the circumstances of the case and must not expose the veteran to any real risk of further significant injury. When considering whether suggested medical treatment is or is not reasonable, delegates should judge each case on its individual merits, including the unique evidence relating to the specific claim. 

Expert medical opinion concerning the safeness of medical treatment can be considered when determining medical treatment is reasonable, if the veteran is aware of the medical opinion at the time they refuse the medical treatment. Conversely, if the veteran is not aware of the medical opinion favouring the treatment, a refusal of that treatment should not be considered unreasonable.

In some circumstances, the subjective perceptions of the veteran may also be taken into consideration.

              Fazlic v Milingimbi Community Inc

There is lack of consideration under the MRCA concerning a veteran’s duty to mitigate their damages. The judicial consideration of the MRCAs predecessor (the DRCA) can therefore be relied upon. 

In Fazlic v Milingimbi Community Inc, the courts held that it was necessary to take into account all the circumstances known to and affecting the veteran, in addition to the provided medical advice. Therefore, delegates should have regard to what a person knew about the proposed treatment and whether his or her concerns were reasonable, given that state of knowledge.

              Filla v Comcare

The Federal Court in Filla v Comcare [2001] FCA 964 established the following as reasonable reasons for a veteran to refuse to undertake reasonable medical treatment:

• where the 'baseless fears' of treatment are the result of a mental condition, or
• where current religious beliefs run counter to the medical procedure, or
• where the same or similar procedure has been undertaken on an earlier occasion, but without the expected favourable result​.

How is a veteran’s refusal to treatment dealt with under the MRCA?

In cases where delegates are satisfied the veteran is either:

• undergoing reasonable medical treatment, or
• unreasonably refusing to undergo medical treatment,

the assessment of permanent impairment compensation under the MRCA in respect of other accepted conditions can continue, as long as other accepted conditions are considered permanent.

Please see Chapter 5.3.4 of the MRCA PI Manual for examples on how these claims can be determined.

Example 1

A veteran suffers major depressive disorder and the medical evidence suggests improvement in impairment, based on participation in an occupational and psychosocial rehabilitation program, which is considered reasonable rehabilitative treatment. The veteran refuses to undertake the treatment and does not provide a reason. In this example, it would be open to the delegate to determine the veteran’s refusal is unreasonable and they are therefore unable to determine the impairment caused by major depressive disorder is permanent.

Example 2

A veteran suffers tinnitus and the medical evidence suggests improvement in impairment, based on participation in cognitive behavioural therapy and tinnitus retraining therapy. The treatment is considered reasonable rehabilitative treatment. The veteran refuses to undertake the treatment and provides the reason is because they do not have the time. In this example, it would be open to the delegate to determine the veteran’s refusal is unreasonable and they are therefore unable to determine the impairment caused by tinnitus is permanent.

Example 3

A veteran suffers osteoarthritis of the knee and has previously undergone a partial knee replacement. Due to the age of the veteran and his co-morbidities, both the veteran and the medical practitioner do not recommend further surgery, as the risk of further injury or death is too high. In this example, it would be open to the delegate to determine the veteran’s refusal to undertake medical treatment is reasonable. The delegate may determine the impairment is caused by the osteoarthritis of the knee is permanent.

Example 4

A veteran suffers major depressive disorder and has refused to take antidepressant or psychotropic medications because the medical advice confirms the treatment will have little or no benefit and the side-effects may be significant. In this example, it would be open to the delegate to determine the veteran’s refusal to receive medical treatment is reasonable. The delegate may determine the impairment is caused by the major depressive disorder is permanent.

Example 5

A veteran suffers lung cancer and has refused to undertake radiation therapy, chemotherapy and immunotherapy, administered as part of a clinical trial. There is limited research and understanding of the drugs in relation to the specific type of cancer and therefore possible outcomes are unknown. In this example, it would be open to the delegate to determine the veteran’s refusal to receive medical treatment is reasonable. The delegate may determine the impairment is caused by the lung cancer is permanent.