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). 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.
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.
There is lack of consideration under the MRCA concerning a claimant’s duty to mitigate their damages and the application of the Fazlic rule, therefore the judicial consideration of the MRCA’s predecessor (the DRCA) can be relied upon. The operation of the Fazlic rule was distinguished by the Courts in a case that considered section 24(2) of the SRCA (now DRCA).
The approach to be adopted arises out of the Fazlic case, where the courts held that it was necessary to take into account all the circumstances known to and affecting a person in addition to the medical advice that has been provided. 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] FCA 964 to the legal principle and there courts have established the following exceptions 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'.
How is a client’s refusal to treatment dealt with under MRCA?
Ultimately, where it is unreasonable to require further medical treatment, the assessment of PI compensation should continue, and be based on the full degree of compensable impairment suffered by the client.
However if a client has refused treatment for their accepted compensable conditions that will reduce the degree of their impairment, and the refusal is unreasonable, the person’s claim for PI compensation may be unsuccessful, or considered under the interim provisions until they undertake the treatment.
Examples
Scenarios where a client has unreasonably refused 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.
Scenarios where a client has reasonably refused treatment
If a client was unwilling to undertake major surgery based on the inherent risks associated with the surgery which has a low success rate, it would not be reasonable to deny entitlement to compensation on this basis.
Another example of where it would be reasonable to refuse treatment is if the person refused to take anti-depressant (or psychotropic) medications because of the medical advice they had received regarding the treatment's low chance of success and the significant side effects of the medication itself.
Where it is recommended by a specialist that a client undertakes a round of therapeutic course of a cancer drugs that are being administered as part of a clinical trial. The client’s refusal for the treatment based on the limited research and understanding of the drugs and linked outcomes would be considered reasonable.
Where a claimant suffers from a mental condition such as an anxiety 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.
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
5.5.3 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.