The provision of adequate rehabilitation services is an integral element to the CTP process.
It is important not only for an injured individual’s recovery and wellbeing, but also for insurers who have an interest in mitigating their long-term liability. Evidently, much can be gained from addressing one’s genuine needs in an immediate, stable and effective manner.
In recent years however, CTP insurers have been required to move beyond the mere provision of medical services and have been encouraged to look at the injured individual’s needs on a holistic basis. This has meant that parties on opposite sides of the fence have had to surrender their swords and entertain a level of compromise.
The result?
A series of cases in which insurers have conceded that ‘reasonable and appropriate’ rehabilitation comes in many shapes and sizes: the provision of alternative therapies, unconventional housing, specified motor vehicles and in some circumstances, the facilitation of sex workers.
A decision the encapsulates the potential breadth of an individual’s path to recovery is that of Rogers v Suncorp Metway Insurance Limited.1
The Case
This case involved a Plaintiff’s application to the Supreme Court for a determination on what rehabilitation services provided by the Insurer could be deemed ‘reasonable and appropriate’ in the circumstances. As those legal buffs amongst us would be aware, such an application is made pursuant to Section 51(5)(b) of the Motor Accident Insurance Act 1991 (Qld).
The application stemmed from an incredibly misfortunate motor vehicle accident; an accident in which a young man, aged 21 at the time, suffered an “extremely severe” traumatic brain injury. As a consequence, the Plaintiff was left with profound mobility, cognition, visual and communication impairments. In addition to this, he developed a severe behavioural impairment consistent with a frontal lobe disorder.
There was no dispute between the parties that the Plaintiff required rehabilitation services. What was in issue however, was the question as to the reasonableness of the arrangements that were in place at the time of the application: the Plaintiff plead a deficiency in the existing arrangements; the Insurer plead that they were sufficient.
The Events that Informed the Application
To appreciate the nature of the Plaintiff’s requests, one must first appreciate the series of events that preceded the application.
Following a 19-month inpatient stay between two hospitals, the Plaintiff was discharged and accommodated in a shared accommodation facility at the expense of the Insurer. On 3 June 2013, the Plaintiff was removed from the shared facility due to an incident stemming from his behavioural issues. The same service provider subsequently placed him within another of their facilities, where he could be accommodated on a one-on-one basis.
Approximately one week later, by way of Further Amended Originating Application, the Plaintiff’s solicitors sought the following court orders:
- construction of a purpose-built residence for the applicant with associated attendant care and services;
- provision of care and services in an appropriate facility pending construction of that residence (with funding for weekend home visits);
- provision of a suitable motor vehicle; and
- provision and/or facilitation of access to sex workers.
At the outset of the hearing, the Insurer indicated a willingness to continue to fund the Plaintiff’s care in an appropriate facility provided by the service provider until final determination of his claim. They were also agreeable to the fourth of the Plaintiff’s requests regarding access to sex workers, with conditions.
However, the Insurer opposed the request for the construction of a purpose-built residence for the Plaintiff, as well as the provision of a motor vehicle. The Insurer did so on the basis these requests were not reasonable or appropriate in light of the medical evidence at hand.
Submissions on the Medical Evidence
It was commonly accepted amongst the medical specialists that the Plaintiff engaged in temperamental and inappropriate behaviours leading to strained relationships with hospital staff, carers and other residents within the shared facility. He exhibited aggression towards others, occasionally characterised by sexualised conduct. However, the medical evidence also revealed a common expectation that the Plaintiff would, with ongoing rehabilitation, experience further recovery in his cognitive, behavioural and physical impairments.
As to the most appropriate accommodation arrangements for the Plaintiff, the medical opinions varied.
The Plaintiff’s solicitors adduced the following evidence in support of the request for a purpose-built home:-
- Dr Buckley held the opinion that the Plaintiff’s behavioural impairments meant that placing him in an environment where multiple brain injured people were living together, each with their own unpredictable behavioural impairments, would be the “most unpredictable environment of all”. Such a facility would almost certainly be chaotic and highly damaging structural stability that the Plaintiff required in order to minimise disturbance.
- Dr Markou put forward evidence that the Plaintiff found placement in shared facilities demoralising and the ability of the Plaintiff to reside away from institutional care was not only desirable, but one of the best possibilities for the Plaintiff’s independence.
- Ms Scudamore, the Plaintiff’s Rehabilitation Coordinator and Dr Yeo, the Plaintiff’s Rehabilitation Physician, both thought that the most appropriate long term solution for the Plaintiff would be an arrangement whereby he could reside in his own home and live with his extended family.
The Plaintiff’s solicitors argued that their client’s behavioural impediments placed others in shared accommodation at a risk of physical harm and had indeed already led to the removal of the Plaintiff from the facility. They extended this argument further, submitting that placing the Plaintiff in this environment would also place him at risk of harm, in the event that a fellow resident retaliated against his behaviour. The court called upon the Plaintiff’s Litigation Guardian, who provided anecdotal evidence of having to ‘come to the rescue’ per se on occasions where the Plaintiff had become significantly agitated following interaction with other residents.
In stark contrast to the aforementioned medical opinions were those held by Dr Hazelton and Dr Eckerman:-
- Dr Hazelton was of the belief that placement of the Plaintiff in a shared facility had significant advantages. These facilities have trained staff in sufficient numbers who are able to cope with behavioural difficulties, thereby limiting the exposure of carers and fellow residents to aggressive and inappropriate behaviour. In addition, these services provide necessary safety and psychological support which would facilitate the maintenance of behaviour, function and consistency in the Plaintiff’s environment.
- Dr Hazelton also observed that the staff at the shared facility in which the Plaintiff had been residing had implemented a suitable and consistent behaviour management program tailored to his needs. However, it would only be with long-term maintenance of the program that the Plaintiff’s functioning and social participation would likely improve.
- As to the proposal that the Plaintiff be moved into a private residence, Dr Hazelton opined that the resulting loss of structure would likely be detrimental to the Plaintiff long-term. In fact, even moving to alternative accommodation on weekends was seen to be a concern for Dr Hazelton. This was based upon apprehension in relation to the lack of stable support workers that would be available to the Plaintiff, as well as a risk of relapse in his behavioural management and the potential for exposure to illicit substances.
- Finally, Dr Eckerman was of the opinion that a shared facility would provide the Plaintiff with the important opportunity for socialisation, notwithstanding that his injuries meant it may be difficult for him to seize this opportunity. The potential was there and to Dr Eckerman, that was an important consideration.
Based upon those opinions, the Insurer submitted that the Plaintiff’s ongoing behavioural issues were being adequately met by his placement in a one-on-one facility. Further, any future placement in a shared facility was likely to be conducive to successful long-term rehabilitation.
The Decision
Given the medical evidence at hand, Boddice J refused the Plaintiff’s application for a purpose-built residence. In doing so, he cited a concern that the Plaintiff may be exploited or exposed to illicit substances if he allowed others to reside with him privately. There was also a risk that the available staff in a purpose-built residence would be less than in a shared facility and a concern that being housed outside of a professional facility may not be favourable to his long-term rehabilitation.
Ultimately however, His Honour’s reasoning was founded upon the premise that the one-on-one care services already being funded by the Insurer did in fact constitute reasonable and appropriate rehabilitation. He also noted the possibility that the Plaintiff may successfully return to a shared facility in the future. Overall, the existing arrangements were proving to be effective for the Plaintiff’s wellbeing.
It followed that Boddice J did not find a basis to order the provision of a motor vehicle for the Plaintiff’s use. The Insurer had been providing sufficient taxi vouchers and in all of the circumstances, this was reasonable and
appropriate. The Insurer had also undertaken to fund the one-on-one accommodation (at a significant weekly cost) and was willing to provide the Plaintiff with services from a sex-worker. As such, His Honour did not see a need to intervene.
Implications
Boddice J outlined some helpful principles in relation to the provision of ‘reasonable and appropriate’ rehabilitation under Section 51(3) of the Motor Accident Insurance Act 1991 (Qld).
As to whether the expected outcome of the case is materially relevant to the level of rehabilitation provided, His Honour made reference to the decision of Applegarth J in Aldridge v Alliance Australian Insurance Limited2 and answered in the affirmative. However, parties must still bear in mind that they are technically distinct concepts: one a consideration of measures taken to optimise the Plaintiff’s quality of life; and the other an assessment of monetary damages in a legal proceeding.
The merits of the overall case are important to the provision of rehabilitation services insofar as informing the parties of the genuine needs of the individual. Often, clear medical evidence is required assist the parties in coming to a compromise.
The case also highlights that determining what is in an individual’s best interests can be a remarkably difficult balancing exercise, particularly when short-term desires conflict with long-term benefits. An individual’s circumstances are almost guaranteed to change over time and as such, it may be of benefit for insurers to anticipate likely changes and develop an overall rehabilitation management strategy.
Importantly, Boddice J noted that the central aim of rehabilitation is to restore and optimise, as far as is reasonably possible, the Plaintiff’s physical or mental functions and quality of life. The obligation for insurers to provide rehabilitation should be construed beneficially in the Plaintiff’s favour.
Insurers should take a considered approach to restoring a person to their pre-accident condition and rehabilitation must be tailored to the individual’s needs. Indeed, whilst some might scoff at the very idea of paying for a sex worker, the Insurer in Rogers was proactive in recognising that it was an important consideration for the management of the Plaintiff’s condition.
Ultimately, an individual’s path to recovery may bring as many surprises as the Yellow Brick Road itself. What is reasonable and appropriate for one individual may be completely unreasonable and inappropriate for another. Insurers and solicitors must take the time to listen to an injured person’s requests, obtain medical evidence and make a call on whether the proposed rehabilitation is genuinely in their best interests. From there, the plan should be implemented in a timely and effective manner.
Let the healing process begin.