4.5.3 Requirement to Undertake Reasonable Medical Treatment

If reasonable medical treatment is likely to alter the degree of impairment, the impairment should not be treated as stable at this time, with the effect that a final assessment cannot be made under section 24.

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).  Essentially in order to receive compensation for the permanent impairment, a person must have taken reasonable steps to undertake all reasonable treatment for their accepted compensable conditions if it would reduce their overall impairment – this is based on the general legal principle relating to mitigation of damages.

Therefore, where it is established as unreasonable to require further medical treatment, the assessment under section 24 should be based on the full degree of compensable impairment suffered by the client.

How is reasonableness considered?

For medical treatment to be considered 'reasonable' in this context, it must be reasonable in all the circumstances of the case and must not expose the member to any real risk of further significant injury. Delegates should judge each case on its individual merits, and the subjective perceptions of the client should be taken into consideration when considering whether suggested medical treatment is or is not reasonable.

In considering whether reasonableness should be judged by objective standards or by the subjective perceptions of the client, it is appropriate to adopt the approach taken by the High Court in Fazlic v Milingimbi Community Inc (1982). In that case, the Court had regard to what the employee knew about the proposed treatment and whether his or her concerns were reasonable, given that state of knowledge: They also stated it was necessary to take into account “all the circumstances known to...and affecting [the worker]” in addition to the medical advice they had received.  

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.

The Federal Court added in Filla v Comcare (2001) that “even if the worker has received medical advice to submit to an operation and even if that advice means that the worker knows of cogent factors favouring his submitting to that operation, still, other circumstances known to and affecting the worker may mean that the worker's refusal to submit to the operation is neither the result of baseless fear nor properly to be characterised as unreasonable”. They went on to include a worker's religious beliefs as something that could “repel any suggestion of unreasonableness in refusing to submit to that surgery”.

Various decisions have been handed down by the courts that have added to this legal principle, and subsequently the following exceptions have been established, where a person’s informed refusal to undertake safe treatment were acceptable:

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

Ultimately, the delegate must determine the reasonableness of the client's decision given the information available to that client at the time. 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.

An expert medical consensus supporting the wisdom and relatively low risk of the treatment is irrelevant if that opinion is presented only after the client's decision not to proceed. Therefore, where the client has not been advised of all 'cogent factors' favouring a particular course of treatment, a refusal of that treatment should not be considered 'unreasonable'.

Examples

Scenarios where a client would be reasonably refusing treatment

If a client was unwilling to undertake major surgery based on the inherent risks associate with the surgery, it would not be reasonable to defer making a determination under section 24 on this basis alone.

Another example can be found in the decision of the Tribunal in Re Sims and Comcare [1998] AATA 416  where it was considered reasonable for the employee to refuse to take anti-depressant medication because of the advice the employee had received regarding the treatment's low chance of success and the significant side effects of the medication itself.

Scenarios where a client would be unreasonably refusing treatment

A client suffers from major depressive disorder as a result of bullying in the workplace, and the medical evidence suggests a favourable prognosis based on participation in an occupational and psychosocial rehabilitation program. This type of treatment would be considered reasonable rehabilitative treatment, and the person was refusing to undertake the treatment with no reason, it would be considered unreasonable refusal and should be considered by the delegate whether the likelihood of that refusal will continue for a substantial, though undetermined period of time before considering if the refusal is on reasonable grounds and favour permanence of an impairment.

A veteran with multiple orthopaedic conditions, particularly severe osteoarthritis of the knees and lumbar spondylosis submits their claim for PI. During the medical investigation of the conditions, the orthopaedic specialist who has been treating the client suggests that the overall level of impairment is quite high, however an arthroscopy of the knees will alter the degree of impairment significantly. The treating doctor has provided this treatment in addition to ongoing physio to the client and explained the low risks and benefit that the treatment would provide. The client has refused because they do not want to take time off work for the surgery and the rehabilitation time. The client has been made fully aware of the cogent factors and refused on grounds that are unreasonable given the low risk restorative treatment that has been recommended.