BN v Department of Justice and Attorney General (Victims Assist Queensland) [2012] QCAT 283

CITATION: BN v Department of Justice and Attorney General (Victims Assist Queensland) [2012] QCAT 283 PARTIES: BN (Applicant) v Department of Justice and Attorney General (Victims Assist Queensland) (Respondent) APPLICATION NUMBER: GAR298-11 MATTER TYPE: General administrative review matters HEARING DATE: 20 June 2012 DECISION OF: Catherine Benson, Member DELIVERED ON: 1 July 2012 DELIVERED AT: Gladstone ORDERS MADE: [1] The Respondent’s decision to refuse financial assistance to the Applicant to travel to Canada with an escort to attend a rehabilitation course and receive treatment for diagnosed post-traumatic stress disorder is set aside. [2] The Respondent is to pay to the Applicant, BN, the sum of $20,480.00, being: a) $4,000.00 for the cost of treatment at Cree Nations Treatment Haven; and b) $16,480.00 being the cost of travel to and from that treatment centre for BN and escort, Mr Gordon Charlie, such travel to include a minimum of 2 overnight stopovers in each direction of the journey, as per the quotation from Flight Centre, marked Option A. [3] The Respondent is pay such sum as follows: a) $4,000 to Cree Nations Treatment Haven, upon BN providing to the -- 1 of 12 -- 2 Respondent, written confirmation from that organisation that Ms BN is enrolled to attend the program described as “35 day in-patient program … of aboriginal traditional intensive multi-disciplinary treatment for adult individuals … by offering treatment for trauma and major loss …” commencing 25 July 2012. b) $16,480 to Flight Centre for cost of travel to and from the treatment centre on receipt from the Applicant of written confirmation that BN has been accepted into the treatment program commencing 25 July 2012 and on receipt from the Applicant of written confirmation form Flight Centre that BN and Mr Charlie are booked to travel in time to attend that treatment program. [4] In the event BN is unable to attend the treatment program commencing 25 July 2012, or is unable to arrange travel plans to enable BN to attend that program, the Respondent is to pay the said sum upon receipt from BN of: a) confirmation in writing from Cree Nations Treatment Haven of the program into which BN has been accepted, to a maximum sum of $4,000; b) confirmation in writing from BN of a complete travel itinerary to attend the above program from Flight Centre, to a maximum sum of $16,480; provided such written confirmations are received from BN within 6 months of this Order and provided the treatment program is scheduled to take place within 12 months of the date of this Order. CATCHWORDS: VICTIM OF CRIME – whether treatment sought to be undertaken was based on exceptional circumstances APPEARANCES and REPRESENTATION (if any): APPLICANT: In person -- 2 of 12 -- 3 RESPONDENT: Mr Brandon James appearing for the Respondent, instructed by Ms Tanya Brooks REASONS FOR DECISION Proceedings [1] BN, as a victim of crime, seeks financial assistance under the Victims of Crime Assistance Act 2009 (the Act), from the Respondent. [2] The reason for the financial assistance is to allow BN to travel to Canada, with an escort, to receive treatment from an Indigenous Spiritual Healing Centre for diagnosed post-traumatic stress disorder. [3] The Applicant lodged an Application with the Respondent on 10 May 2010. [4] The Respondent denied the Applicant’s request on 31 May 2010, while acknowledging at that time, that the act of violence to which the Applicant had been subjected had had an unusual, special, or out of the ordinary, effect on BN, which decision was confirmed in internal review on 16 August 2011. [5] On 12 September 2011 the Applicant filed an Application with the Queensland Civil and Administrative Tribunal seeking a review of that decision. [6] A compulsory conference on 29 November 2011 failed to resolve the matter. The Respondent was directed to reconsider its decision to refuse the Applicant’s request for financial assistance. [7] On 26 August 2011 the Respondent filed and served an amended decision wherein: i. it reconfirmed its decision to refuse the Applicant’s request for financial assistance; and, ii. rescinded its earlier finding that the act of violence to which the Applicant had been subjected had had an unusual, special, or out of the ordinary, effect on BN; and, iii. made a new finding that the treatment sought by the Applicant in the Application was properly categorised as either medical or counselling treatment which “does not fall within the other expenses exceptional circumstances component”. [8] The Respondent submits it is the decision of 26 August 2011 which is under review. [9] During final submissions BN made an oral application that if the Tribunal found against BN in relation to this application, the Tribunal make an Order that the Respondent pay the costs of relocating BN back to Canada. -- 3 of 12 -- 4 Undisputed Facts [10] That, BN: i. was assaulted by [ ….] , on or about 27 June 2007; ii. suffered physical injuries and emotional trauma as a result of that assault; iii. received therapy and counselling as a result of BN’s emotional trauma, initially from a psychologist, Ms Denise Jeffrey, and a psychiatrist at Qld Mental Health, and then from August 2010, with Ms Jo Chibnall, psychologist; iv. was diagnosed with post-traumatic stress disorder after the assault; v. identifies as an Indigenous Canadian; vi. has not received successful treatment for BN’s post-traumatic stress disorder through clinical treatments provided to BN; vii. has suffered psychological trauma in the past by reason of: 1. a motor vehicle accident; and 2. a sexual assault in or about 2005. Issues in Dispute [11] Whether BN’s post-traumatic stress disorder results directly from the assault or whether it arises by exacerbating previous mental health traumas. [12] Whether the treatment sought by BN is defined as, either medical treatment, or, counselling, and as such, is not exceptional under the Act. [13] If treatment is defined as either medical treatment or counselling, whether the travel costs associated with such treatment are defined as “incidental” under the Act. [14] If treatment is defined as either medical treatment or counselling, whether the costs of such treatment, including the travel costs to attend for such treatment are reasonable in the circumstances. Evidence for the Applicant [15] Each of the Applicant and the Applicant’s witnesses gave evidence by way of a written statement and orally at the hearing. They were each cross- examined by the Respondent and answered questions from the Tribunal. [16] Mr Gordon Peter Charlie gave evidence that: -- 4 of 12 -- 5 i. he is an Aboriginal Elder from Hopevale; ii. he has known BN for more than 20 years; iii. the Aboriginal communities in Australia have lost their culture; iv. BN needs to get back to BN’s culture and “sing” as BN cannot get help here; v. the healing programs available for Australian Aboriginal people are not effective as the song line and culture is no longer practiced here. [17] Ms Jo Chibnall, psychologist, gave evidence that: i. she began treating BN in August 2010 after BN receiving treatment from a psychiatrist at Community Mental Health and another psychologist in Cairns; ii. BN’s post-traumatic stress disorder is directly related to the assault which the Applicant suffered in 2007; iii. BN was treated successfully for previous mental health issues to the point where BN was functioning quite well; iv. BN attends fortnightly sessions, as the number of sessions is limited to the funding provided by Medicare. Each year additional funding is sought under “exceptional circumstances”. After the next two sessions it is expected only another 6 will be granted for the balance of the calendar year, after which it will be reduced to 10 sessions per year, which is insufficient; v. the work done in the past 18 months with BN has been trying to support BN with basic stress management. Her trauma work has not worked – BN is “one of my abject failures”; vi. the trauma work done with BN’s previous psychiatrist and psychologist over 1-½ years did not work; vii. she has looked at alternative treatments but she specialises in trauma treatment including with the Vietnam Veterans counselling service. It is bad practice to keep doing the same thing that doesn’t work which can be damaging to a person’s health. Therefore she has stopped trauma counselling with BN and is working only on stress; viii. she does not work with a holistic approach; she has a clinical approach only. She is not an expert on holistic programs or on the Canadian programs; ix. she has consulted with a colleague, Ms Heather Menzies, about Indigenous programmes available in Australia and that person -- 5 of 12 -- 6 confirmed the view of BN that the programs are influenced by conflicting political interests and are not effective; x. if BN travels, BN would require a support person in the form of an escort as BN would not cope with the stress alone, which would be “an absolute disaster”. BN would become extremely agitated, and disorganised, and as a result, would become aggressive and upset people; xi. Mr Charlie is a suitable support person to escort BN and he is the person who understands BN. She has seen him as he accompanies BN to sessions and they work well together – they each calm each other down. [18] BN gave evidence that: i. BN was no longer seeking treatment from Eeya Keen Healing Centre Inc as, by letter dated May 1 2012, sent via email to the Respondent, that organisation withdrew its offer for treatment services. BN was now seeking treatment from Cree Nations Treatment Haven (Cree Nations); ii. BN received treatment from Cree Nations in 2005 following emotional trauma from a sexual assault. Such treatment included the use of a sweat lodge, and a linking back to spiritual ancestors, over a period of two weeks; iii. Cree Nations provides a similar treatment regime to that provided by Eeya Keen, which is a post-traumatic stress response model and is similarly accredited by Canadian Mental Health Service to provide such services; iv. Cree Nations runs programs once or twice a year. The second one for the year will commence on 25 July 2012 and the next available treatment program will not occur until early in 2013; v. In the past BN: 1. suffered a car accident in which BN lost two fingers. As a result of that accident BN has been unable to drive a car since and suffered from chronic fatigue. BN received treatment for emotional trauma but notwithstanding, BN was able to attend university and to work; 2. was the victim of a sexual assault as a result of which BN suffered emotional trauma and required counselling. BN attended Cree Nations as part of trauma treatment. Following treatment BN was able to continue with university studies, attain a degree, and pursue a career; vi. during the assault incident BN feared for BN’s life. BN often thinks back to that and reminds that BN is lucky to be alive; -- 6 of 12 -- 7 vii. the symptoms BN suffered after each of the above incidents are not like what BN suffers now. BN is no longer able to work or study and suffers ongoing anxiety; viii. BN considers being in Australia, a reminder to BN of the incident; ix. BN described the assault incident, and how BN felt during it despite the Respondent accepting the facts and the Tribunal advising BN was not required to give evidence about them. BN was clearly distressed while giving this evidence; x. in relation to the type of treatment sought, being spiritual healing understood only by Indigenous Canadians: 1. the Australian Aboriginal culture is disjointed and therefore the healing programs available to indigenous peoples in Australia are ineffective as “the people are seeking healing and people who are ill cannot heal other people”. In contrast, “in Canada the song line is connected throughout all the tribes” and they are able to provide healing models for indigenous people that are not available in Australia; 2. the Indigenous healing programs in Australia are influenced by political interests and run by “elitist groups”, one of which, BN’s assailant was connected to; 3. BN was successfully treated for trauma in the past through such a program and believes BN will be so again. [19] BN tendered: i. letter from Cree Nations Treatment Haven addressed to Victims Assist QLD dated June 15, 2012. The Respondent had not seen, nor was it previously aware of, this document; ii. letter from Flight Centre addressed to “Dear BN” setting out two options for travel to Canada marked Option A and Option B. The Respondent had not seen, nor was it previously aware of this document; iii. quote from Travel Experience.Com setting out two options for travel to Canada headed Option one and Option two. The Respondent had not seen, nor was it previously aware of this document. [20] The Respondent tendered a bundle of Documents marked from Number 1 to Number 109. i. Correspondence from Eeya Keen Centre Inc, forming part of the Respondent’s Tender Bundle stated that: -- 7 of 12 -- 8 1. by letter dated 7 Nov 2011 they were able to offer a program of treatment from 6-15 July 2012; 2. by letter dated 9 Nov 2011, that they offer treatment for post- traumatic stress disorder, victims of crime, and other traumas as well as for people with addictions; 3. they are Internationally accredited by CARF International Health Canada and are a recognised Mental Health Service Provider; 4. by letter dated January 5, 2012 a brochure was attached headed “Post Traumatic Stress Disorder (PTSD) What is it?” and setting out the specific treatment offered to treat such conditions. Submissions [21] The Respondent submitted: i. The decision under review is the amended decision of 18 April 2012. ii. The cost of the proposed treatment and its associated travel is not reasonable and by way of example, the average amount awarded to victims for treatment and travel to date has been $1,313. No supporting evidence was provided for this submission. iii. The type of treatment, service provider and place of proposed treatment does not of itself, rule out the ability to order it. The issue is whether the cost is reasonable. iv. The treatment sought is not commensurable with the nature of the act of violence committed in that the police report notes the crime as “assault occasioning bodily harm” which is the lower end of such a crime. v. It is not possible to ascertain how much of the Applicant’s trauma is pre-existing and how much relates to this incident, and the Tribunal is in no position to make an assessment at this time. vi. While accepting that Ms Chibnall’s treatment has been unsuccessful, there is insufficient evidence to support an argument that treatment of the kind sought by the Applicant is not available in Australia. There is no evidence to suggest the Canadian model of indigenous healing outstrips the Australian models. vii. The Applicant has made no attempt at applying traditional healing methods here. -- 8 of 12 -- 9 viii. The email from Eeya Keen Centre dated 1 May 2012 withdrawing their offer to provide assistance states that the Applicant should be treated closer to home which suggests they have reviewed their view that they could provide appropriate assistance. ix. Everything published on the internet by Cree Nations suggests they treat people with addictions, which is not suitable for what the Applicant requires. x. The letter from Cree Nations tendered by the Applicant does not give sufficient information to satisfy that it can provide the treatment required. xi. The opinion voiced by Cree Nations is in conflict with that expressed by Eeya Keen in its last email. xii. Incidental travel as it relates to exceptional circumstance is defined in Schedule 3 of the Act as that which is necessary to obtain medical or counselling services. xiii. The Act provides an extensive but controlled scheme to help victims in recovery by giving them financial assistance. xiv. Section 39(g) of the Act allows for other expenses to be paid in exceptional circumstances. The cost of these expenses sought is not an appropriate measure of what should be expected. [22] The Applicant submitted in response: i. The costs of treatment and associated travel are reasonable “in the circumstances”. ii. The Act allows a payment of up to $75,000 under s 38. iii. “Reasonable” means what is reasonable in the circumstances. iv. Pursuant to s 109 of the Australian Constitution the Applicant’s religion should be accommodated and BN’s religion cannot be accommodated where BN is at present. v. The post-traumatic stress disorder the Applicant is suffering was caused directly by the assault and is very much affecting the Applicant’s current situation and life issues. vi. BN has previously been treated at Cree Nations successfully and believes they can assist the Applicant again, with knowledge of previous issues. vii. Eeya Keen changed its mind about assisting as it was scared away by the contact from the Respondent and the requirement for it to become involved in these proceedings. It did not fully assess -- 9 of 12 -- 10 BN and is not in a position to give any opinion about the effect if the Applicant’s past traumas on BN now. viii. Exceptional circumstances arise from the nature of the incident being: 1. a violent assault, where the Applicant was forced to flee for the Applicant’s life; 2. the assault being carried out by an Indigenous Australian who has connections to those who hold the political power in the community, which leaves the Applicant afraid to live in the area. ix. If BN sought treatment in Australia BN would be further traumatised because of the identity of the Applicant’s assailant, and would likely commit suicide. x. Canada provides a different type of healing method for indigenous peoples. xi. BN meets the description as discussed under the Act of being in a “remote area” in that BN does not feel secure in Australia and needs to return to BN’s homeland. xii. If BN stays in Australia BN’s religion will not be catered for, BN will be disjointed and will not get the help BN needs. xiii. BN likens BN’s situation to that of a woman sho is violently assaulted in her own home, thus fearing staying in her home and needing to be, and being entitled to be, relocated as a result. Tribunal’s Findings [23] BN identifies as Indigenous Canadian and believes very strongly that only a holistic spiritual treatment program such as is offered by Eeya Keen or Cree Nations Treatment Haven can assist the Applicant to heal. [24] Because of the Applicant’s entrenched beliefs, BN is unlikely to benefit other than from receipt of such treatment. [25] While no findings are made regarding the specific allegations of political interference into such programs, the only evidence available regarding Indigenous healing programs in Australia was provided by the Applicant and the Applicant’s witnesses, who confirmed the Applicant’s view, that they were ineffective and possibly, disadvantageous to the Applicant. [26] The Respondent made submissions about the possibility of availability of other such programs in Australia but produced no evidence to support it. As such, no findings can be made that suitable indigenous healing programs such as would benefit the Applicant to seek healing for post- traumatic stress disorder, could be found in Australia or that, if available, -- 10 of 12 -- 11 would be cheaper or more accessible than the Canadian program chosen by BN. [27] No findings can be made as to the reason for Eeya Keen to withdraw its offer of assistance but neither Eeya Keen nor Cree Nations Treatment Haven have fully assessed BN and as such, neither is in a position to offer an opinion as to diagnosis or the appropriate treatment for the Applicant. [28] The only medical evidence given was by Ms Jo Chibnall, psychologist, who has treated BN since August 2010. The Tribunal has no reason not to accept her diagnosis and her evidence that: i. BN’s post-traumatic stress disorder was caused directly as a result of the violent incident; and ii. clinical treatment methods have failed to address this disorder; and iii. “there is a greater likelihood of success through a traditional healing model …”1 [29] Eeya Keen, provides an “… integrated physical, emotional, mental and spiritual treatment, healing and development at the client’s pace…”2 [30] Cree Nations Treatment Haven does provide an Indigenous healing method which is “similar to those practiced at other centres such as Eeya Keen … and is fully accredited by Accreditation Canada and is approved from Health Canada”3 and, “…. treats post traumatic stress disorder …” [31] The treatment provided by Cree Nations Treatment Haven is holistic and spiritually based, and is not similar to the clinical treatments made available to BN to date. [32] The assault occasioned on BN has had “an unusual, special or out of the ordinary effect” upon BN, pursuant to s 28 of the Act, such that exceptional circumstances exist giving BN an entitlement under s 39(g) of the Act to receipt of “… expenses incurred or reasonably likely to be incurred … if the expense will significantly help the victim recover from the act of violence”. [33] Exceptional circumstances means more than what a victim would ordinarily suffer as a result of an act of violence being committed against them. [34] BN’s circumstances are exceptional in that, despite more than 4 years of clinical treatments from both psychologists and psychiatrists trained in dealing with trauma, the Applicant’s condition of post-traumatic stress disorder, caused from the assault occasioned to the Applicant, has not been able to be addressed. 1 Medical report Ms Chibnall 6 June 2011. 2 Letter Eeya Keen Centre Inc to BN dated November 9 2011, paragraph 2. 3 Exhibit One, page two. -- 11 of 12 -- 12 [35] The expenses sought in relation to the provision of such treatment are reasonable in all the circumstances in that: i. the treatment is only available in Canada; ii. the medical evidence confirms BN is in need of an escort for travel; iii. medical evidence states BN, and BN’s escort, require at least 2 stopovers on each leg of the journey;4 iv. various quotes were provided regarding the proposed travel and the one sought is the cheapest quote that meets the medical criteria. [36] By s 38 the Act VAQ may provide a payment of up to $75,000 to victims entitled to payment under s 28. [37] The Respondent is to pay to the Applicant, BN: i. sufficient sum to permit BN to attend the Cree Nations Treatment Haven program as described in Exhibit 1, due to commence on 25 July 2012 or such other date within the next 12 months, according to BN’s ability to arrange such attendance; ii. an amount to meet travel expenses and those of the escort, Mr Charlie, being Option A in quote from Flight Centre as is set out in Exhibit 2. 4 Medical report Ms Chibnall addressed to VAQ dated 05/01/12. -- 12 of 12 --